Constitutional Law Commons^™

Drug Ideologies Of The United States, Macy Montgomery

Helm's School of Government Conference - 2021-2024

The United States has been increasingly creating lenient drug policies. Seventeen states and Washington, the District of Columbia, legalized marijuana, and Oregon decriminalized certain drugs, including methamphetamine, heroin, and cocaine. The medical community has proven that drugs, including marijuana, have myriad adverse health side effects. This leads to two questions: Why does the United States government continue to create lenient drug policies, and what reasons do citizens give for legalizing drugs when the medical community has proven them harmful? The paper hypothesizes that the disadvantages of drug legalization outweigh its benefits because of the numerous harms it causes, such as …

Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz

Faculty Scholarship

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

http://50shadesoffederalism.com/case-studies/monitoring-american-federalism-the-overlooked-tool-of-sounding-the-alarm-interposition/#more-1574

Removing A Log From The Nation’S Eye: A National Self-Analysis Of The Domestic Terrorism Question, Katherine R. Doan

Helm's School of Government Conference - 2021-2024

Terroristic values are easy to be ascribed to foreign enemies, but it is far more difficult to admit that domestic citizens could be extremist to the point of being labeled a terrorist. Terrorists are not born; they are made. The following research focuses on the commonalities of upbringing in known domestic terrorists within the United States of America that may reveal noticeable similarities in education, radicalization, and identity. The criminal justice system has yet to discover a perfect method of administering retribution to terrorists. While they have broken the law, their intentions and results are not the same as an …

Examining The Effects Of Student Loan Forgiveness And The Christian Perspective, Sarah Rogers

Helm's School of Government Conference - 2021-2024

On August 24, 2022, President Joe Biden announced his plan for federal student loan forgiveness. The program allows individuals who make less than $125,000 a year and families under $250,000 relieve up to $10,000 of their loan debt. Those who fall under the Pell Grant program are able to relieve up to $20,000 of their debt. The reactions to this “revolutionary” program were mixed. Typically, those who the program would directly affect were very enthusiastic about this idea while those, most notably Republicans, were less than thrilled. While the idea is good in theory, the execution of debt forgiveness will …

Asking For It: Gendered Dimensions Of Surveillance Capitalism, Jessica Rizzo

Emancipations: A Journal of Critical Social Analysis

Advertising and privacy were once seen as mutually antagonistic. In the 1950s and 1960s, Americans went to court to fight for their right to be free from the invasion of privacy presented by unwanted advertising, but a strange realignment took place in the 1970s. Radical feminists were among those who were extremely concerned about the collection and computerization of personal data—they worried about private enterprise getting a hold of that data and using it to target women—but liberal feminists went in a different direction, making friends with advertising because they saw it as strategically valuable.

Liberal feminists argued that in …

“The Past Got Broken Off”: Classifying “Indian” In The Indian Child Welfare Act, Lucia Kello

Journal of Civil Rights and Economic Development

(Excerpt)

In her 1993 novel, Pigs in Heaven, Barbara Kingsolver chronicles the story of an American Indian child, Turtle, and her young, white, adoptive mother, Taylor Greer. In what has been criticized as a controversial imagined fact pattern, Kingsolver writes that while stopped in a parking lot in the middle of the night, Taylor is approached by an American Indian woman holding a baby. Rather mysteriously, the woman informs Taylor that the baby’s mother died and the baby was being abused, upon which Taylor notes that “it looked like someone had been hurting [the woman] too.” After placing the …

Voting Rights And The Electoral Process: Resolving Representation Issues Due To Felony Disenfranchisement And Prison Gerrymandering, Andrew Calabrese, Tim Gordon, Tianyi Lu

Fordham Law Voting Rights and Democracy Forum

Felony disenfranchisement and prison gerrymandering distort democratic representation by excluding incarcerated and formerly incarcerated individuals from political participation while artificially inflating representation in prison-hosting districts. In this report, the Fordham Law School Rule of Law Clinic recommends restoring voting rights to individuals with felony convictions once they are released from prison and ending prison-based gerrymandering by counting incarcerated persons with a certain number of years left in their sentences as residents of the districts where they intend to reside after their release, in addition to other reforms to effectively carry out these policies.

The New Laboratories Of Democracy, Gerald S. Dickinson

Fordham Law Voting Rights and Democracy Forum

No abstract provided.

Privacy Lost: How The Montana Supreme Court Undercuts The Right Of Privacy, Kevin Frazier

Seattle Journal of Technology, Environmental, & Innovation Law

In 1972, Montanans ratified a new constitution that included a “right of privacy.” The plain text of the provision fails to express the intent of the Framers who not only intended to afford Montanans a right, but also to impose a responsibility on the State to continuously and thoroughly examine State practices in light of evolving means of invading residents’ privacy. This intent has gone unrealized despite the fact that the intent of the Framers is clear, readily available, and the primary source state courts ought to use when interpreting the Constitution. This article delves into the transcripts of the …

Conviction On Interpretation, Advocate Adaptability, And The Future Of Emojis And Emoticons As Evidence, Samantha Lyons

Seattle Journal of Technology, Environmental, & Innovation Law

The dawning of the digital age introduced new and unique interpretive quandaries for judges and litigators alike. These quandaries include (but are not limited to) misinterpretation of pictorial slang as used in instant messaging, new or collateral meanings invented by phrases paired with specific emoticons or emojis, and the existence of emojis alone as communicative accessories.

This Note analyzes how lawyers and judges have essential free reign to treat emojis as they see fit: a prosecutor can argue, even in good faith, that the inclusion of an emoji depicting an open flame means the sender knew the heroin he sold …

A New Right Is The Wrong Tactic: Bring Legal Actions Against States For Internet Shutdowns Instead Of Working Towards A Human Right To The Internet (Part 1), Jay Conrad

Seattle Journal of Technology, Environmental, & Innovation Law

A New Right is the Wrong Tactic: Bring Legal Actions Against States for Internet Shutdowns Instead of Working Towards a Human Right to the Internet (Part 1) is the first of a two-part series dealing with an increasingly prevalent threat to human rights: State-sanctioned Internet shutdowns. Part 1 details the current tactics and impacts of Internet shutdowns and which human rights are most likely to be violated by or during a shutdown. Part 2 will address the deficiencies of advocating for Internet access to be a recognized human right as a means of combatting shutdowns. Despite the popularity of this …

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

Montana Is Trying To Ban Tiktok. What Does The First Amendment Have To Say?, Deborah Pearlstein, John Dellamore

Online Publications

Last month, Montana became the first U.S. state to pass a bill banning TikTok from operating within its borders. If Governor Greg Gianforte signs some version of the bill, it will become the first statewide ban in the country to take direct aim at the popular social media app, which various U.S. government officials have warned poses a serious national security threat. But while Montana may be the first to act, significant gaps remain in the public debate surrounding both the nature of the threat that TikTok presents, and the constitutional questions that trying to regulate it might create.

Bisakah Alam Menjadi Subyek Hukum? Refleksi Atas Beberapa Pengalaman, Rian Adhivira Prabowo, Adi Seno, Fajar Ahmad Setiawan, Unu P. Herlambang, Edho R. Ermansyah, Gerry Pindonta Ginting

Jurnal Hukum & Pembangunan

This paper discusses three legal precedents regarding the legal personhood of nature in three countries; Ecuador, New Zealand, and India. Each country has recognized some natural areas as legal persons through different means. In Ecuador, the rights of nature, which resemble legal personhood of the nature, are recognized in the 2008 Amendment of Ecuador Constitution. Meanwhile, New Zealand has recognized the legal personhood of Whanganui River through legislated settlement treaty between the government and Maori peoples. Whereas in India, the rivers of Ganges and Yamuna have been recognized its legal personhood through the Uttarakhand High Court’s decisions. These three legal …

The Pgh Synagogue Shooting Case Should’Ve Been Heard In Pa. Court, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Implementation Of Modest And Simple Principle To Mahr As A Contribution To The Indonesian Marriage Law, Nur Mohamad Kasim

Jurnal Hukum & Pembangunan

Mahr was one of the groom's provisions to the bride and regulated by the Islamic sharia. Mahr was one of the series in a marriage procession. Islam regarded mahr as the bride's private rights, so it should not be transferred to her guardian or family. Islam defined mahr as the groom's duty, and it should not be violated. The bride would fully authorize mahr. QS. An-Nisa (4) recited, “And give the women (upon marriage) their (bridal) gifts graciously.” The gift was mahr, whose amount was determined on behalf of two parties' agreement, as it should have been voluntarily given. Nevertheless, …

Tinjauan Yuridis Prompt Release Procedure Dalam Menangani Tindak Pidana Perikanan Di Zona Ekonomi Eksklusif Indonesia, Haridus Haridus, Sudardi Sudardi, Kresno Buntoro

Jurnal Hukum & Pembangunan

Article 292 UNCLOS is a novel provision, both in the law of the sea and in general international law, as no such provision existed before the Convention was adopted. The purpose of procedure is to reconcile the interests of the detaining State in its measures against the flag State. Generally, the flag State wishes its vessel and its crew released promptly while the interest of the detaining State to secure the court appearance of the Master and the payment of penalties. Under Indonesian law, the procedure regarding prompt release is regulated in the provisions of Article 104 of Law Number …

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Ijtihad Berbasis Maqashid Syari’Ah Sebagai Pijakan Konseptual Dalam Pembaruan Hukum Keluarga Islam Indonesia, Ilham Tohari, Moh. Anas Kholish

Jurnal Hukum & Pembangunan

Many circles consider that Islamic family law in Indonesia must be renewed. But Islamic family law renewal is not an easy matter. The rejection of various parties to the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI), as an effort to renew Islamic family law, become evidence of the difficulty of the renewal. Rejection of the CLD-KHI on the other hand also shows that Islamic family law reform must be carried out with approaches and methodologies derived from the tradition of Islamic thought itself. In this context, ijtihad based on maqashid syari'ah acts as a conceptual basis for the methodology of …

Subsidi Angkutan Udara Kargo Dalam Kerangka Program Jembatan Udara Sebagai Kewajiban Pelayanan Publik Di Indonesia, Muhammad Ikram Afif

Jurnal Hukum & Pembangunan

The state is obliged to subsidize cargo air transport to Air Transport Business Entities in the form of State-Owned Enterprises (SOEs) and non-SOEs. This provision is carried out by the application of public service obligation through the Air Bridge program carried out by the government through assignments to SOEs and/or private Air Transport Business Entities through the selection of other service providers in accordance with statutory provisions. This study attempts to analyze the problems related to the implementation of subsidized cargo air transport as a public service obligation based on the legal framework of public services in Indonesia; comparison of …

Model Pengaturan Kedaruratan Dan Pilihan Kedaruratan Indonesia Dalam Menghadapi Pandemi Covid-19, Fitra Arsil, Qurrata Ayuni

Jurnal Hukum & Pembangunan

Indonesia own various of legal models uses to deal with emergencies. Two emergency arrangements in the 1945 Constitution are represented by the phrase "state of danger" in Article 12 of the 1945 Constitution and the phrase " coercive importance " in Article 22 of the 1945 Constitution. Both have different characters and implications for both the power generated and the oversight mechanism. In addition, there are also emergency legal instruments based on laws, which are represented among others by the Disaster Mitigation Act and the Health Quarantine Act. Interestingly, an emergency based on this law is not directly related to …

Covid-19, Pemenjaraan Berlebihan, Dan Potensi Katastrofe Kemanusiaan, Iqrak Sulhin

Jurnal Hukum & Pembangunan

On March 2, 2020 Indonesia recorded the Covid-19 case for the first time. Since then the trend in the number of infections has continued to increase. Likewise, the number of deaths. To anticipate the spread within the Penitentiary (Lapas), the Ministry of Law and Human Rights is releasing prisoners, through accelerating assimilation and parole. Similar policies have also been carried out by other countries in the world and are recommended by international institutions, such as the World Health Organization and the United Nations Office on Drugs and Crimes. However, the main problem behind this policy is the overcrowding condition in …

Pendanaan Pihak Ketiga (Third Party Funding) Dalam Penyelesaian Sengketa Melalui Arbitrase Dan Kemungkinan Penerapannya Di Indonesia, Carissa T.A. Temenggung, Yetty Komalasari Dewi

Jurnal Hukum & Pembangunan

The Third Party Funding (TPF) concept is an alternative method of funding usually applies in the dispute resolution process. Recently, the TPF concept has often been used in the process of resolving international arbitration disputes, both commercial and investment. This paper analyses the TPF concept and practices in several states, and its possible application in Indonesia. In particular, this paper discusses efforts made to regulate the TPF both in national law of several jurisdictions and in the international level, key issues within TPF in relation to the arbitration dispute resolution, and the TPF key provisions to be considered should Indonesia …

Instrumentation Of Ex-Officio Rights Of Religious Courts Judge Related To Fulfilling Children And Wife's Rights Due To Divorce, Adi Nur Rohman Uni, Sugeng Sugeng, Hesti Widyaningrum

Jurnal Hukum & Pembangunan

Most of divorce cases in Indonesia have a negative impact on divorced children and wives. This is due to the lack of public legal knowledge especially wives who are entangled in divorce cases so that their rights are often ignored. Judges of the Religious Court, in this regard, have a very important role in the protection of the rights of children and wives through the instrumentation of ex-officio rights which, because of his position, he has special authority in deciding the divorce case. This research is a combination of normative and empirical juridical research by connecting the case approach and …

Innocent Until Presented, Aristo Pangaribuan

Jurnal Hukum & Pembangunan

This paper analyzes a practice of presenting suspects, which is a ritual that displays a suspect before the media. Until now, although it is frequently used by the police, there has been no attempt to examine such practices in Indonesia. In the criminal procedure scholarship, there is no standard term to describe it. This article will refer to such ritual as a presentation of suspects. This ritual has also been practiced around the world with different methods and has a long history, especially in the United States. This article discusses the presentation of suspects and question whether such a ritual …

Penjatuhan Kebiri Kimia Bagi Pelaku Kejahatan Seksual Terhadap Anak Dalam Perspektif Falsafah Pemidanaan, Tunggal S, Nathalina Naibaho

Jurnal Hukum & Pembangunan

Sexual assault against children is an phenomenon that often occurs in Indonesia. The statistic shows that the number of sexual assault against children doesn't decrease significantly. Punishment is not the only way to control the number of sexual assault against children. Then, the goverment passed new regulation that regulating of chemical castration in hope of reducing the number of sexual crimes against children. However, the presence of chemical castration raises objections and differences of opinion in various circles. This research aims to determine the sentencing purpose of chemical castration and the proper sanction for imposing chemical castration in Indonesia. This …

Rgensi Meratifikasi Framework Convention On Tobacco Control (Fctc) Dalam Upaya Pengendalian Konsumsi Tembakau Di Indonesia, Fajar Kurniawan

Jurnal Hukum & Pembangunan

The current problem of tobacco consumption has become a global issue that covers almost all aspect of life, both economic, social and community welfare aspects, especially for the health aspects because of the impact of the healt losses they cause. Cigarette consumption in Indonesia continues to experience a significant increase. Indonesia is the thrid country with the highest number of smokers in the world. Global tobacco consumption control has been stated in Framework Convention on Tobacco Control (FCTC) since 2003, but until now Indonesia has not ratified that FCTC. As part of the civilization of the international community, it is …

Model Negara Kesatuan Republik Indonesia Di Era Reformasi, Mahmuzar Mahmuzar

Jurnal Hukum & Pembangunan

Article 1 Paragraph (1) of the 1945 Constitution stated that the state of Indonesia shall be a unitary state, with the form of a Republic and in article 37 paragraph (5) is affirmed that the form of the unitary state of the Republic of Indonesia may not be amended. There are two kinds of unitary state, namely unitary state with centralistic system and unitary state with decentralized system. The unitary state with decentralized system has five variants, namely; (1) unitary state with centralized decentralized system; (2) unitary state with decentralized system that decentralistic; (3), unitary state with proportional decentralized system; …

Age Before Fundamental Right? Resolving The Contradiction Presented By An Age Restriction On Running For Executive Offices In Montana's Constitution, Kevin Frazier

Barry Law Review

The Montana Constitution guarantees that “[t]he rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Adults receive similarly strong protections. According to Article II, Section 15, of the Montana Constitution, “[a] person 18 years of age or older is an adult for all purposes,” except for legislated limits on the legal age to purchase alcohol.

It follows that all Montanans have a constitutional claim to the fundamental right that "[a]ll elections shall be free and …

Christians And/As Liberals?, Steven D. Smith

Notre Dame Law Review

Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments; and the constitutional legal order that accompanies liberalism, centrally including legally enforced rights of religious freedom, is the mode of government that best permits Christians to live in accordance with their faith in a fallen and deviant world. Thus, a couple of decades ago, Robert Kraynak reported that “[a]lmost all churches and theologians now believe that the form of government most …