Category: Constitution

Title VII is a chapter in the constitution that prevents employers from discriminating workers based on their religious affiliations. The constitution prevents employers from discriminating employees based on their religious practices and beliefs.

The law demands that employers must respect the religious views of employees in the organization. However, the law does not prevent religious organizations from applying strict rules. In the American labor market, religion is one of the contentious issues.

Employers find it hard to solve issues related to religion in the organization. Statistics from the EEOC proves that religious conflicts are in the increase in the American labor market.

The society is becoming diverse and plural implying that cultural conflicts are inevitable. Religious protection clause under article VII has generated a number of issues in organizations. Some of these debates include the following:

• What is a reasonable accommodation?
• What counts as a religious belief that needs to be accommodated?
• Can employees wear religious garbs or symbols in places of work?
• Can an employer demand to know the religion of an employee during recruitment?
• Can employees object to a diversity program or pledge on religious grounds

Employers must give realistic accommodation. For instance, the Seventh Day Adventist believers should be allowed to worship God on Saturday. If a company has a residence for employees, employers must provide space that should be used as a worshiping place.

It is the role of the employer to ensure that an employee worships God in the organization at the right time and in the right place. In this regard, the management should reschedule work to allow a group of employees to exercise their religious practices.

In the organization, article VII requires that the religious beliefs and practices of employees should be given priority over the interests of the company. In this regard, the organization should not question the credibility of any religious belief.

The law aims at covering the beliefs of many employees but not those beliefs belonging to conformist religious groups. In many organizations, the management recognizes the beliefs of Hindus, Muslims, and Christians. Other religious groups are not given an opportunity to exercise their religious right.

Therefore, the management must appreciate the religious beliefs of small groups such as cults, and sects. In the workplace, small religious groups are often denied worshiping rights since their practices are believed to defy societal rules.

Matters related to religion are sacred, and each should believer should be allowed to exercise a religion of his or her choice. In other words, an individual should not be forced to adopt religious practices that are inconsistent with his or her faith.

The organization should ensure that employees wear clothes of their choice. Some religions demand that believers must maintain a certain physical outlook and behavior. For instance, a Muslim believer must dress in a way that is consistent with the tenets of the Islamic culture.

Women are expected to cover their faces and men are supposed to put on a tarbush. For a company engaging in mining, the employee should be advised to put on safety clothes. However, this should not be mandatory. In the Islamic culture, men are not allowed to shave.

The organization must allow an employee to execute his or her duties while observing his or her religious code of dressing. Interfering with the dressing code of an employee might affect his or her duties in the organization.

During recruitment, the employer should not ask employees to state their religious denominations. In other words, religious beliefs should not be used to eliminate employees during a recruitment exercise.

In some organizations, employers ask recruits whether their religious beliefs would prevent them from working during holidays. This question is unacceptable because Article VII states that an employee has religious rights that should not be compromised in any way.

Some employers are tempted to ask employees to state the church they attend. This should be discouraged, and those found engaging in this malpractice should be prosecuted. However, the employer might inform the employee on regular days of work and work shifts.

On diversity, an employee should not be forced to accept some cultures that contradict his or her religious beliefs. In the organization, the management might come up with a diversity program aimed at uniting the cultures of various individuals. Cultural diversity is an important aspect in the organization.

The management should always ensure that employees respect the culture of fellow employees. However, employees should be taken through a learning process implying that they should not be forced to accept the cultural practices that are not consistent with their religion.

For instance, employees are advised to respect the culture of gays and lesbians. The law provides that an individual should not be forced to accommodate a culture that challenges his or her religious practice.

For instance, employers tend to force employees to sign a code of conduct requiring them to tolerate homosexuality. Many religious beliefs oppose homosexuality.

Therefore, employees must be given a freedom to choose whether to associate with a homosexual or not. In the organization, an employee should not be forced to subscribe to a diversity program. This is because such a program might be going against his or her religious values.

An employee should be allowed to exercise his religious rights and freedoms without interference from the management. The management does not have the right to stop an employee from practicing a belief related to his or her religion.

The importance of amendments to the United States Constitution

Any written constitution has to describe clearly the method or process to be used in amending it (Bent, 2007). It is seen as a very significant aspect of all written constitutions. The constitution depends upon the process of amendment to guarantee personal freedom and the nature of the adaptability of the constitution. In this regard, no constitution is possibly considered complete if such aspects are absent. The human generation has to continue growing as time moves, and if no provision is put in place for constitutional modification as needed, they will regress.

The constitution should be a vehicle of life. If it has provisions to easily amend it through a process that allows for political freedom, no conflict can arise between real conditions as well as a legal organization. However, a simple process of amending the constitution creates instability as a trivial smack in popular belief may alter the ultimate custom of the government (Bruns, 2010).

Where on the other divide, the constitution is not easy to amend if the political freedom does not have the path to show its will, some repercussions might occur. First, extra-legal organizations which are strengthened by public opinion may develop. For instance, as is with the election of a president of the US. The constitution has provisions for indirect elections. It has transitioned to a direct one without even having to make amendments to the constitution. Besides, if extra-legal organizations are stopped from developing, the repercussion would be an open rebellion.

The constitution needs to function both in the environment it was created and years later. Therefore, it has to be able to adapt to fresh situations as they come up. Similarly, a constitution that is drafted properly has to have a provision for its amendment in such a manner as to anticipate, as far as is mortally plausible, any radical disturbances.

Different countries adopt varying processes of amending the constitution. In the United States, an interim body can be formed to spearhead the amendment of the constitution. The amendment in question can be brought up through a voting majority of two-thirds in the houses of congress and should be passed. However, it can be done differently in a situation where the congress agrees to a process that follows legislations in the three-quarter majority or conventions of the same measure of all the federal states in the nation. Another well-known device is the referendum. It aims at focusing the amendments to the people for endorsement. It is attributed to the most democratic process.

Emphasis should again be put on the idea that no constitution can be thought of as being final or static. A drafted constitution needs to be changed because of fresh political ideals. The need to amend and the provision set forth have to be flexible so that changes are practically possible and somehow rigid to prevent many unnecessary modifications (Graham, 2009).

The amendments to the United States of America constitution have significant effects on the legal system. For instance, when the amendments are done, the evaluation and later execution are facilitated by the legal bodies. The laws made are implemented through the legal justice system. The bill of rights, for instance, is under the forte of the judiciary and is well used to interpret the law.

Which amendment in the Bill of Rights offers the most protection for defendants?

In my analysis of the bill of rights, the sixth amendment provides the most protection for defendants. It states that in all criminal proceedings, a defendant will have the right to a fast and public trial conducted by a jury of the state of America, which is non-partisan. This jury should be of the state and district where the apparent felony is said to have occurred. The district should also have been established by law beforehand.

The defendant should also be duly informed of the nature of the complaint that he is being accused of. He also has the right to have a public confrontation with the witnesses brought to testify against him. This amendment also gives provision for a defendant to compulsorily obtain a witness who will testify in his favor. Lastly, the defendant is entitled to the help of a counsel placed in his defense by the state (National Archives, 2007).

Which amendment in the Bill of Rights offers the most protection for victims?

A close analysis of the bill of rights shows that the fourth amendment protects the victims more. The reason is simple. The freedom and rights of individuals to be safe in their existence, abode, and possessions against arbitrary searches and confiscations shall be honored and not violated, and no permits will be issued, but only on the credible reason that is proved through oath or verification, and specifically clarifying the area to be ransacked as well as the individuals or possessions to be confiscated (National Archives, 2007).

The effects of the US constitution to me as a student

The constitution, which was created by our ancestors centuries ago still has a significant effect on our daily lives (Jerome, 1995). With my current knowledge, I am surprised at the several ways in which the constitution as well as the bill of rights affects my rights as a student. Significant rights and freedoms like due procedures, the right to free speech, and the freedom to associate with anyone, among other rights are well safeguarded in the United States constitution.

The aspects of a student’s life which are connected to the constitution are the freedom to associate, the right to free speech within the precincts of college, fees charged on students, educational injustices, and contracting. Most of the rights and freedoms that the students are exposed to in the institutions of learning today can be attributed to the United States’ constitution and the bill of rights.

The right to assemble, for instance, is cushioned by the first amendment in the bill of rights. It says that the congress will create no law that honors any establishment of religion, or stopping the free use thereof, or reducing the right to free speech, or the one accorded to the press; or the freedom of individuals to assemble peacefully and to request the government for reparation of grievances. This freedom to assemble is what permits students to plan and get memberships into their student governing bodies. The organizations that students join address the concerns of the entire student population. They also link the students with the administration of the college.

The right to due process, for instance, is safeguarded by the fifth amendment in the bill of rights. It states that no one will be held liable to answer for a capital offense or lesser felony. It is also applicable to a prosecution in court except in scenarios cropping from land, water forces, and in the military force held in service in instances of war or public perils. Individuals will also not be subjected, to a similar felony that is placed twice concerning the danger of life, among other issues.

References

Bent, D. (2007). Constitution Convention. New York: McGraw-Hill.

Bruns, R. (2010). The Creation of the U.S. Constitution. New York: Sage Publications.

Graham, J. (2009). Free, Sovereign, and Independent States: The Intended Meaning of the American Constitution. London: Routledge Publishers.

Jerome, H. (1995). The Founding Era. New York: The University Press of Kansas.

National Archives. (2007). Bill of Rights. London: Prentice Hall.

Privacy

The First Amendment, Section 1 in the US Constitution which protects person freedom of religion and expression (assembly, speech and request the government to look into their problems) against government intrusion, while in the fourth Amendment, Section 1 in the US Constitution, protects a citizen or his premise from unreasonable searches by the authority without a warrant, the warrant must be issued by the court under an Oath and it should clearly state the place or the person to be searched.

In an incident in which the prisoner was searched by a female officer in the absence of a male officer while in prison, the Fourth Amendment of the prisoner was not violated, because the female officer did not use excessive force against the prisoner, therefore the female office is entitled to immunity.

The prisoner should not have been searched by a female officer because it is humiliating, the law should be changed so that only female officer should search women and their men officers should search only male prisoners.

Religion

The first Amendment Section 1 in the US Constitution protects person freedom of religion (state and religion must be separate entities) and expression from the government intrusion

In an incident in which the civil prisoner whose books were confiscated by the prison waders, his rights were not infringed according to the first Amendment of the Constitution of the United States. The prisoner did not state if his books were given to other prisoners to read after they were confiscated by the guard. With the support of the first Amendment Section 1, the guard was exonerated from any wrongdoing and was entitled to immunity.

The prisoner was right when his books were taken from him, his rights were violated according to the First Amendment because the officer did not state if the books will cause harm to the prisoner and other prisoners that were in a cell together.

Law on Voting

The fourteen Amendment Section 2 of the US Constitution, gives every citizen of America the right to vote except the ones who have been found to participate in a crime or other rebel groups against the government.

In an incident in Tennessee in which convicted felons after he was through with his sentence in jail, he applied for restoration of his voting right as a US citizen. He was denied those rights because under the US Constitution, Person found to have committed a crime is not eligible to vote.

This law on voting should be changed to allow people who have finished their sentences in jail to be allowed to vote. If child support law can be reinstated to people who have finished serving their sentences in jail, then these people should be allowed to vote on that basis.

Medical Treatment

The eight Amendment, Section 2 of the US Constitution which protects every citizen in the US against cruel treatment or Infliction of unusual punishments, also protects a citizen against being imposed excessive fine.

In an incident in which the prisoner was denied treatment as a result of suffering from Hepatitis C also is entitled to be compensated by the authority because the clinical director recommended treatment to the prisoner but the senior warder in charge of the prison ignored this directive and this led to his health being compromised. The court found that his rights as a result of the eight Amendment were violated.

The court was right on that because every person irrespective of a prisoner who has committed first-degree murder and has been convicted on the same should be given proper treatment.

Transsexual

The eight Amendment, Section 2 of the US Constitution which protects every person against cruel treatment or Infliction of unusual punishments, also protects him against being imposed against the excessive fine.

In an incident in Wyoming in which a transsexual prisoner who lived life as a female but had male genitalia, was isolated for 14 months from other prisoners as a result of his life being in danger from other prisoners, while in isolation he was provided with everything that a prisoner needs. The right of this prisoner was not violated According to the eight Amendment Section 2 of the Constitution because he was not mistreated as a result of that.

The court was right on this one, the prison guard was protecting this prisoner from being mistreated by the rest of the prisoners because he was a transsexual.

Telephone Access

The First Amendment, Section 1 in the US Constitution which protects a person’s freedom of expression-assembly, speech and requires the government to look into their problems from the government intrusion.

The monitoring of the prisoner conversations did not violate the First Amendment Section 1 of the Constitution when the federal Authority is required to tap telephone conversations if they knew a person is involved in a criminal act. They will only tap people’s conversations if they have a warrant to do so and should be from the court. This law enables the police to monitor phone calls conversations for security purposes in America.

This law should be changed because every citizen in America has a right to privacy, by tapping people’s telephone conversations you are violating their privacy.

Smoking

The eight Amendment, Section 2 of the US Constitution which protects every citizen in the US against cruel treatment or Infliction of unusual punishments, also protects a citizen against being imposed excessive fine.

In an incident in which a prisoner was housed with another smoking prisoner in the same cell and was exposed to secondhand smoke, due to that he suffered various tobacco-related complications. The eight Amendment of the prisoner was violated. The prisoner deserves some compensation from the authority because some cruel was used against him.

Marriage

The eight Amendment, Section 2 of the US Constitution which protects every person against cruel treatment or Infliction of unusual punishments, also protects him against being imposed against the excessive fine.

When the prisoner informed the authority in prison that he was married in an incident that happened in Pennsylvania correction center, He was not required to follow the directive that came from the court to marry his fiancée because he had not divorced the woman in his first marriage. In US law it is a crime to marry twice or before you get a divorce from the previous marriage.

Procreation

The eight Amendment, Section 2 of the US Constitution which protects every person against cruel treatment or Infliction of unusual punishments, this law also protects a person against being imposed excessive fine.

In an incident in which a detained pregnant woman was suffering from amniotic leakage, which could lead to the death of an unborn child. The authority in charge of the facility was not entitled to immunity because he was informed by the woman of her conditions but the authority that was in charge ignored her genuine medical needs. The woman’s eight amendments were violated as a result of that.

The court was right on that because every person irrespective of a prisoner who has committed first-degree murder and has been convicted on the same should be given proper treatment.

Introduction

The article “Does the U.S. Constitution need an equal rights amendment?”, Which was published in The Journal of Legal Studies in 2006, is devoted to the discussion of the problem of the Equal Rights Amendment (ERA) ratification in the U.S. Constitution.

The authors of the article touched upon the legal issue, which divided the opinion of American legal experts on the ERA ratification at the federal level. The article is aimed at the law-makers, practitioners as well as students majoring in Law.

Article Summary

The main body of the article is logically divided into four parts. In the first part of the article, the authors present the history of the debates on the topic, highlighting the main ideas expressed in favor and against of the ERA ratification in the U.S. Constitution.

The two opposing sides can be determined: the one side expressing the idea that the ERA ratification in the U.S. Constitution will directly influence the actions of the court and rulings on sex discrimination cases and another one point that it will cause the indirect impact which will, firstly, result in the courts applying the higher standard of law and, secondly, will lead to the decisions favoring litigants alleging discrimination (Baldez et al., 2006).

Besides, the authors indicate that the problem of federal ERA implementation is critiqued by many for its irrelevance because this kind of problem is solved by the social changes.

The second part of the article deals with data and research methods. The authors used the empirical method to analyze the problem. In particular, they developed the model describing the impact of ERA ratification in the U.S. Constitution. In the frameworks of the model, the sex-discrimination cases were used as unit inputs, while the variables included the following: “the presence or absence of ERA; the standards court use to adjudicate sex discrimination claims; case outcomes” (Baldez et al., 2006, p. 254).

The third and the fourth parts of the article touch upon the results obtained from the model. The former explains that no direct influence of ERA has been observed and the later tells about the presence of the indirect effect. Also, the implications of the findings are discussed in the fourth part of the article. The authors sum up the findings as follows,

“…just as so many judicial specialists have suggested, we cannot and should not count on rules and principles of law to do all the work in explaining the choices judges make; comprehensive accounts require consideration of a range of forces” (Baldez et al., 2006, p. 273).

Strengths and Weaknesses of the Article

The article “Does the U.S. Constitution need an equal rights amendment?” represents a valuable material for studying by law practitioners and students. The article has its strengths and weaknesses.

Although we can state that it encompasses profound research on the issue of ERA ratification at the federal level and can assist in the understanding of the essence of the problem, the audience should be ready to encounter the difficulties in the interpretation of the terminology included in the article. The knowledge of the specific terms definitions is required for the in-depth understanding of the article.

Besides, it is advised to review the history of ERA because the authors described it only briefly concentrating more attention on the ideas expressed in the debates. However, it should be said that the article presents an interesting topic of study in Law. The authors focused their efforts on the urgent problem in the legal practice and the court’s activity in the United States. Undoubtedly, the empirical results of their model give a basis for further research.

Conclusion

In my opinion, in spite of the fact that the article is difficult for understanding, it represents an interesting field for studying the law. It motivated me to seek additional information on the issue and to get a broader vision of the problem.

Reference

Baldez, L., Epstein, L., & Martin, A. D. (2006). Does the U.S. Constitution need an equal rights amendment? The Journal of Legal Studies, 35(1), 243-283.

The major agreement and compromises that were mainly discussed in the US constitution were the issue of slavery, and the content of the legislature. The people who were at the convention were concerned about slavery in America. This was to be agreed between the Northern and the Southern delegates. The Southern delegates wanted slavery to continue, so that their economy could be boosted, but the Northern delegates wanted the end of black slavery (Henretta, Brody, & Dumenil, 2007).

The Northern delegates were against this slavery not because they were caring for black people, but because they feared the increment of black people population in Southern part. This was regarded as a complicated agreement although at the end both sides came into agreement. In January 1808, the slave trade was officially terminated in the United States constitution.

There was another major agreement that was to be made about the legislation. Hamilton plan was considered being the most appropriate. Other men in the convention accepted the features in his plan. It was agreed to have a bicameral legislation in the constitution that is both the lower and the upper house (Jesup, 2009).

The lower house would be the assembly that would be elected by people, and the other one the senate offering lifetime services. The senate would be made of two senators, each representing one state. The venues and times of conducting elections of government officials were agreed upon in the constitution. The house membership, rules and regulations to be adhered to were also included in the constitution.

The process of legislation and revenue bills were stated clearly in this constitution and agreed upon. Both the powers of the congress and his limitations on duties were deeply discussed and the final solutions were written down. It was also agreed that different states would be denied some powers like entering into a treaty concerning sensitive matters (Henretta, Brody, & Dumenil, 2007).

The powers and responsibilities of the president and his vice were agreed upon. For instance, it was agreed that both the president and his vice should serve in their offices for a period of four years. Any conviction of high crimes like treason was decided to be the major reason behind disqualification of high government officials including the president.

The constitution also stated clearly about the bill of rights. The first amendment was the freedom of religion and press (Jesup, 2009). This consisted of the freedom of people to peacefully assemble, and respect of religion beliefs. Second amendment was the right to bear arms to the militia people due to security purposes of the nation. The third amendment was about quartering of soldiers, which stated that no soldier should be quartered when the nation is in peace without the knowledge of the house owner.

The fourth amendment was on search and Seizure stating that people should be offered security outside and inside their houses. People should also be protected against unreasonable searches (Jesup, 2009).

The Fifth Amendment is about the trial and punishment that any person has a right to refuse to be held answerable for a crime if there is no accusation of a grand jury. The sixth amendment is about the right of people to speed up their trials and confrontation of witnesses. Other rights that were agreed upon include removal of cruel and unusual punishment and the right on construction of constitution.

Reference List

Henretta, J. A., Brody, D., & Dumenil, L. (2007). Americas History: Volume 1: to 1877. (6^th ed), ISBN 0312452853, Bedford Books, New York.

Jesup, F. (2009). The American Constitution. ISBN1110562799, 9781110562794, BiblioLife, Boston.

The U.S. Constitution: Protection of Rights and Vagueness

The premises for the provision of rights to every single denizen of the U.S. population can be viewed as the key asset of the Constitution. The Fourteenth Amendment, which guarantees equal rights and protection for all members of the American society (14th Amendment to the U.S. Constitution, n. d.), can be viewed as the basic example of the positive effects that the Constitution has on the legislation of the state.

One must admit, though, that the American Constitution has several weaknesses its vagueness being the key one. Although the specified feature can be interpreted as positive when considering the promotion of a positive change in the society, it may also lead to a drastic misinterpretation and misuse of the key principles listed in the Constitution.

Maintaining the Strength, Addressing the Weakness

However, the paper alone cannot possibly create the environment, in which all people are treated equally and where the members of the U.S. society can live peacefully and without any conflicts. Instead, the Constitution must be used as the tool for managing the emerging conflicts and setting guidelines for the members of society to comply with. Particularly, the strengths of the specified document can be enhanced by developing the laws and regulations that will promote equity among all tiers of the American society.

The weakness regarding the possible ambiguities in the U.S. Constitution can be addressed by assuming that the Constitution presupposed equality for all people (Azevedo, 2015). Thus, the premises for a fair judgment and the adoption of reasonable laws and regulations can be created (Dom, 2014).

It should be borne in mind, though, that most of the issues that could be defined a the weaknesses of the Constitution have already been identified and addressed properly.

For instance, the issue regarding equity of the U.S. citizens had to be addressed at some point of the American Constitution development. Though it is hardly believable nowadays that there was appoint in the U.S. Constitution development when the Bill of Rights had not been suggested yet, the lack of equality among the American population used to be a major issue.

It would be wrong to claim that the present-day political and social landscape created with the help of the American Constitution is completely deprived of any trace of inequality; according to the recent study, gender and racial prejudices remain an infamously common part of the American society.

Occurring at a variety of levels, starting from the social one and up to the communication in the educational sphere, the specified issue needs to be addressed with the help of a corresponding amendment to the U.S. Constitution. This amendment needs to spell out the issue of human and civic rights, thus, leaving no room for discrimination in the U.S. society anymore.

Annotated Bibliography

14th Amendment to the U.S. Constitution. Web.

An excerpt from the U.S. Constitution provided at loc.gov, was used as the support for the argument regarding the Constitution strengths. Seeing that the excerpt was taken from a governmental website, it can be considered quite credible. The validity of the source is defined by its direct relation to the matter of discussion. Therefore, it can be regarded as appropriate as a piece of evidence.

Azevedo, A. A. (2015). No salvation through Constitutions. Independent Review, 20(1), 33-46.

The source shed some light on the problems related to the Constitution and its vagueness. The authors make it very clear that the current principles of justice and equality need to be spelled out in a more obvious manner in the Constitution. The article contributed to the understanding of the current issues regarding the U.S. Constitution and the legal system.

Dorn, J. A..(2014). Equality, justice, and freedom: a constitutional perspective. CATO Journal, 34(3), 491-517.

Speaking of the second source, one must give it credit to as scholarly research carried out by experts. Since the paper was published in 2014, it should also be considered an up-to-date source, which makes it valid. The source was used as the means of supporting the key argument concerning the means of managing the strengths and weaknesses of the U.S. Constitution.

Heading of the case

The case was provided between the Attorney General of Quebec – an appellant v. the Attorney General of Canada – a respondent with Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson J.J. present. It was devoted to appeal to the court about regarding unconstitutional the veto set on the agreement between Canada and nine other provinces.

Facts held during the court trial

The case began on April 7, 1982. The appeal was directed at considering the veto set on the First Reference, by the Quebec Court of Appeal. The appeal is considered to be legal according to “s. 37 of the Supreme Court Act and s. 1 of An Act respecting a reference of the court of appeal”.¹ The reason for the appeal was the agreement that took place on November 5, 1981, between the Government of Canada and eight other provinces. On November 18, 1981, the draft of the agreement was ready. The Government of Quebec expressed its formal disagreement with the proposed draft of the resolution. It means that the Government of Quebec formally vetoed the Resolution.²

Issue

The question which was presented in the Court of Appeal is whether the consent of the Province of Quebec constitutionally required by convention for the adoption by the Senate and the House of Commons of Canada of

Resolution the purpose of which is to cause the Canadian Constitution to be amended in such manner as to affect

1. the legislative competence of the Legislature of the Province of Quebec in virtue of the Canadian Constitution
2. the status or role of the Legislature or Government of the Province of Quebec within the Canadian federation and does the objection of the Province of Quebec render the adoption of such resolution unconstitutional in the conventional sense.³

Judgment

The answer of the Court of Appeal to the question was negative. The notions used in the decision were similar to those which were used when the decision by the Quebec Court of Appeal was provided.

Holding

Under the Canada Act 1982, two additional submissions (law), and the decision of the Quebec Court of Appeal, the negative answer to the appeal was accepted.

Ratio Decidendi

It was concluded that the decision of the Court of Appeal was not the subject matter for the discussion in another Court of Appeal.

Reasoning

The court made a resolve because of a number of reasons. First, when the decision was made by the Quebec Court of Appeal, not one person but a number of people did it. There were two submissions that directed the Court’s decision. The first one was “convention requiring the unanimous consent of the ten provinces to any constitutional amendment of the type in issue”⁴ and the second one was the fact that Quebec had a right to veto any constitutional amendment which was aimed at affecting the legislative side of the Province.⁵

Dissenting/Concurring Opinion

According to the opposite opinion, the Canadian Charter of Rights and Freedoms presented in the Canada Act 1982 (one of the arguments in the court) is not identical to the Charter of Rights and Freedoms. That is why it may be concluded that the amendments of the Constitution of Canada differ greatly from the amending of the First Reference.

Reference

Reference re: Amendment to the Canadian Constitution, [1982] 2 S.C.R. 791.

Footnotes

1. Reference re: Amendment to the Canadian Constitution, [1982] 2 S.C.R. 791, p. 795.
2. Ibid.
3. Ibid., p. 798.
4. Ibid., 800.
5. Ibid.

The main source of the law in the People’s Republic of China is the Constitution which was firstly adopted in 1982. The Constitution consists of the preamble and four chapters, including 138 articles (Constitution of the People’s Republic of China 2004). The Constitution was revised four times, and amendments were added to the document in order to expand and explain the definite aspects presented in the Constitution. The amendments were proposed to change the formulation of the certain principles and laws to provide the statements correlated with the modern national tendencies influenced by global processes.

Nevertheless, the current version of the Constitution based on the socialistic ideas does not meet the requirements of the intensively developing Chinese society fully. It is necessary to provide the new version of the Constitution in order to respond to the interests of the country’s social groups and administrative territories. Thus, in spite of the fact Shaanxi Province was discussed during a long period of time as the centre of the conservative and revolutionary communistic forces in the country, today the governmental representatives of Shaanxi are oriented to reforming the Constitution to guarantee the necessary level of the social and economic development within the country.

The promotion of constitutionalism’s tendencies in China is complicated with references to the political organization of the state and developed ideology. The supporters of the political reforms are oriented to constitutionalism as the alternative to democracy because of the impossibility to change the current regime within the state (Bai and Lin 2005). That is why, the process of working out the new Constitution is significant for representatives of different social and political groups as well as administrative territories. Shaanxi Province with the centre in Yan’an is historically associated with the revolutionary forces of the Communist Party of China.

However, during the last decade, the local government of Shaanxi Province becomes to depend on the ‘younger’ politicians who are oriented to the economic and social progress of the province and state (Chan and Gao 2008). That is why, the representatives of Shaanxi are inclined to promote their interests in developing the new version of the Constitution. Furthermore, the members of the local government in Shaanxi can use their authority in order to stimulate the development of the constitutional reform (Yang 2004). The triggers for the development of the constitutional reform are changes in the business environment of the province and country which contribute to discussing the questions of property rights, human rights, corruption, and decentralization of the political power.

Today, the main political authorities in Shaanxi are the representatives of the Chinese ‘fifth generation’ of politicians whose views are characterized by the focus on reforming the current Constitution. Thus, according to Li, “the growing diversity within China’s leadership and the dynamic interdependence among competing factions are particularly evident in the fifth generation”, and moreover, the current balance of powers in many Chinese provinces such as Shaanxi can “contribute to the diversity of outlooks and stances on major issues, such as economic globalization, social justice, political democratization, and environmental protection” (Li 2008, 53). Thus, the main goals followed by the representatives of Shaanxi Province to participate in negotiations on developing the new Constitution of China are (1) to accentuate the necessity of working out the concept of human rights, (2) to state property rights and to overcome corruption with references to these rights, (3) to reform the approach to the national economy and economic market, (4) to support the idea of decentralization of powers as the first step to the democratic governance appropriate for the political situation in China (Bockenforde, Hedling, and Wahiu 2011; Deng 2008; Saich and Yang 2003).

The current Constitution has a lot of weaknesses and limitations associated with the human rights and the rule of law. The rights of many people are violated in relation to the statements presented in the Constitution because definite human rights are even not reflected in the document due to their anti-communist character. Chinese citizens are not protected in the state regarding their right for freedom (Rowen 2007; Xiao 2002). The accentuation of the rule of law can lead to the focus on the human rights. Thus, “law must be generally applicable, no matter who is the subject. Theoretically, all kinds of powers must be restricted and operate under supervision” (Chen 2012, 31).

Today, many people in Shaanxi Province suffer from discriminating because their human rights which are typical for the majority of democratic states are not set in the Constitution correctly and not followed accordingly (Guan 2003). Emphasizing the equality of citizens, the statements provided in the current version of the Constitution refer more to the duties than to rights, especially with references to human rights declared in the democratic states (Han 2005). Thus, the concept of human rights presented in the Chinese Constitution should be revised along with accentuating the idea of the rule of law.

The economic situation of Shaanxi Province changed significantly during the last decade. Today, many industries are developed in the region, and accents are made on developing the business principles according to the norms of the global market (Chan and Gao 2008). However, the private property of the business communities cannot be protected properly in relation to Article 11 and Article 13 of the Constitution and current amendments to the articles. Thus, the businessmen of the region state the necessity of developing the law in relation to protecting the private property. Moreover, the problem of corruption is observed (Wedeman 2004). There were attempts to overcome the issue, but “the rising number of corruption cases reveals that the efforts by the Chinese authorities to control corruption have not achieved noticeable results” (Chan and Gao 2008, 98). This problem should be also discussed in association with the rule of law and protecting the human rights as well as property rights of citizens.

The Chinese economy develops according to the socialist pattern. However, the requirements of the modern global markets are not correlated with the socialist principles. This situation creates difficulties for the national economic development and for building the advantageous international market relations (Ministry of Foreign Affairs of PRC 2009). In spite of the fact the amendments to Article 7 and Article 11 of the Constitution aimed to regulate the situation and provide possibilities for the development of the new market economy system, those efforts were not enough to state the reformation of the national economy, used approaches, and principles. Today, the representatives of the business and political circles of Shaanxi Province emphasize the importance to transform the current economic system into the market one at the governmental level and with references to the main law of the country because of the necessity to respond to the country’s ideology (Hand 2011; He 2010). Moreover, the business class of Shaanxi Province pays attention to the role of governance in the process.

Thus, the current controversial situation in China associated with many political scandals can be discussed as the evidence to state the necessity of the political reforms. The representatives of the political forces in Shaanxi Province are inclined to refer to the fact that the accents on centralization of powers in the country cannot contribute to the development of the effective economic system and appropriate Constitution which principles are based on the rule of law. To contribute to the statement of the rule of law in the country with references to constitutionalism, it is significant to reform the political organization of China (Kui 2003). Local authorities should receive more full powers, and the power of the central government should be restricted in relation to the questions associated with the sphere of the local authorities’ influence (Huang 2003; Killion 2005). These principles which can be discussed as the steps to decentralization of the power should be reflected in the revised version of the Constitution.

China is on the threshold of the significant changes in the political and social life of the country. The development of the new version of the Constitution is the main step in building the new society. In spite of the fact the majority of the country’s politicians follow the ideals of socialism and communism, many representatives of the ‘younger’ wave of politicians and influential figures in the business world propose their visions of the perspectives for revising the Constitution. Thus, the basic points in which the citizens of Shaanxi Province are interested are the concentration on the rule of law, human rights, property rights, and decentralization of the powers. That is why, the goals of the representative group from Shaanxi Province are formulated according to these principles.

References

Bai, Gang, and Guanghua Lin. 2005. An Introduction to Constitutionalism. China: Social Science Academic Press.

Bockenforde, Markus, Nora Hedling, and Winluck Wahiu. 2011. A Practical Guide to Constitution Building. Sweden: IDEA.

Chan, Hon, and Jie Gao. 2008. “Old Wine in New Bottles: A County-Level Case Study of Anti-Corruption Reform in the People’s Republic of China”. Crime Law and Social Change 49(10): 97-117.

Chen, Bo. 2012. “China’s Dilemma in Human Rights: Through the Perspective of Critiques Abroad and China’s Response”. Journal of Politics and Law 5(3): 29-32.

Constitution of the People’s Republic of China. 2004. Web.

Deng, Yang. 2008. China’s Struggle for Status: The realignment of international Relations. London: Cambridge University Press.

Guan, Jinhua. 2003. The Protection and Legal Practice of Fundamental Human Rights. China: Xiamen University Press.

Han, Dayuan. 2005. Foreign Constitutions. China: Renmin University of China Press.

Hand, Keith. 2011. “Resolving Constitutional Disputes in Contemporary China”. East Asia Law Review 7(8): 51-159.

He, Jian. 2010. “The Comparison of Constitutional Protection of Human Rights between China and South Africa”. Asian Social Science 6(6): 50-53.

Huang, Ping. 2003. China Reflected. Hong Kong: ARENA.

Killion, Ulric. 2005. “China’s Amended Constitution: Quest for Liberty and Independent Judicial Review”. Washington University Global Studies Law Review 4(1): 43-80.

Kui, Shen. 2003. “Is It the Beginning of the Era of the Rule of the Constitution?” Pacific Rim Law 12(1): 199-232.

Li, Cheng. 2008. “China’s Fifth Generation: Is Diversity a Source of Strength or Weakness?” Asia Policy 8(6), 53-93.

Ministry of Foreign Affairs of PRC. 2009. China Foreign Affairs. Beijing: World Affairs Press.

Rowen, Henry. 2007. “When Will the Chinese People Be Free?” Journal of Democracy 18(7): 38–52.

Saich, Tony, and Xuedong Yang. 2003. “Innovation in China’s Local Governance: ‘Open Recommendation and Selection’”. Pacific Affairs 76(2): 185-205.

Wedeman, Alan. 2004. “The Intensification of Corruption in China”. The China Quarterly 180(11): 859-921.

Xiao, Beigeng. 2002. The Thought of Constitutional Legal Order. China: Chinese People’s Public Security University.

Yang, Haikun. 2004. New Theory of Constitutional Fundamental Rights. China: Beijing University Press.

Britain does not have a formally written constitution. Instead, the country relies on common law precedents and on conventions to serve the role that statute law serves in other countries. The common law precedents in Britain, which can be written or unwritten, and specific treaties and treaties have constitutional force.

Reasons why Britain needs a Written Constitution

Several arguments coming from different authors have opened up debate as to why it is important for Britain to have a written constitution. As a developed nation, it is relied upon to lead from the front and set standards of rule through a well researched, agreed on and well-documented constitution (Loughlin, 2013).

According to Thompson (2012), Britain is a prominent country in the European region, and in the whole world. Thompson (2012) specifically notes that Britain’s constituent nations look upon it to for direction in leadership, cultural practices, beliefs, values and attitudes.

As Jennings (2011) points out, the nation’s constitution is a sum of all its past experiences. Although Britain did not enter into democracy through an uprising, it is important for it to have a well-documented constitution that outlines the rules for every assembly, and which can be followed by all its constituent nations (i.e. Scotland, Wales and England).

According to Jennings (2011), civil wars across the world are as a result of lack of well formulated, researched and agreed upon practices that are meant to keep and sustain social order. Recently one of Scotland went for a referendum in order to gain independence (Morris, Boston &Butler, 2011). The action by Scotland is arguably due to lack of cohesion among the national entities that makeup Britain, something that perhaps could be avoided if the country had a written constitution.

There is a need for well laid down procedures under which a leader of Government, in this case the Prime Minister is elected, leaves office or resigns. Additionally, Britain also needs to document conditions under which the Prime Minister can be removed from power. The current governance structure has no documentation on how these cases can be handled, and this leaves avenues of misconduct by those in charge of government (Thompson, 2013).

Bennett and Solum (2011) argue that leaving the process of making laws to one institution is a dangerous precedent. The two authors note that the institution can be subject to sectarian and partisan interests. Such biased interest can yield major disagreements and, therefore, compromise the sovereignty of the nation or yield conflict. The foregoing possibility provides one more reason Britain should have a written constitution (Bennett & Solum, 2011).

The British beliefs, values and attitude are clearly demonstrated in the social order that exists. The monarch system is arguably well organized with the Queen being the center of power. A written constitution would, however, ensure the influence of lawmakers is kept in check and that avenues of partisan interests in the passing of important legislation, are reduced. Without a written constitution, lawmakers have absolute influence on all aspects of laws. Such influence can lead to the creation of very unpopular laws that may lead to corruption (Krishnan, 2007).

All areas of rule and control of public affairs and institutions have to be accounted for (Webley & Samuels, 2012). Notably, Britain has integrated creation of public awareness in the existing laws through the education system. Consequently, Britain’s citizens learn about existing laws in schools and colleges. However, attempts to create public awareness are not effective since the laws keep changing (Webley & Samuels, 2012). Constant changes have arguably, therefore, left the public with stacks incoherent laws.

Proponents of a written constitution argue that Britain’s government is imposing its will on its citizens. They argue that there is a need establish the relationships between these institutions and ensure that they (institutions) adhere to specific policies, laws and regulations (Webley & Samuels, 2012).

According to Bliss (2011), the British citizens are well informed about political matters. They are capable of keenly analyzing the legislative potential in the leaders they elect. The standards of electing competent and most trusted leaders have been set so high in the country, such that there is no need for a written document to guide the process.

According to Great Britain, Parliament, House of Commons and Culture and Sports Committee (2010), there are propositions, coalition agreements and substance of change that are in use in Britain. What remains, therefore, is all the foregoing to be formalized and made into a constitution. Since citizens are Britain’s major stakeholders, Loughlin (2013) argues that they (citizens) should demand for a codified constitution from the government.

Loughlin (2013) explains that international laws are always changing. Britain should demonstrate to the world that domestically, its laws are up to standard. With globalization and the formation of regional unions such as the European Union, domestic laws will need to be harmonized with regional or global laws. Without a written constitution, Britain will arguably find it hard to harmonize its laws with those of its global or regional bodies.

As Ducat (2012) argues, Britain’s claims that it has a set of laws and policies of checking the excesses of rule are not satisfying. In the said laws, there are silent clauses in regard to how the state plans to expand and contract other territories. From history, Britain took over control of many countries forcefully (Clemit, 2011; Grafton, Most & Settis, 2010). Having a written constitution that guarantees the rights of people from other nations that are likely to be contacted by British is thus paramount (Anyangwe, 2010; Chopra, 2011).

Conclusion

For any written constitution to be created, the citizens must agitate for it. Britons have showed little interest in a written constitution. Arguably, their lack of interest shows that the public has no desire for change. In addition, the constitution is usually passed through a referendum, which is asked for by the lawmakers. The lawmakers in Britain rarely discuss the constitution. Instead, they are always creating pieces of legislation that are uncontrolled.

References

Anyangwe, C. (2010). The secrets of an aborted decolonization: The declassified British secret files on the Southern Cameroons. Mankon, Bamenda: Langaa RPCIG.

Bennett, R.W., & Solum, L. (2011). Constitutional originalism: A debate. Ithaca, N.Y: Cornell University Press.

Bliss, M. (2011). Writing history: A professor’s life. Toronto: Dundurn Press.

Chopra, R. (2011). Unnatural rebellion: Loyalists in New York City during the revolution. Charlottesville: University of Virginia Press.

Clemit, P. (2011). The Cambridge companion to British literature of the French revolution in the 1790s. Cambridge: Cambridge University Press.

Ducat, C. R. (2012). Constitutional interpretation: powers of government. London: Wadsworth Publishing.

Grafton, A., Most, G. W., & Settis, S. (2010). The classical tradition. Cambridge, MA: Belknap Press

Great Britain, Parliament, House of Commons, & Culture and Sports Committee. (2010). BBC annual report 2008-09: Fifth report of session 2009-10. London: Stationery Office.

Jennings, I. (2011). The approach to self-government. Cambridge: Cambridge University Press.

Krishnan, S. (2007). Reading the global: Troubling perspectives on Britain’s empire in Asia. New York: Columbia University Press.

Loughlin, M. (2013). The British constitution: A very short introduction. Oxford: Oxford University Press.

Morris, C., Boston, J., & Butler, P. (2011). Reconstituting the constitution. Berlin: Springer.

Thompson, W. C. (2012). Western Europe (31^st ed.). Lanham, MD: Stryker-Post Publications.

Thompson, W. C. (2013). Western Europe (32^nd ed.). Lanham, MD: Stryker-Post Publications.

Webley, L., & Samuels, H. (2012). Public law: Text, cases, and materials. Oxford, UK: Oxford University Press.

Introduction

A constitution is an important document about the governance of a given country. It provides a set of rules that guide the affairs of the state. In the COAG meeting, several proposals were made to amend the Australian constitution. For example, it was decided that a new form of appointment procedure should be used to select representatives to the Queen. In this case, the representatives were to be elected by their respective parliaments. However, the Premier of Victoria was not happy with the way the matters were handled. The official was not impressed by the various attempts to politicize the position of representative to the Crown. Their reservations notwithstanding, the Premier did concur with the proposals made in the COAG meeting. As a result, an amendment was the only way the proposed measures could take effect.

In this paper, the author provides legal advice to the Premier. The officer sought expert opinion on three major issues. The first is the process to be followed before such a proposal could take effect. The assumption is that the application will be a formal amendment to the constitution. The second issue involves the alternative course of action that the government can take if the Senate rejects the proposal. Finally, the Premier expressed the desire to know the process involved before the suggestions could become formal amendments to the Victorian constitution.

The Process to be followed

Before an amendment to the constitution can take effect, several factors need to be put into consideration. For example, it is important to ensure that the proposal to change the laws is in response to the constitutional requirements that underlie its operationalization. The first requirement that should be met in the initialization of the process that sets the stage for the amendment of the constitution is prior notice. The public should be notified of the intention to amend the laws. The notification should be expressed in a clear, logical, and precise manner. It can be achieved through a gazette. The essence of this requirement is to enlighten the people and make them aware of the issue that is about to be changed. The notice should be placed in an open area that is recognized and accessed by the majority of the citizens. Accessibility of the proposed item should be made possible. As a result, people are allowed to take sides depending on how they feel about the issue.

It is the role of the government to ensure that the proposition is in line with all constitutional provisions and administrative principles. In this case, it must be established that the proposal is not built along the lines of absolute biasness. It is important to establish that the supporters of the move were not under actuation of business when they were drafting the proposals. If it is found that the parties were under pressure, the decision is disregarded.

The principle of legality is another key feature that must be taken into consideration. It is important to address this issue before changing the administrative structures of the constitution. In some cases, other laws related to administration may contradict the proposed changes. In such cases, it is plausible to do away with the proposal. Similarly, the principle that underlies legitimate expectation should be adhered to. The citizens expect their leader to represent them before the Crown. As a result, any action that is likely to affect this representation must be legitimate. Furthermore, it must be something that people can identify within their rational thinking. To this end, they must be aware that such a movement exists.

Public opinion is another factor that should be addressed in the process of initiating formal amendments to the constitution. It is the responsibility of all citizens with sound minds to take part in the affairs that are pertinent to the state. Public enlightenment should be part of the process leading to the amendments.

The fact that one can propose an amendment to the constitution does not mean that such contemplations will be successful. Some proposed changes are not allowed by the objects and the spirit of the constitution. With regards to the current COAG proposal, the Premier should know that the case falls in the category of those allowed under the law. Rules that pertain to the election and determination of representatives are enshrined in the constitution. They are covered from section twenty-six to section forty of the Australian Constitution.

Another feature that characterizes the preliminary stages of the amendment process is strong backing. It is the duty of the individual proposing the changes to seek the support of the pertinent stakeholders. To this end, one cannot objectively propose to introduce changes to the constitution if they cannot marshal support for the same. There is a standard threshold that determines the procedure of ‘allowing or disallowing’ changes to a section of the constitution in Australia. The clamor for change must be in line with the legal process that guides the affairs of the citizens.

The Premier should be informed that changing the constitution in Australia entails several procedures, which need to be followed about the proposals made in COAG. A referendum is the most effective way of effecting changes to the instruments of governance. Preparations have to be made to hold a successful referendum. For example, the people should be provided with adequate information as far as the issues to be handled are concerned. In light of this, the public should be made aware of the COAG proposals and their impacts on the country.

Apart from referendums, proposed changes can be implemented through a court of law. In such cases, the court is expected to determine the legality of the proposals. The parties proposing the amendments are expected to adhere to the judicial requirements about amendments to the constitution. The process involves hiring an attorney and preparing the necessary paperwork. It also involves the presentation of the general credentials that supplement the arguments made before a court of law. In Australia, political adjustments can also be used to facilitate the process of amending the Constitution. The country’s political setup may be altered to support the changes. To achieve this, it is important to lobby the legislators to secure their support.

The COAG proposition must be regarded as reasonable for it to pass through the various legal processes. Bureaucrats and leaders should come up with ideas that are rational as far as the management of government affairs is concerned. The decision made by the officials who met at the COAG conference may be regarded as fallacious if it fails to meet these standards. For example, it may be viewed as erroneous if there is no legalized body acting on the discretional mandate that can make it realistically and acceptably.

At times, administrators can act in a manner that appears to usurp the powers of judicial officers. In this context, such actions are viewed from the perspective of the doctrine of Ultra Vires. For example, it is important to determine whether or not it is the responsibility of the legislators to decide how representatives will be selected. An analysis of the resolutions passed at the COAG meeting makes it apparent that the government representatives acted beyond their powers. As far as the country’s legal department is concerned, such decisions cannot be determined in a global forum. They are domestic issues that need a local approach. The aforementioned issues inform the process of implementing the changes.

Before the implementation of a legal decision, it must be established that the proposition did not result from an error in law or fact. Such errors may make the decisions to be regarded as null and void. Accountability is the most important aspect of the conduct of legislators. Leadership must promote transparency in the country.

Government’s Probable Response in Case the Proposals are rejected by the Senate

The Senate may reject the proposal by the government. The reason is that the institution is an independent arm of the regime, which is not under the control of the executive. In case of such a rejection, the government has several options. The Premier should realize that the process of amending the Australian constitution is a complex one. It requires adherence to the rules that guide such undertakings.

In case the efforts of the government are thwarted, the executive can opt to start the procedure again. A new bill can be tabled before the house to reignite the whole process. The government can use its support in the two houses to facilitate its actions. It can lobby the legislators and make them adopt a positive opinion towards the proposed move. If the government succeeds in doing this, the proposal can then be taken before the public for approval. Such a course of action is catered for under the ‘direct effect’ of the rule of law. It is the responsibility of the government to convince the people that the envisaged changes are to their benefit. To this end, civic education can be conducted to enlighten Australians on the importance of selecting representatives to the Queen based on the standards and merits put in place by the legislators.

The government has the power to call the attention of the public to the specific areas that need to be changed. Public meetings can be held in different locations within the country. The sole purpose of such a move would be to bolster support for the propositions made in the COAG meeting. In this case, the agreements reached the meeting may not matter a lot.

The rule of the majority can also be used by the government in case the Senate rejects the proposals made. In this case, the executive can secure the support of majority members to reintroduce the bill. It is important to note that there is no rule in the Australian constitution that limits the number of times a bill can be tabled before parliament. The government can take advantage of this ambiguity to bring back the proposals.

The Process that needs to be Followed Before the Proposal could Take Effect as a Formal Amendment to the Victorian Constitution

The Victorian constitution is a legal document that is important in the management of government affairs in Australia. It highlights the roles and responsibilities of the parliament in other arms of government. The current constitution came to effect as a result of the 1975 Act. It is important to note that this legal framework does not have requirements that entail procedures. The parliament is the most important arm of the government in this case. The reason is that most of the political and legislative processes in the country revolve around it.

The Victorian Premier should be informed that the process of altering the constitution involves changes to the Council and Assembly amendments. Victorian constitutions are very restrictive. They do not give the individual an opportunity to adequately take part in societal affairs. The observation is very important about the COAG proposals. Council amendments must take into consideration constitutionalism, rule of law, and principles of equity.

On their part, assembly amendments involve the contribution of legislators. Lawmakers are expected to act rationally in coming up with decisions that promote the interests of their country. The Victorian Premier must realize that amending this constitution with regards to the COAG resolutions should take this trajectory.

Conclusion

In this paper, advice was provided to the Victorian Premier about the various proposals made in the COAG meeting. It was established that it is possible to implement the changes and make them part of the Australian constitution. However, the process of achieving this is detailed and circuitous. The various options that can be used to implement these changes were highlighted.

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