Textualism, Originalism, Populism and the Most Fundamental Constitutional Right: Why the Supreme Court Should Invoke Constitutional Protections to Protect Local Minorities in the Second Amendment Context

2019 ◽  
Author(s):  
Mark W. Smith
Keyword(s):  
Supreme Court ◽  
Second Amendment ◽  
The Supreme Court ◽  
Constitutional Right ◽  
Constitutional Protections

Video as Text/Archive

2019 ◽  
pp. 778-797
Author(s):  
Bennett Capers
Keyword(s):  
Supreme Court ◽  
Court Case ◽  
The Supreme Court ◽  
Surveillance Cameras ◽  
American Law ◽  
Supreme Court Case ◽  
History Of ◽  
Constitutional Protections

This chapter focuses on a few issues related to video evidence and law, especially with respect to American law. The first issue is the history of the use of video evidence in court. The second issue involves constitutional protections regarding the state’s use of surveillance cameras. The chapter then turns to the Supreme Court case Scott v. Harris to raise concerns about the use of video evidence as not just proof but “truth.” These are of course just a sampling of the issues that the topic of video evidence could raise. The hope is that this chapter will spur further inquiry on the part of the reader.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

scholarly journals State Legislatures Have the Courage to Pass Antiabortion Laws and Test the Ideology of the “New” United States Supreme Court

2020 ◽  
Vol 3 (1) ◽  
pp. 136-150
Author(s):  
Jill Oeding
Keyword(s):  
United States ◽  
Supreme Court ◽  
State Legislatures ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Undue Burden ◽  
Constitutional Right ◽  
Reported Data ◽  
The Right

Many state legislatures are racing to pass antiabortion laws that will give the current Supreme Court the opportunity to review its stance on the alleged constitutional right to have an abortion. While the number of abortions reported to be performed annually in the United States has declined over the last decade, according to the most recent government-reported data, the number of abortions performed on an annual basis is still over 600,000 per year. Abortion has been legal in the United States since 1973, when the Supreme Court recognized a constitutional right to have an abortion prior to viability (i.e. the time when a baby could possibly live outside the mother’s womb). States currently have the right to forbid abortions after viability.  However, prior to viability, states may not place an “undue burden” in the path of a woman seeking an abortion. The recent appointments of two new Supreme Court justices, Neil Gorsich and Brett Kavanaugh, give pro-life states the best chance in decades to overrule the current abortion precedent. The question is whether these two new justices will shift the ideology of the court enough to overrule the current abortion precedent.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals The Incomplete Record in New York State Rifle & Pistol Association v. City of New York

2020 ◽  
Vol 73 (1) ◽  
pp. 1-9 ◽  
Author(s):  
Eric J. Mogilnicki ◽  
Alexander Schultz
Keyword(s):  
New York ◽  
New York City ◽  
Supreme Court ◽  
York City ◽  
New York State ◽  
York State ◽  
Second Amendment ◽  
The Supreme Court

A Second Amendment case now pending at the Supreme Court, New York State Rifle & Pistol Ass’n v. City of New York, tests the extent to which New York City may limit the movement of guns along city streets. The briefing in that case is, however, incomplete. Second Amendment jurisprudence calls for an examination of historical analogues to the firearms regulation at issue. Here, the New York State Rifle and Pistol Association asserted that there are none. This Article identifies numerous historical analogues to the City’s transportation restrictions, most of which were not identified in the briefing before the Court.

scholarly journals Legal Aid by the State as a Constitutional Right of the Poor: Problems and Challenges in Indonesia

2021 ◽  
Vol 3 (2) ◽  
pp. 185-196
Author(s):  
Ari Wibowo ◽  
Michael Hagana Bangun
Keyword(s):  
Supreme Court ◽  
Legal Protection ◽  
The State ◽  
Legal Aid ◽  
The Poor ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
The Republic ◽  
The Right

The provision of legal aid is one way to realize access to law and justice for the poor people provided by the state on the mandate of the constitution. Several regulations regarding legal aid have been issued by the state through the Act and its implementing regulations as well as from the Supreme Court or the Constitutional Court through the Supreme Court Regulations and the Constitutional Court's decisions. Legal aid is the constitutional right of every citizen to guarantee legal protection and guarantee equality before the law stipulated in Law Number 16 of 2011, the State is responsible for recognizing and protecting the human rights of every individual without differing backgrounds so that everyone has the right to be treated equally before the law is contained in Article 28D of the 1945 Constitution of the Republic of Indonesia. For the poor who experience legal problems in the form of injustice, they can request legal assistance from legal aid institutions that are regulated in legislation. The purpose of providing legal aid is to guarantee and fulfill the right for Legal Aid Recipients to gain access to justice, to realize the constitutional rights of all citizens in accordance with the principle of equality in law, to ensure the certainty that the implementation of Legal Aid is carried out equally across the territory of the Republic of Indonesia. , and to create an effective, efficient and accountable court.

scholarly journals Texas, Abortion, and State Action

2021 ◽  
Vol 74 (1) ◽  
pp. 139-144
Author(s):  
Alexander Lindvall
Keyword(s):  
Supreme Court ◽  
Short Article ◽  
Enforcement Mechanism ◽  
State Action ◽  
Private Citizen ◽  
The Supreme Court ◽  
State Actors ◽  
The Law ◽  
The Government ◽  
Constitutional Protections

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday citizens, thereby allowing the law’s defenders to argue that the law does not trigger constitutional protections. This short article argues that the courts should have little trouble concluding that this law and its unusual enforcement mechanism amount to state action, meaning this law is subject to normal constitutional scrutiny. The Supreme Court’s decisions in Shelley v. Kraemer, Edmonson v. Leesville Concrete Co., and Terry v. Adams make clear that private parties can be considered state actors, especially when they are working with the express approval of the government and when the courts are required to hand down rulings that seemingly infringe on well-settled constitutional protections. These decisions, among others, show that the private-citizen plaintiffs deputized under this new Texas law must be treated as state actors who are subject to constitutional limitations.

Conclusion

2021 ◽  
pp. 185-196
Author(s):  
Elliott Young
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
The Supreme Court ◽  
The Us ◽  
Indefinite Detention ◽  
Us Constitution ◽  
Immigrant Detention ◽  
Constitutional Protections

Although the Supreme Court limited detention for non-citizens in the first decade of the twenty-first century (Zadvydas [2000] and Martinez [2005]), its most recent decisions indicate that under certain circumstances non-citizens can be held indefinitely behind bars with no possibility of even a bond hearing. In practice, non-citizens deemed excludable from the United States are like the forever prisoners of Guantanamo, exposed to massive state power with few constitutional protections. Khalid Qassim is one of the forty Guantanamo detainees held for more than eighteen years to date with no charges and no trial. Although Guantanamo prisoners are not voluntary immigrants, they share with immigrants a lack of protection by the US Constitution and a vulnerability to indefinite detention. Immigrant detention today is part of a carceral landscape in the United States that includes more than 2 million citizens behind bars.

scholarly journals The Supreme Court and the Constitutional Right to Privacy

1991 ◽  
Vol 11 ◽  
pp. 105-124
Author(s):  
Neil Snortland
Keyword(s):  
Supreme Court ◽  
Rational Basis ◽  
Reproductive Health Services ◽  
Historical Interpretation ◽  
Department Of Health ◽  
The Press ◽  
The Supreme Court ◽  
Right Of Privacy ◽  
Constitutional Right ◽  
Roe V Wade

Since its creation in 1965, the constitutional right of privacy has been difficult to understand, even contradictory. This may be explained as the result of the incremental implementation of the sweeping language of Griswold v. Connecticut, with privacy coming into conflict with other rights such as the freedom of the press. In addition, the initial criticisms of Griswold’s synoptic privacy reasoning intensified when Roe v. Wade provoked potent political opposition. These influences combined with the changing membership on the Supreme Court to produce an evaporation of privacy language from recent decisions, most notably Webster v. Reproductive Health Services and Cruzan v. Director, Missouri Department of Health. Furthermore, the Court is transforming Roe's declaration of privacy as a “fundamental right” protected by “strict scrutiny” into a “liberty interest” protected by the relaxed standard of “rational-basis scrutiny.” Finally, Rehnquist and Scalia want to give a narrow historical interpretation to any “liberty interest,” thus limiting the application of privacy to other areas of constitutional law.

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