Law Commons^™

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

The Right To Participate, Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes

Law Quadrangle (formerly Law Quad Notes)

The following essay is excerpted and adapted from The Law of Democracy: Legal Structure of the Political Process, © The Foundation Press, Inc., Westbury, NY (1998). Publication is by permission.

Constitutions are often viewed today as constraints on majoritarian power in the service of minority interests. But constitutional ground rules also create the possibility of ongoing democratic self-government; constitutions establish relatively stable and non-negotiable precommitments that enable generally accepted structures of political competition to emerge and endure.

Despite the centrality of this role for the American Constitution , however, there is paradoxically little that the text or its history offers …

Striking The Rock: Confronting Gender Equality In South Africa, Penelope E. Andrews

Michigan Journal of Race and Law

This Article analyzes the status of women's rights in the newly democratic South Africa. It examines rights guaranteed in the Constitution and conflicts between the principle of gender equality and the recognition of indigenous law and institutions. The Article focuses on the South African transition to democracy and the influence that feminist agitation at the international level has had on South African women's attempts at political organization. After dissecting the historical position of customary law in South Africa and questioning its place in the new democratic regime. The author argues that, although South African women have benefited from the global …

Children's Rights And Family Autonomy In The South African Context: A Comment On Children's Rights Under The Final Constitution, Tshepo L. Mosikatsana

Michigan Journal of Race and Law

This Article investigates the nature and extent of the protection granted to children's rights in the South African Constitution. It concludes that the child-centered approach of the Constitution entitles children, as independent actors, to certain fundamental rights. Acknowledging both the parent-centered nature of the existing South African legal framework and the entrenched support for practices, many rooted in indigenous law and tradition, that contribute to the oppression of children, the author argues that the constitutionalization of these rights will contribute to the betterment of children in South Africa, proving to be more than mere moral exhortation. Under apartheid in South …

Cultivating A Seedling Charter: South Africa's Court Grows Its Constitution, Margaret A. Burnham

Michigan Journal of Race and Law

As South Africa emerges from the vestiges of apartheid, its Constitutional Court struggles to develop a jurisprudence that reflects the lasting ideals of a constitutional democracy. This Article examines the Court's use of international and foreign law in developing a unique form of constitutional jurisprudence. It argues that the Constitutional Court is in the process of developing an innovative form of decision-making that effectively combines domestically derived principles of justice with those developed in the international forum. This Article concludes that reliable methods of adjudication are firmly entrenched in the South African legal system and that its constitutional jurisprudence should …

Toward A South African Administrative Justice Act, Michael Asimow

Michigan Journal of Race and Law

Section 33 of South Africa's Constitution provides fundamental principles of administrative justice. It also requires Parliament to adopt an Administrative Justice Act. This Article contends that without enactment of such legislation Section 33 will be ineffective in practice and may prove to be an obstacle to achieving the economic and social objectives of the Constitution. In addition, such legislation is essential to preserving the legitimacy and the effectiveness of the Constitutional Court.

Towards Democracy In A New South Africa, Adrien Katherine Wing

Michigan Journal of International Law

Review of Constitutional Options for a Democratic South Africa: A Comparative Perspective by Ziyad Motala

Presidential Systems In Stress: Emergency Powers In Argentina And The United States, William C. Banks, Alejandro D. Carrió

Michigan Journal of International Law

This article offers three comparative insights. First, it concludes that comparative inquiries into presidential systems may be useful for those interested in constitutional government, regardless of historical, cultural, or other contextual differences among nations. Thus, nations with presidentialist constitutional systems may have common problems because of the institutional presidency. The article maintains that our presidential systems are in such states of disrepair that a fundamental reinvigoration of the legislative and judicial branches is required, so that government may better serve important constitutional values in our nations.

"We Are The People": Alien Suffrage In German And American Perspective, Gerald L. Neuman

Michigan Journal of International Law

This article will explore the constitutional debate over alien suffrage in the FRG, both for its own interest and in order to compare it with understandings of alien suffrage in the United States. As the interdependence of national economies deepens and regional "common market" arrangements multiply, more nations (including the United States) may be called upon to rethink the question of alien suffrage. The thoroughness and the explicitness with which the German legal community has debated this issue has brought to the surface arguments and assumptions that remain latent in U.S. commentary on the political status of aliens. Thus, the …

Perestroika African Style: One-Party Government And Human Rights In Tanzania, John Quigley

Michigan Journal of International Law

The one-party systems in Africa have drawn negative reactions from Western States that provide economic aid. The article assesses the one-party system in light of international human rights law and asks whether aid-giving States must consider whether one-party rule in recipient States violates international standards. In this connection, the article asks whether the rights of association and political freedom as developed in Europe can fairly be applied to Africa, given its historical experience.

Devolution Or Deconstruction Czecho-Slovak Style, Eric Stein

Michigan Journal of International Law

This essay is a part of a broader study entitled "Post-communist Constitution-making: Confessions of a Comparatist" which focuses on Czechoslovakia.

Environmental Reforms In Post-Communist Central Europe: From High Hopes To Hard Reality, Margaret Bowman, David Hunter

Michigan Journal of International Law

This article surveys the environmental law reforms taking place throughout the region and some of the important issues surrounding these reforms. Two caveats to this approach should be highlighted at the outset. First, information from the region is still somewhat incomplete. Precise translations of laws, in particular, are not always available. This article can provide only a general guide to legislative and regulatory trends in the region and should not form the basis for specific action or decisions. Second, every country in the region is different, with its own complexities. Despite our failure to resist the temptation to generalize about …

The Unification Of Germany And International Law, Frans G. Von Der Dunk, Peter H. Kooijmans

Michigan Journal of International Law

What role these rights and obligations could have played is the central theme of this article. However, in view of the enormous complexity of the problems involved, this article can do no more than provide a general overview. Sections II through VII will first sketch the outlines of the rights and obligations confronting the two German States before unification. Section VIII will compare those outlines to the actual political outcome of the unification process. The former six Sections will explore a number of different contexts in which legal rights and obligations could have been found.

Article 235 Of The Treaty Establishing The European Economic Community: Potential Conflicts Between The Dynamics Of Lawmaking In The Community And National Constitutional Principles, Franziska Tschofen

Michigan Journal of International Law

The purpose of this essay is to analyze the extent to which the present interpretation and application of article 235 of the Treaty appears to be incompatible with basic national constitutional safeguards such as the principles of democracy, the "Rule of Law," sovereignty and federalism and to discuss ways to reconcile potential incompatibilities. To this end, Part I will explore the scope of the authority of EEC organs under article 235 as delimited by the European Court of Justice and legal scholars. Part II will analyze potential conflicts between Community powers exercised pursuant to article 235 of the Treaty and …

German Unification: Constitutional And International Implications, Albrecht Randelzhofer

Michigan Journal of International Law

A discussion about the legal problems of German unification, taking into account the realms of German constitutional law, public international law, and the law of the European Communities.

Two Firsts: A Comparative Study Of The American And The Polish Constitutions, Rett R. Ludwikowski

Michigan Journal of International Law

This article is only an introductory study to further inquiry. It focuses on the first two constitutions in the world: the American Constitution of 1787 and the Polish Constitution of May 3, 1791. Furthermore, the emphasis of this essay will be disposed of in a different manner than in the above mentioned studies. The author's purpose is not to add another article to the numerous works already devoted to American Constitutional development; instead, the following remarks will emphasize Polish constitutional history, and treat the American constitutional experience as a background for comparison.

International Law-International Court Of Justice-Advisory Opinions-Admission To Membership In The United Nations, William C. Gordon

Michigan Law Review

The International Court of Justice is the principal judicial organ of the United Nations, and the Statute of the Court forms an integral part of the United Nations Charter. The Court is essentially a continuation of the Permanent Court of International Justice, which operated in connection with the League of Nations. Like its predecessor, the Court is composed of fifteen judges, nominated in a manner designed to ensure impartiality and elected by the General Assembly and the Security Council voting separately upon a list of nominees.

History Of Michigan Constitutional Provision Prohibiting A General Revision Of The Laws, W L. Jenks

Michigan Law Review

Alone among the states of the Union, Michigan has, since i85o, pr6hibited any general revision of the laws and permits only a compilation of laws in force without alteration. As practically all the neighboring states, as well as New York, from which much of the early legislatiorf of Michigan was derived, have continued to revise their statutes from time to time, it may be interesting to see why Michigan alone has thought it desirable not only to stop the practice which it followed until I85o, but to prevent effectually its legislature from ever attempting it in the future.

New Hampshire Constitutional Convention, Leonard D. White

Michigan Law Review

New Hampshire's tenth constitutional convention, upon whose labors the voters will pass judgment in November, 1920, offers a striking contrast to most constitutional conventions of recent years.' It met originally in June, 1918, sat for three days, during which it organized, appointed its committees, debated andt disposed of an important constitutional question, and then adjourned awaiting the quieter days of peace. Upon reconvening in January, igo, it concluded its work within seventeen days, at an expense of less than $5oooo, and proposed only seven amendments, five of which had been submitted to the voters by previous conventions. For a body …

Constitution Of The Empire Of Japan, George A. Malcolm

Michigan Law Review

In the history of the Japanese people, five dates stand out above all others. They are 66o B. 'C., when, according to legendary account, the Empire of Japan was founded .by the Emperor Jinmu; 1853, when Commodore Perry, with an American squadron, anchored offside what is now Yokohama and caused the opening of Japan to foreign intercourse; 1867-1868, when there was a restoration'of the monarchy, marking the beginning of the Meiji Era of Constitutionalism; and 1889, when the Constitution of Japan was promulgated.

Book Reviews, Henry M. Bates, Ernest F. Lloyd

Michigan Law Review

Constitutional Power and World Affairs, Columbia University Lectures, on the George Blumenthal Foundation, for i918, by George Sutherland. New York, Columbia University Press, 1019, pp. vii, 202. This book is one of the most interesting and thoughtful commentaries on certain phases of our Constitution which has appeared in many years. During his two terms in the United States Senate Mr. Sutherland came to be recognized as one of the ablest constitutional lawyers of the country, and his retirement in 1917 was a distinct loss to our public life. The present book is the product not only of exact, scholarly study …

The Michigan Judicature Act Of 1915, Edson R. Sunderland

Articles

IN 1848 a wave of reform in judicial procedure began to sweep over the United States. In that year the legislature of New York enacted the Code of Civil Procedure, a statute of far-reaching importance, for it became the source of and the model for similar legislation in almost two-thirds of the States in the Union.

The Law In The United States In Its Relation To Religion, Edwin C. Goddard

Other Publications

Man is a religious being. To him, everywhere and always, religion and religious institutions have been and will be of prime concern. He is also a social being. As such he has always found it necessary to live in an organized society, under some form of government. Man never has lived to himself alone. Government is not an invention, a necessary evil, to which men submit. On the contrary, from the most primitive beginnings it has been man's natural though imperfect instrument for controlling and developing the social estate so essential to his very existence. And universally this government has …

Power To Appoint To Office--Its Location And Limits, Floyd R. Mechem

Articles

At no other time in the judicial history of this country, if the evidence of the reported cases is to be relied upon, have there been so many and so bitter contests over all of the questions growing out of the title to public offices, as during the last ten or twelve years. This is undoubtedly largely accounted for by the fact that within that period a large number of the states have put in operation radically changed methods of conducting elections, based upon or practically incorporating what is popularly known as the Australian ballot system. In making these changes, …

Limits To State Control Of Private Business, Thomas M. Cooley

Articles

The present purpose is to inquire whether, in the matter of the regulation of property rights and of business, legislation has not of late been occupying doubtful, possibly unconstitutional grounds. The discussion in the main must be limited to fundamental.-principles, aided by such light as legal and constitutional history may throw upon them, since the express provisions of the constitutions can give little assistance. They always contain the general guaranty of due process of law to life, liberty, and property, but in other particulars they for the most part leave protection to principles which have come from the common law. …