Nowadays in the United States of America,constitutional interpretation divides into two rival theories:originalism and living constitutionalism.Despite sustained criticism that has discredited originalists within cert...Nowadays in the United States of America,constitutional interpretation divides into two rival theories:originalism and living constitutionalism.Despite sustained criticism that has discredited originalists within certain comers of the legal academy,the originalism movement is a success by numerous measures.[1]There is always a necessity to do thorough research on the originalism theory playing a dominant role in American constitutional interpretation.In order to demonstrate the importance of adhering to original meaning of the Constitution as it is always done and ought to be done,this article is going to focus on the originalist aspects and discuss what originalism is,why constitutional interpreters need to be faithful to it and how to soberly treat it and improve it after discovering the limits of the theory.展开更多
Right to freedom of religion and belief guaranteed by the constitution in the positive legal order, in practice, does not necessarily guarantee freedom. The Constitution of the Republic of Indonesia provides a guarant...Right to freedom of religion and belief guaranteed by the constitution in the positive legal order, in practice, does not necessarily guarantee freedom. The Constitution of the Republic of Indonesia provides a guarantee of religious freedom for every citizen under Article 28 E of the 1945 Constitution. The Constitutional Court, which is required to protect, maintain, and ensure religious freedom for religious minorities, is deemed to fail guarding the right of religious minorities, because in addition to providing a restrictive ruling on a judicial review of the rule of law which is contrary to the basic law, it also fails to interpret legal products under the laws as part of the constitution. The Constitutional Court dysfunction as a guardian of the constitutional rights of religious minorities occurs because of the vacuum of law （recht vacuum）, a narrow interpretation of the constitution by the constitutional judges. The urgency that needs to be addressed is to provide the Constitutional Court with a more extensive authority, which is not limited only to review legal products under laws, but also includes production of Law on Freedom of Religion and Belief for protection in the application of Article 28 E of the 1945 Constitution.展开更多
The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of speci...The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of special significance for the realization of citizenship in a digital society.It can be seen from an examination of the constitutional texts of various countries in the world that the right to the protection of personal data as a constitutional right has rich normative connotations,and the key legal link to realize this right lies in the national legislature actively fulfilling its obligation to shape and specify the protection of personal data in accordance with the entrustment of the constitutional norms.Given the constitutional principles of fundamental rights protection,i.e.,realizing the constitutional status of the right to the protection of personal data as a basic right by means of institutional guarantees,the legislature should first adhere to the constitutionality principle of data protection legislation.Second,a multi-level data protection legal system centered on the right to the protection of personal data should be established.Finally,the institutional guarantee mechanism for the protection of personal data should be continuously improved through constitutional interpretation.展开更多
Prescribed by the Constitution of the People's Republic of China, social rights provisions cannot be comprehended in isolation, nor can they be interpreted simply by referring to the concepts of positive rights or...Prescribed by the Constitution of the People's Republic of China, social rights provisions cannot be comprehended in isolation, nor can they be interpreted simply by referring to the concepts of positive rights or socio-economic rights in traditional constitutional theory. On the basis of the Constitution, social rights exhibit three interrelated dimensions from the perspective of systemic interpretation: promoting people's wellbeing, promoting democratic politics, and promoting citizens' participation in state-building. In the overall structure and normative intention of the Constitution of China, social rights are not only a kind of socioeconomic right, but also a fundamental right with a socialist nature. Specifically, social rights are individuals' right to claim their economic welfare from the state, as well as the basic civil right of realizing a comprehensive social identity. They have a social and economic nature, and to a certain degree a political nature. Correspondingly, the normative structure of social rights, and in particular their functions and orientation toward obligation, are constructed on the basis of this kind of nature. The functions of social rights are most frequently manifested as objective value order, and its specific duty to protect not only points to specific state institutions such as the constitutional review organs and judicial organs, but to the whole national governance system, thus forming a Chinese-style institutional guarantee model of social rights.展开更多
文摘Nowadays in the United States of America,constitutional interpretation divides into two rival theories:originalism and living constitutionalism.Despite sustained criticism that has discredited originalists within certain comers of the legal academy,the originalism movement is a success by numerous measures.[1]There is always a necessity to do thorough research on the originalism theory playing a dominant role in American constitutional interpretation.In order to demonstrate the importance of adhering to original meaning of the Constitution as it is always done and ought to be done,this article is going to focus on the originalist aspects and discuss what originalism is,why constitutional interpreters need to be faithful to it and how to soberly treat it and improve it after discovering the limits of the theory.
文摘Right to freedom of religion and belief guaranteed by the constitution in the positive legal order, in practice, does not necessarily guarantee freedom. The Constitution of the Republic of Indonesia provides a guarantee of religious freedom for every citizen under Article 28 E of the 1945 Constitution. The Constitutional Court, which is required to protect, maintain, and ensure religious freedom for religious minorities, is deemed to fail guarding the right of religious minorities, because in addition to providing a restrictive ruling on a judicial review of the rule of law which is contrary to the basic law, it also fails to interpret legal products under the laws as part of the constitution. The Constitutional Court dysfunction as a guardian of the constitutional rights of religious minorities occurs because of the vacuum of law （recht vacuum）, a narrow interpretation of the constitution by the constitutional judges. The urgency that needs to be addressed is to provide the Constitutional Court with a more extensive authority, which is not limited only to review legal products under laws, but also includes production of Law on Freedom of Religion and Belief for protection in the application of Article 28 E of the 1945 Constitution.
基金the provincial key academic project Research of the Grassroots Negotiation and Governance Modernization Viewing from the Angle of State Governance(2019-GDXK-0005)
文摘The right to the protection of personal data is an important human right in the era of big data and a constitutional right based on the national protection obligation and the theory of human dignity,making it of special significance for the realization of citizenship in a digital society.It can be seen from an examination of the constitutional texts of various countries in the world that the right to the protection of personal data as a constitutional right has rich normative connotations,and the key legal link to realize this right lies in the national legislature actively fulfilling its obligation to shape and specify the protection of personal data in accordance with the entrustment of the constitutional norms.Given the constitutional principles of fundamental rights protection,i.e.,realizing the constitutional status of the right to the protection of personal data as a basic right by means of institutional guarantees,the legislature should first adhere to the constitutionality principle of data protection legislation.Second,a multi-level data protection legal system centered on the right to the protection of personal data should be established.Finally,the institutional guarantee mechanism for the protection of personal data should be continuously improved through constitutional interpretation.
文摘Prescribed by the Constitution of the People's Republic of China, social rights provisions cannot be comprehended in isolation, nor can they be interpreted simply by referring to the concepts of positive rights or socio-economic rights in traditional constitutional theory. On the basis of the Constitution, social rights exhibit three interrelated dimensions from the perspective of systemic interpretation: promoting people's wellbeing, promoting democratic politics, and promoting citizens' participation in state-building. In the overall structure and normative intention of the Constitution of China, social rights are not only a kind of socioeconomic right, but also a fundamental right with a socialist nature. Specifically, social rights are individuals' right to claim their economic welfare from the state, as well as the basic civil right of realizing a comprehensive social identity. They have a social and economic nature, and to a certain degree a political nature. Correspondingly, the normative structure of social rights, and in particular their functions and orientation toward obligation, are constructed on the basis of this kind of nature. The functions of social rights are most frequently manifested as objective value order, and its specific duty to protect not only points to specific state institutions such as the constitutional review organs and judicial organs, but to the whole national governance system, thus forming a Chinese-style institutional guarantee model of social rights.
