Constitutional Law Commons^™

Teori Kemaslahatan Sebagai Batasan Judicial Activism Dalam Pengujian Undang-Undang Oleh Mahkamah Konstitusi, Ali Alatas, Ficky M. Zulfickar, Patio Alfredo Nugraha Hutabarat

Jurnal Konstitusi & Demokrasi

In this paper, the concepts of judicial activism and judicial restraint are discussed as the way the Constitutional Court (MK) tests laws against the 1945 Constitution of the Republic of Indonesia (UUD 1945). Active judges can do new things to address legal vacuums or social change, but this can trigger criticism due to the potential for exceeding judicial authority. In contrast, judicial review emphasizes the self-restraint of judges to adhere to the legal text without creating new standards, providing legal stability but considered less responsive in handling complex issues. In addition, as a standard to balance the two approaches, this …

What Is Deeply Rooted In The Constitution?, Thomas P. Crocker

BYU Law Review

In a series of cases stretching over a century, the Court made a right’s roots a constitutive feature of its identity. Highlighting the analytic centrality of deep roots to the recognition of rights, Dobbs v. Jackson Women’s Health withdrew prior judicial recognition of a woman’s right to reproductive choice, arguing that such a right was not properly rooted in the American legal tradition. But what does it mean for a right to have deep roots? A surprising feature of American constitutionalism is that there is no single answer to the basic analytic question of what it means for a right …

Exit Through The White House: Congressional Constraints On Unilateral Presidential Withdrawal From Treaties, Taylor R. Dalton

Texas A&M Law Review

When does the U.S. President have the constitutional authority to withdraw from a treaty unilaterally? Where the U.S. Constitution details the making but not the exiting of treaties, the U.S. Supreme Court has largely left the issue open for the political branches to resolve. Many scholars argue that modern practice supports a conclusion that the President has the practical—if not legal—power to withdraw unilaterally from an Article II treaty or congressional-executive agreement without the consent of Congress. This argument is largely premised on the claim that Congress has acquiesced to executive practice, providing a gloss on expansive executive power to …

A Constitutional Right To Exclude Evidence, Colin Miller

Texas A&M Law Review

The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants …

We The People, But Not You: The Eighth Circuit Says Undocumented Immigrants Are Not Part Of “The People” Who May Bear Arms, Caleb Kearney

Villanova Law Review (1956 - )

No abstract provided.

Yellowstone National Park's Record Of Decision On Bison Management, Lila Bennett

Public Land & Resources Law Review

Bison herds once roamed the American Plains by the millions and were a staple in the lives of Native Americans. By the late 1800’s, bison were nearly extinct due to the westward expansion of European settlers and over hunting. Now, there is a population of merely 30,000 wild bison in North America. Although bison no longer face threats of immediate extinction, wild herds face stark realities of disease, habitat loss, and genetic degradation.

Schutter V. State Board Of Land Commissioners, Gillian P. Ellison

Public Land & Resources Law Review

In Schutter v. State Board of Land Commissioners, the Montana Supreme Court addressed the State’s fiduciary obligation in the context of water rights appurtenant to school trust lands. Central to the Court’s holding was the State’s fiduciary duty in managing lands held in trust for the benefit of the State. By upholding the State’s claim to partial ownership of a water right originating on private land, the Schutter Court underscored the tension between private property rights and the State's trust fiduciary duties.

Flathead-Lolo-Bitterroot Citizen Task Force V. Montana, Sarah J. Leopard

Public Land & Resources Law Review

Flathead-Lolo-Bitterroot Citizen Task Force v. Montana evaluates the efficacy of the proposed 2024 gray wolf floating season in preventing harm to grizzly bears, a protected species in Montana. The Court of Appeals for the Ninth Circuit affirmed the implementation of a “serious questions” test for preliminary injunctions that is specific to Endangered Species Act cases. The Court agreed with the district court’s grant of a preliminary injunction that limited the 2024 floating season temporally, but modified the injunction in two respects, thereby narrowing its application. The Court’s holding signifies the continuation of a preliminary injunction standard that values protections for …

A Conversation With Justice Brett Kavanaugh, Brett M. Kavanaugh, J. Joel Alicea

Catholic University Law Review

On Thursday, September 26th, 2024, the Center for the Constitution and the Catholic Intellectual Tradition at The Catholic University of America hosted a conversation between Justice Brett M. Kavanaugh and Professor J. Joel Alicea. This was the inaugural event of the new Center. The conversation covered topics such as constitutional interpretation, the separation of powers, religious liberty, and the Catholic intellectual tradition. This is a transcript of the conversation, and the text appears substantially as it was delivered. The video of the event may be found at this link: https://www.youtube.com/watch?v=2sKvSwzkmqo.

Religion In Public Schools: Constitutional Revolution In Action, Noah R. Feldman

University of Cincinnati Law Review

No abstract provided.

Colliding Doctrines: How Sffa V. Harvard Impacts Public University Officials' Legal Protections, Christo Fosse

University of Cincinnati Law Review

No abstract provided.

The Search For Unenumerated Fundamental Rights, Alina Sluzhyvenkova

Student Theses and Dissertations

There are certain rights that are explicitly enumerated in the Constitution, e.g., right to bear arms, right to free speech, right to a speedy and public trial. There are also rights that aren’t specifically written out but are nevertheless enjoyed by people nationwide. Rights that aren’t explicitly mentioned in the Constitution, but which are fundamental to are called the unenumerated rights. Unenumerated rights are just as important and can be derived from natural law, enumerated rights, the Ninth Amendment, precedents, judicial opinions, and substantive due process.

Substantive due process is a principle guaranteed by the Fifth and Fourteenth Amendments, which …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

Deinstitutionalizing The Mentally Retarded In Maine: The Inevitable Face-Off With Zoning, Pamela D. Albee

Maine Law Review

In July 1978, agencies and officials of the State of Maine entered into a federal consent judgment which terminated a class action lawsuit that had dragged on for three years. The consent judgment in Wuori v. Zitnay detailed a comprehensive plan designed to bring about speedy and meaningful relief to the plaintiff class: mentally retarded citizens of Maine involuntarily confined to Pineland Center, Maine's principal institution for the mentally retarded, and certain others who were conditionally released from Pineland and in community placements. The relief granted was a right to be provided the least restrictive and most normal living conditions …

Religious Beliefs, Unemployment Benefits, And Constitutional Choices: Flynn V. Maine Employment Security Commission, Mary Ann Lynch

Maine Law Review

The last decade has seen a growing number of individuals adopt fundamentalist, "born-again" Christianity. For these people, religion requires more than observance of a sabbath, weekly services, or financial commitment. Fundamentalist religion often requires its adherents to spread their religious beliefs with missionary zeal. Religion may be a constant preoccupation and as such, is brought into the work place. Thus, there is potential for conflict between the needs and demands of employers and the exercise of one's religion. While the free exercise clause of the first amendment may not always provide protection for employees against employers' requirements, it nevertheless serves …

Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer

Maine Law Review

Exclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the "increased governmental costs and the stresses upon public services which generally accompany such an incursion." In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a …

Constitutional Issues Raised By The Civil-Criminal Dichotomy Of The Maine Oui Law, Bruce W. Smith

Maine Law Review

Moving to the forefront of a national trend, the Maine Legislature undertook a thorough reform of its operating under the influence (OUI) law in 1981. The new statute was billed "the toughest in the nation," largely because of a provision for mandatory prison sentences. The statute's most radical provision is not the mandatory prison term, however, but a section which gives prosecutors the option to treat less egregious first offenses as civil infractions rather than crimes. The section generates the broad issue addressed by this Comment: may trial by jury and other constitutional protections formerly afforded OUI defendants be denied …

Posteriores Priores: An Unconstitutional Congressional Role In Treaty Termination, Donna D. Mckeage

Maine Law Review

The Supreme Court recently decided a case involving an apparent conflict between a treaty provision and a subsequent act of Congress. A Japanese subsidiary corporation, Sumitomo Shoji America, Inc., claimed a provision of the Treaty of Friendship, Commerce, and Navigation of 1953 between the United States and Japan exempted it from the prohibition against discrimination embodied in title VII of the Civil Rights Act of 1964. The Court did not reach this issue because it found Sumitomo Shoji America, Inc. to be a United States corporation and unable, therefore, to invoke the provisions of the treaty. The issue raised in …

Corner Post V. Board Of Governors Of Federal Reserve System, Alexis Karbowicz

Public Land & Resources Law Review

Corner Post v. Board of Governors of the Federal Reserve System resolved a circuit split on when claims against the federal government “accrue” under 28 U.S.C.A. § 2401(a). The Supreme Court clarified whether plaintiffs must file challenges within six years of a regulation’s enactment or may wait until they are directly affected by an agency action, even if that occurs years later. Examining the case’s factual and procedural background provides insight into the relevant regulatory context. The Court’s analysis offers a detailed interpretation of statutory language and establishes principles of claim accrual, alongside the policy considerations of regulatory finality and …

The Biopiracy Of Traditional Knowledge In United States Patent Law, Hannah Green

Public Land & Resources Law Review

The United States intellectual property (“IP”) system is deeply intertwined with our country’s history and constitution. t is foundational in favoring young American inventors. George Washington signed the first patent act in 1790 in hopes of promoting the innovation and progress of science and useful arts. Yet, our patent system was also built around the Western tradition of individualism and competition, which failed to recognize the communal nature and traditional knowledge of tribal communities. This disparity allows the biopiracy of traditional knowledge to be lawful. This comment will explore the harmful toll that United States patent law has taken on …