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Articles 1 - 17 of 17
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Policing In A Democratic Constitution, Michael Wasco
Policing In A Democratic Constitution, Michael Wasco
Indiana Journal of Constitutional Design
Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.
Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and …
The Fourth Amendment At Home, Thomas P. Crocker
The Fourth Amendment At Home, Thomas P. Crocker
Indiana Law Journal
A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Protections Against Tyranny: How Article V Should Guide Constitutional Interpretation, Mary Strong
Indiana Law Journal
This Note seeks to explain what Article V means for the methods of constitutional change outside of the traditional Article V amendment process. Specifically, I argue that Article V was meant to limit the federal government from usurping power without first attaining the consent of the people. Because the Supreme Court is part of the federal government and is often considered a counter-majoritarian institution, the Court cannot extend the powers of the federal government through constitutional interpretation beyond the bounds allowed in the Constitution. Therefore, the only means to change the power structure of the federal government (the balance of …
Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons
Gerrymandering & Justiciability: The Political Question Doctrine After Rucho V. Common Cause, G. Michael Parsons
Indiana Law Journal
This Article deconstructs Rucho’s articulation and application of the political question doctrine and makes two contributions. First, the Article disentangles the political question doctrine from neighboring justiciability doctrines. The result is a set of substantive principles that should guide federal courts as they exercise a range of routine judicial functions—remedial, adjudicative, and interpretive. Rather than unrealistically attempting to draw crisp jurisdictional boundaries between exercises of “political” and “judicial” power, the political question doctrine should seek to moderate their inevitable (and frequent) clash. Standing doctrine should continue to guide courts in determining whether they have authority over a case involving a …
Authority And The Globalisation Of Inclusion And Exclusion: Author Meets Readers, Hand Lindahl, Christine Bell Prof, Friedrich Kratochwil, Hans-W. Micklitz, Carlos Thiebaut, Bert Van Roermund
Authority And The Globalisation Of Inclusion And Exclusion: Author Meets Readers, Hand Lindahl, Christine Bell Prof, Friedrich Kratochwil, Hans-W. Micklitz, Carlos Thiebaut, Bert Van Roermund
Indiana Journal of Global Legal Studies
Authority is written against the background of intense resistance to globalization processes by a range of political movements and grassroots organizations. These processes are complex and have a variety of dimensions. One of these is the emergence of global legal orders, which I define, in a rough and ready manner, as relatively autonomous legal orders that claim or aspire to claim global validity for themselves. They too-most obviously the World Trade Organization (WTO)-are the butt of resistance. Whatever its forms and aspirations, resistance to globalization is fueled by their peculiar dynamic. Indeed, emergent global legal orders spawn massive exclusion when …
Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan
Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan
Indiana Law Journal
This Comment argues that the Policy should be repealed because it undermines
firmly held First Amendment values and would be considered unconstitutional if
applied to domestic nongovernmental organizations (DNGOs). It proceeds in four
parts. Part I describes the inception of the Policy and contextualizes it among other
antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s
landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on
FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues
that the Policy undermines democratic processes abroad and fails to achieve its stated
objective: reducing …
Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams
Recidivist Sentencing And The Sixth Amendment, Benjamin E. Adams
Indiana Journal of Law and Social Equality
No abstract provided.
Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond
Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond
Indiana Journal of Constitutional Design
In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?
A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …
Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith
Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith
Indiana Journal of Constitutional Design
Bicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, …
Models Of Pre-Promulgation Review Of Legislation, Rachel Myers
Models Of Pre-Promulgation Review Of Legislation, Rachel Myers
Indiana Journal of Constitutional Design
Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …
Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli
Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli
Indiana Journal of Constitutional Design
This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …
Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan
Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan
Indiana Journal of Constitutional Design
Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …
Reviewing Intergovernmental Institutions In Federal Systems: Opportunity For Cooperation, Harrison Schafer
Reviewing Intergovernmental Institutions In Federal Systems: Opportunity For Cooperation, Harrison Schafer
Indiana Journal of Constitutional Design
This Article surveys intergovernmental institutions across federal states. Generally, these institutions offer meaningful cooperation for the different levels of government when addressing state problems. These institutions, however, often lack political authority to bind institutional members or implement authoritative state actions.
This Article proceeds in two general parts. First, this Article taxonomizes intergovernmental institutions across federal systems. Though few intergovernmental institutions are constitutionally mandated bodies, several federal states have enacted legislation to formalize these institutions while others simply utilize informal arrangements. This taxonomy will primarily discuss contemporary institutions within federal systems and focus exclusively on executive institutions. The taxonomy categorizes these …
An Alternative Constitutional Implementation Mechanism? A Case Study Of Kenya’S Commission For The Implementation Of The Constitution., Siyu Li
Indiana Journal of Constitutional Design
This Paper analyzes the independent implementation commission of Kenya and its work in facilitating the implementation process of the 2010 Kenyan Constitution, and further evaluates the effectiveness of such implementation mechanism. The case study of the Kenyan Constitution implementation shows that an independent implementation commission established by the constitution can have substantially positive impact over the implementation process. To design a successful commission, it is crucial to ensure its institutional independence, legal and enforcement power, and collaboration with civil society.
Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis
Constitutionally Unaccountable: Privatized Immigration Detention, Danielle C. Jefferis
Indiana Law Journal
For-profit, civil immigration detention is one of this nation’s fastest growing industries. About two-thirds of the more than 50,000 people in the civil custody of federal immigration authorities find themselves at one point or another in a private, corporate-run prison that contracts with the federal government. Conditions of confinement in many of these facilities are dismal. Detainees have suffered from untreated medical conditions and endured months, in some cases years, of detention in environments that are unsafe and, at times, violent. Some have died. Yet, the spaces are largely unregulated. This Article exposes and examines the absence of a constitutional …
Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd
Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd
Indiana Journal of Law and Social Equality
No abstract provided.
Ratification Of The Equal Rights Amendment: Lessons From Special Elections To The House Of Representatives In 1837, John Vlahoplus
Ratification Of The Equal Rights Amendment: Lessons From Special Elections To The House Of Representatives In 1837, John Vlahoplus
Indiana Law Journal
In 1837 the House of Representatives considered a governor’s attempt to include a limitation in a writ issued to fill a vacancy in representation pursuant to Article I, Section 2 of the Constitution. The Representatives agreed almost unanimously that the limitation was unconstitutional and should be disregarded as mere surplusage rather than invalidating the writ and the election. This Article suggests that the similar Article V gives Congress only the power to propose amendments, without any limitation, and States the power to ratify amendments or not, without any power to rescind. Consequently, the time limit that Congress purported to impose …