State Constitutional Law in 1941–1942

1942 ◽  
Vol 36 (4) ◽  
pp. 667-688
Author(s):  
Charles Aikin
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Public Works ◽  
Executive Power ◽  
Lower Court ◽  
Supreme Courts ◽  
Majority Opinion ◽  
State Audit ◽  
And Control ◽  
State Constitutional Law

Executive Reorganization. In long and highly controversial opinions, the majorities of the Indiana and Louisiana supreme courts invalidated state administrative reorganization plans of a type whose constitutionality might conceivably have been treated as political questions. The Indiana controversy grew out of the repeal, over a Democratic governor's veto, of the Executive-Administrative Act of 1933. In place of an administration consolidated into eight departments, each directly responsible to the governor, the Republican legislative majority substituted an organization of four departments—state, audit and control, treasury, public works and commerce—each headed by a hybrid board composed of the governor and two elective administrative officers, or one administrative officer, the governor, and the lieutenant-governor. Existing tenures were terminated and powers of appointment were expressly given to the respective three-man boards.Upon adjournment of the legislature, this sweeping “reorganization” was immediately attacked on the grounds that it wrested authority from the governor and unconstitutionally delegated executive power to ministerial officers. Operation of the acts was enjoined in the lower court. On appeal, a divided supreme court declared the repealing statute unconstitutional. The heart of the majority opinion was the syllogism that under the Indiana constitution executive power, “including the administrative,” is vested, not in the executive department, but in the governor; that the appointive function is an exercise of the executive power; and hence only the governor may appoint.

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

State Constitutional Law in 1934–35

1935 ◽  
Vol 29 (4) ◽  
pp. 610-630
Author(s):  
Charles G. Haines
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Sole Purpose ◽  
The Supreme Court ◽  
The Subject ◽  
State Taxes ◽  
State Constitutional Law

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a “syncrotax,” or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading “initiative measure providing for adoption of gross receipts act” was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

State Constitutional Law in 1933–34

1934 ◽  
Vol 28 (4) ◽  
pp. 611-627
Author(s):  
Charles G. Haines
Keyword(s):  
Great Britain ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
Stress And Strain ◽  
Anglo Saxon ◽  
The Supreme Court ◽  
Bar Association ◽  
Lord Chancellor ◽  
State Constitutional Law

More than ten years ago, the Earl of Birkenhead, former Lord Chancellor of Great Britain, speaking before the American Bar Association, expressed the belief that it was a question for the future to determine whether the barriers which the framers of the constitutions placed upon the complete freedom of legislative assemblies in the United States will prove equal to the emergencies as they arise and will be as adaptable to the stress and strain of political exigencies as the more flexible and more democratic arrangements of the British constitution. “Your constitution,” he remarked, “is expressed and defined in documents which can be pronounced upon by the Supreme Court. In this sense, your judges are the masters of your executive. Your constitution is a cast-iron document. It falls to be construed by the Supreme Court with the same sense of easy and admitted mastery as any ordinary contract. This circumstance provides a breakwater of enormous value against ill-considered and revolutionary changes.” On the other hand, so far as England is concerned, the genius of the Anglo-Saxon people has, rightly or wrongly, refused to shackle in the slightest degree the constitutional competence of later generations. Any law of Great Britain can be altered by Parliament and no court may challenge the constitutional force of an act of Parliament. It is on the whole premature, thought Lord Birkenhead, to decide whether you or we have been right.

The Legacy of the Magna Carta in Recent Supreme Court Decisions on Detainees' Rights

2010 ◽  
Vol 43 (03) ◽  
pp. 483-486
Author(s):  
Robert Pallitto
Keyword(s):  
Supreme Court ◽  
Executive Power ◽  
Court Decisions ◽  
Habeas Corpus ◽  
Majority Opinion ◽  
Magna Carta ◽  
History Of ◽  
Supreme Court Decisions ◽  
Military Commissions

The legacy of the Magna Carta is apparent in the Supreme Court's recent decisions regarding detainees' rights. Asked to evaluate strong claims of executive power, the Court has had occasion to consider the origin and scope of habeas corpus, which many scholars see as a product of the Magna Carta. The majority opinion inBoumedienev.Bush(2008) traced the history of the writ of habeas corpus back to the Magna Carta and relied on that lineage to rule that Guantanamo detainees were entitled to petition for habeas corpus, even though Congress had explicitly denied them that right in the 2006 Military Commissions Act (MCA) and the 2005 Detainee Treatment Act (DTA).

Constitutional Law in 1917–1918. I: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1917

1919 ◽  
Vol 13 (1) ◽  
pp. 47-77
Author(s):  
Thomas Reed Powell
Keyword(s):  
United States ◽  
Supreme Court ◽  
Child Labor ◽  
Constitutional Law ◽  
Labor Law ◽  
The United States ◽  
Majority Opinion ◽  
The Supreme Court ◽  
Constitutional Decisions ◽  
Foreign Commerce

The federal Child Labor Law was declared unconstitutional in Hammer v. Dagenhart by a vote of five to four. It forbade the transportation in interstate or foreign commerce of the product of any mine or quarry “in which within thirty days prior to the time of the removal of such product therefrom children under the age of sixteen years have been employed or permitted to work,” with similar prohibitions covering the products of mills and factories in which children under fourteen were employed or children under sixteen were employed more than eight hours a day. The majority opinion misinterpreted the statute and assumed that it permitted goods “to be freely shipped after thirty days from the time of their removal from the factory,” whereas it permitted only the shipment of stock on hand thirty days after children had ceased to be employed. The law was so framed as to avoid the necessity of proof that children coöperated in the making of specific articles produced in a factory in which children were employed, and yet to remove any ban on shipment from an establishment which for thirty days had employed only adult labor.

State Constitutional Law in 1931–32

1932 ◽  
Vol 26 (4) ◽  
pp. 660-682
Author(s):  
Charles G. Haines
Keyword(s):  
Civil Rights ◽  
Constitutional Law ◽  
Due Process ◽  
Federal Courts ◽  
Public Utility ◽  
State Supreme Courts ◽  
Judicial Interpretation ◽  
Supreme Courts ◽  
Due Process Of Law ◽  
State Constitutional Law

Law as it is made by the courts, interstitially as suggested by Mr. Justice Holmes, and interpreted in the cases that arise during a year, covers only a portion of the law-making process of the American states. Judicial interpretation and judicial legislation are determined largely by the types of controversies which arise involving the interpretation and application of constitutions and laws, and by the personnel of the courts before whom the issues are litigated. It is difficult to discover the tendencies or trends which are in the molding during a decade or more of legal history; for such a short term as a year, generalizations or conclusions may be attempted only with great caution and with well understood reservations.The significant decisions affecting state constitutional law in 1931-32 in the state supreme courts or courts of appeal and in the inferior federal courts may conveniently be grouped under the following headings: (1) the separation and delegation of powers; (2) the protection of civil rights; (3) due process of law and equal protection of the laws; (4) due process and public utility regulations; (5) due process and the police power; (6) taxation; and (7) miscellaneous decisions.

State Constitutional Law in 1930–31

1931 ◽  
Vol 25 (3) ◽  
pp. 650-670
Author(s):  
Oliver P. Field
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Majority Rule ◽  
State Legislatures ◽  
The State ◽  
Rural Districts ◽  
The Past ◽  
The Supreme Court ◽  
Significant Case ◽  
State Constitutional Law

The most significant case in the field of state constitutional law decided during the past year is that of State ex rel. Miller v. Hinkle, decided by the supreme court of Washington in 1930. This case held that an apportionment act is a “law,” and can be popularly initiated under the initiative and referendum provisions of the constitution of the state of Washington. The court granted a petition for a writ of mandamus to compel the secretary of state to accept a petition submitting to popular referendum a proposal to redistrict the state for purposes of representation in the legislature. The legislature had failed for many years to perform its constitutional duty to reapportion the state, and this case illustrates the most conclusive argument in favor of the use of the initiative and referendum for purposes of ordinary legislation, even though the only legislation to which it be applied be that of reapportionment. Many states are faced with a serious problem in connection with over-representation of rural districts in the legislature and under-representation of urban districts. The initiative and referendum seem to offer about the only way out of the difficulty if state legislatures refuse to correct the inequality. The only alternative is that we change our ideas as to the necessity of majority rule in the selection and composition of legislative bodies, a change which the rural districts appear already to have made.

Austrian Constitutional Court: The Constitutionality of Restrictions on Nullity Appeals in Law of Criminal Procedure

ICL Journal ◽  
2017 ◽  
Vol 11 (2) ◽  
Author(s):  
Christoph Gärner
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Constitutional Law ◽  
Equal Protection ◽  
European Convention ◽  
Constitutional Court ◽  
Lower Court ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right

AbstractThe limitation of nullity appeals to cases of ‘serious concerns regarding the correctness of the facts’ on which the lower court based upon its decision is in conformity with constitutional law. It does not violate the procedural safeguards protected by Article 6 of the European Convention on Human Rights or the right to equal protection under the law protected by Article 7 of the Austrian Federal Constitutional Law. Despite the restrictive application in the jurisprudence of the Supreme Court of Austria, the limitation is proportionate und thus constitutional, as such limitations only apply to rulings by a penal of lay judges.

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