U.S. Constitutional Originalism from Transcendence: The Founders’ Methodology

The Corporation as a 'Real' Constitutional Person

Social Citizenship: The Neglected Aspect of Israeli Constitutional Law

Kelo v. New London: Deciding the First Case Under the New Bill of Rights

Re-readings and Misreadings: Slaughter-House, Privileges or Immunities and Section Five Enforcement Powers

Article I contains the Ohio Bill of Rights, which is based largely on the Bill of Rights that had been in Article VIII of the 1802 Constitution. Article I, which has been amended only infrequently, includes all the rights from the Northwest Ordinance (Ordinance of 1787) and most of the rights that are in the federal Bill of Rights. This Article contains provisions addressing: equal protection and benefit, right to bear arms, religious freedom, slavery, search and seizure, cruel and unusual punishment, excessive fines, self-incrimination, double jeopardy, due process, health care, and takings. It also addresses the new judicial federalism and constitutional interpretation.

Introduction(1) The addition of the Charter of Rights and Freedoms to Canada's Constitution in 1982 triggered a debate among scholars over the role of the Supreme Court in Canadian politics. At the center of this debate was the issue of whether the Charter transform the Canadian Court from a passive tribunal occupied mainly with settling federal-provincial jurisdictional disputes into an activist defender of civil rights and liberties (Manfredi 1993; Harvie and Foster 1990; Gold and Fuerst 1992). The question was, as Verney has aptly stated, would the American system of judicial review become the model for Canada? (1987, 190). Initially, some scholars used pre-Charter practices under the 1960 statutory Bill of Rights to predict the future role of the Court under the Charter of Rights and Freedoms. MacKay (1983) argued that the Canadian Supreme Court probably not disregard its past judicial habits when making future Charter decisions, suggesting that the Court's weak civil libertarian record under the Bill of Rights dictate a future philosophy of judicial restraint. Slattery (1987) agreed, yet, unlike MacKay, he argued that the Court not overrule majoritarian legislative decisions given the qualifying sections within the text of the Charter (Section 1 and Section 33) and Canada's tradition of parliamentary supremacy. Other scholars predicted that the Canadian Court move in a decisively pro-civil rights direction after the Charter was added to the Constitution (Bender 1983; Russell 1982). Bender argued that since the general configuration of protected rights in Canada and the United States is similar in scope and range, activism on the part of the Canadian Court was inevitable. After analyzing the Constitution Act of 1982, Russell (1982) concluded that the Charter had sanctioned a major shift of power from the legislature to the judiciary and, thus, judicial activism necessarily follow. Indeed, subsequent studies have indicated that there are already signs of a more activist Canadian Court (Morton 1987; Morton et al. 1994; Morton et al. 1991; Knopff and Morton 1992; Manfredi 1993; Epp 1996). In this debate, Verney (1987) and Monahan (1987) have argued that, instead of assuming that the Canadian Court adopt the American style of judicial review, one must understand the changes taking place under the Charter in the Canadian cultural context. Thus, it is the belief of some scholars that, although the Canadian Court has moved in an activist direction in protecting individual rights in the post-Charter years, such a movement is bound to be limited in scope since the underlying cultural values of Canada and the United States are very different. The Canadian Culture Context as a Limiting Force on Individual Rights Some scholars, such as Lipset (1990) and Glendon (1991), believe Canada is a society based on a different organizing principle and value system than the United States. According to Lipset, since Canada derived its authority from the British monarchy and was initially comprised largely of Tory loyalists, it is not surprising that it formed a counterrevolutionary monarchical society which valued hierarchy in class relations and deference in politics so as to effect the collective good (2). He also argued that the spirit of such values can be found in the British North America Act, which enshrined the collective values of peace, order, and good government (8). Consequently, Canadians have historically emphasized a person's rights and obligations to the community at large rather than the rights of the individual (Lipset 1990). Subsequent authors, such as Maryanne Glendon, have argued that since Canadians are not as rights-conscious as Americans, they are more apt to balance individual rights with a person's duties and responsibilities to the community (12). As a result, they have developed a rational political discourse that encourages compromise and fosters more productive communication in confrontational situations. …

Harold B. Lee and Mormonism's Black Priesthood and Temple Ban

With the presidential election looming, the “black vote” has been deemed a crucial portion of the electorate. Historically, most black voters have aligned themselves with one of the two major parties-the Republican Party from the time of the Civil War to the New Deal; and, since the New Deal, and especially since the height of the modern civil rights movement, the Democratic Party. However, as In the Balance of Power convincingly demonstrates, African Americans have long been part of independent political movements and have used third parties to advance some of the most important changes in the United States, notably the abolition of slavery, the extension of voting rights, and the advancement of civil rights. Since the early nineteenth century, there has been an undercurrent of political independence among African Americans. They helped develop the Liberty Party in the 1840s, and have continued to work with third parties to challenge the policies of the two major parties. But despite the legal gains of the modern civil rights movement, elements of Jim Crow remain deeply embedded in our electoral process. In the Balance of Power presents a history and analysis of African American third-party movements that can help us better understand the growing diversity among black voters today.

The cornerstone of contemporary human rights law is the Universal Declaration of Human Rights , adopted by the General Assembly of the United Nations on 10 December 1948. The Universal Declaration was complemented, some eighteen years later, by three international treaties, the International Covenant on Civil and Political Rights , the International Covenant on Economic, Social and Cultural Rights , and the Optional Protocol to the International Covenant on Civil and Political Rights. A Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty was adopted by the United Nations General Assembly in December 1989, and came into force on 11 July 1991. Collectively, the five instruments comprise what is termed the ‘International Bill of Rights’. Although the Universal Declaration is not a binding treaty, it has played a seminal role not only in the United Nations system but also in the regional systems for the protection of human rights. The Universal Declaration is often cited, at least in part, as a statement or codification of customary international law, or as an authoritative interpretation of the human rights clauses in the Charter of the United Nations. According to the International Court of Justice, ‘General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris .

Author(s): Dudziak, Mary L. | Abstract: Thurgood Marshall became a living icon of civil rights when he argued Brown v. Board of Education before the Supreme Court in 1954. Six years later, he was at a crossroads. A rising generation of activists were making sit-ins and demonstrations rather than lawsuits the hallmark of the civil rights movement. What role, he wondered, could he now play? When in 1960 Kenyan independence leaders asked him to help write their constitution, Marshall threw himself into their cause. Here was a new arena in which law might serve as the tool with which to forge a just society. In Exporting American Dreams, Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. In Kenya, Marshall could become something that had not existed in his own country: a black man helping to found a nation. He became friends with Kenyan leaders Tom Mboya and Jomo Kenyatta, serving as advisor to the Kenyans, who needed to demonstrate to Great Britain and to the world that they would treat minority races (whites and Asians) fairly once Africans took power. He crafted a bill of rights, aiding constitutional negotiations that helped enable peaceful regime change, rather than violent resistance. Marshall's involvement with Kenya's foundation affirmed his faith in law, while also forcing him to understand how the struggle for justice could be compromised by the imperatives of sovereignty. Marshall's beliefs were most sorely tested later in the decade when he became a Supreme Court Justice, even as American cities erupted in flames and civil rights progress stalled. Kenya's first attempt at democracy faltered, but Marshall's African journey remained a cherished memory of a time and a place when all things seemed possible.

The political contestation of 2019 General Election of President and Vice-President had political conflicts and election violations that violates the values and principles of democracy. Constitutional Court decision No. 01 / PHPU-PRES / XVII / 2019 has ended the political and legal process of the Presidential Election, but the Structured, Systematic, and Massive (TSM) election violations which are the main legal issues still a public discourse. The research questions to be answered is First, how is the application of judicial restraints on the development of competencies adjudicating TSM election violations? Second, what are the constitutional interpretations and the legal consequences of the decision? The research method used is juridical normative with a doctrinal, regulation, and cases approach. The results of the study found that the Court previously had the tendency for judicial activism to actively adjudicating TSM election violations, but at this time there was a tendency for judicial restraint from adjudicating TSM election violations. However, the Constitutional Court actually conducts conditionally judicial restraints because it requires the Constitutional Court is able to adjudicating TSM election violations if the authorized institution does not exercise its authority properly. Furthermore, in Presidential Election Decision, the Constitutional Court actually conducted a constitutionality review without through authority judicial review the law against the 1945 Constitution, based on textual and structural interpretation methods. This decision final characteristic, so that it has legal consequences to generally binding (erga omnes) and becomes a jurisprudence for the next general election case.

Reviewed by: The Last Great Senator: Robert C. Byrd’s Encounters with Eleven U.S. Presidents by David A. Corbin Ronald L. Lewis The Last Great Senator: Robert C. Byrd’s Encounters with Eleven U.S. Presidents. By David A. Corbin. (Washington, DC: Potomac Books, 2012, Pp. ix–xiv, 364.) For a politician as prominent as the late West Virginia senator Robert C. Byrd, few know much about the man himself or his political accomplishments, mostly because the senator was a modest and private man. As an employee of the US Senate for twenty-six years, the last fifteen as an aide to Senator Byrd, [End Page 91] David Corbin is in a unique position to assess Byrd’s US Senate career, and the author’s revelations of the senator’s behind-the-scenes negotiations and the philosophical principles behind his votes are major contributions by an accomplished historian. Robert Byrd’s ascent from poverty to power is an oft-told story. The loss of his parents at an early age, his rearing by poor but proud relatives who treated him as their own son, his election to the West Virginia House of Delegates and then to the state senate, and his successful congressional elections first to the US House and then to the US Senate is embraced as an affirmation of the American myth of the self-made man. That Byrd would be elected to the Senate for nine full terms and serve fifty-two years in that august body, making him the longest serving senator in history; that he would cast more roll-call votes than any other senator in history; and that he would hold the most Senate leadership positions in history could not have been foreseen even by the senator himself, and certainly not by his detractors among the Washington elite. For years they failed to take him seriously and denounced him variously as racist hillbilly, country bumpkin, hillbilly Uriah Heep, rustic boob, and the king of pork. Academically an undereducated (he never earned a bachelor’s degree, but he did earn a law degree after ten years of night school while serving in the Senate), poor son of a West Virginia coal miner, they simply dismissed him as unqualified for high office. However, his rapid rise to powerful positions such as Senate whip, majority leader, and chair of the appropriations committee, along with his major legislative successes, forced them to eat crow. It should be emphasized that Byrd’s power base was not within the political establishment of West Virginia, but rather among the ordinary citizens across the length and breadth of his home state. Throughout his life he maintained the same values acquired while growing up in southern West Virginia and firmly rooted in his fundamentalist-protestant religion, what Corbin calls his hillbilly morality. He was convinced that God had “ordained this nation, and that this nation has responsibilities to perform under God” (43). His ultrapatriotism was neither chauvinistic nor militaristic but rather grounded in the belief that it was America’s God-appointed mission to bring liberty and peace to the world. The belief that “God had guided the hand of the Founding Fathers in the formation of American law—that is, the Constitution—the same as he presented Moses with the law for mankind” was the cornerstone of Byrd’s political philosophy (44). Therefore, the Constitution was holy writ and a law must be treated with reverence; any changes must preserve the checks and balances at the heart of the Constitution which were explained in the Federalist Papers. Byrd’s strict construction of the Constitution could cut both ways and was most obvious in the positions he took on civil rights. When he voted against [End Page 92] the 1960 civil rights bill to end the poll tax, the southern bloc applauded, and integrationists were outraged. He had been a member of the KKK very briefly in his youth, and both progressives and conservatives jumped to the wrong conclusions regarding his political motivations. To Byrd, the bill was unconstitutional because the Constitution gave states the power to establish election laws. He favored abolishing the poll tax, but it had to be done...

In his article, the author deals with the issue of the “nationalization” of civil rights in the USA, by which, in the context of the issue, he means primarily the incorporation of civil liberties contained in the federal Bill of Rights at the level of individual states of he Union. As he explains, this incorporation was rejected until the Civil War based on the U.S. Supreme Court’s decision in Barron v. Baltimore in 1833. Other possibilities for such incorporation opened up after the passage of the 14th Amendment to the Constitution in 1868. However, even here, this solution was first rejected in the so-called “slaughterhouse cases” of 1873, when the “immunities and privileges clause” of the amendment was not used. The gradual incorporation of the Bill of Rights thus occurs only through the “due process clause” of the 14th Amendment, as evidenced in particular by the decisions of the U.S. Supreme Court adopted in the 20th century. This whole process, which very well documents the issue of the federal system in the USA, is primarily completed in the 1960s.

Following the High Court's decision in the Election Advertising case, Toohey J's extra-eurial speech at a 1992 conference on constitutional law has inspired speculation as to the existence of an implied “Bill of Rights” in the Constitution. As reported in the Australian Financial Review, Toohey J's thesis avoided any direct challenge to the doctrine of Parliamentary supremacy by, “resorting to the Constitution — albeit implications arising from the Constitution as opposed to the written text — to legitimise judicial scrutiny of legislation”.

This article examines the ways in which race relations and foreign affairs intersected for the United States between 1945 and 1952. It draws on an array of archival and other primary as well as secondary sources to focus on the manner in which the Truman administration responded to pressures for racial reform both in the international sphere (decolonization) and in the domestic sphere (civil rights organizing). It finds that the segregationist backgrounds of elite American policy makers were a crucial element in official U.S. policies regarding civil rights and decolonization. It places postwar struggles over segregation and racial equality at home in the context of similar global struggles. And it argues that there was a surprising malleability to the concept of “race” and to racial designations in these years. It concludes that much, but not all, changed along the color line in the Truman years.