By Miodrag A. Jovanovic

ISBN-10: 9462742057

ISBN-13: 9789462742055

This quantity is a follow-up to the convention 'Constitutional evaluation and Democracy,' prepared in November 2013 on the college of legislation, college of Belgrade. The convention used to be convened as a part of the continuing undertaking 'Constitutionalism and Rule of legislations within the countryside development: The Case of Serbia.' The booklet sheds new mild at the advanced relation among democracy and judicial evaluate of constitutionality. It  Read more...

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Each third of members of the jury (36 incoming members) was supposed to be elected by the jury itself among the 250 outgoing legislators from the two chambers: the conseil des anciens and the conseil des cinq cents. The first composition of the jury was made by the convention in such a way that one-third was elected from the constitutional assembly, one-third from the legislative assembly, and the remaining third from the convention (Art. III). As is obvious from the eligibility conditions he put on members of the constitutional jury, Sieyès thought that constitutional review is a matter of ‘artificial reason’.

The verdict was obviously public. 28 The members of the Athenian juries were selected by sortition across the whole citizenry. In this model, citizens were given a reasonably equal chance to participate directly in the decision-making procedure that settles constitutional disputes. The random selection of jurors ensured that all citizens had an equal chance of taking part in the constitutional decision. 29 I suspect that Sieyès was influenced by the Pennsylvania Constitution of 1776, which had established an elective Council of Censors that could censure unconstitutional actions taken by the government, but I have not been able to establish this possible influence.

In a system of constrained argumentative space, the decision should be based on the arguments that the relevant constraints allow. The court must resolve the case on its ‘merits’, but the merits must be found within the relevant argumentative space. Exceeding the limits of that space violates due process. This means that a judicial system – particularly one following the adversarial variety – imposes a double form of agenda setting: it defines not only 27 the issues that can be debated and settled but also the considerations that are relevant for deciding the case.

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