Constitutional Challenges Research Articles

Nude Descending a Staircase at the National Endowment for the Arts: A Legal Anatomy of Karen Finley’s Constitutional Challenge

En 1990, le scandale des « NEA Four » a mis au centre de l’arène juridique la nudité dans les arts au cours d’un procès qui a fini par être entendu par la Cour Suprême des États-Unis. Lors de ce procès, Karen Finley et les trois autres plaignants ont remis en cause l’Amendement Williams/Coleman et demandé qu’il soit abrogé en argumentant qu’il était anticonstitutionnel prima facie. Cet amendement avait ajouté un critère moral, fondé sur la société civile, aux demandes de bourses individuelles déposées auprès de l’agence fédérale pour le financement des arts (NEA), et a, par la suite, entraîné l’annulation des prix obtenus par Finley et ses co-plaignants car leurs spectacles ont été jugés « indécents » par l’administration fédérale. Finley a perdu son recours à la Cour Suprême. Sandra Day O’Connor a rédigé l’opinion majoritaire, et a été rejointe par Ruth Bader Ginsburg pourtant souvent considérée comme une alliée potentielle, voire une représentante, de la cause féministe. Seul le juge Souter a formulé une opinion minoritaire. O’Connor a soutenu que dans la mesure où toutes les bourses sont compétitives et s’appuient sur un critère d’excellence, il n’était pas inapproprié d’avoir des critères secondaires supplémentaires qu’ils soient moraux ou autres. Souter n’a pas considéré a priori que le critère d’excellence permettait de remettre en cause l’interdiction de critères secondaires et a conclu en faveur de l’abrogation de l’amendement prima facie. Étonnamment, c’est le juge Scalia qui dans sa confirmation de l’opinion majoritaire a rendu le plus justice à la dimension artistique des œuvres d’arts. En effet, il est le seul juge de la Cour Suprême à s’être intéressé au contenu des spectacles ou à avoir fait preuve de connaissances sur les questions esthétiques, jouant ainsi le rôle improbable de l’anti-héros dans cette saga judiciaire.

The relevance of purpose in constitutional equal protection challenges to executive action

ABSTRACT Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the connection between the differentiation and the broad purpose for which power was conferred upon the authority to perform the challenged action; and (3) a generalized assessment of the action’s rationality independent of purpose. This paper will critically evaluate each of these possibilities. It will argue that a specific purpose approach (namely (1)) is to be preferred, and that such an approach should be substantiated through a structured proportionality framework.

Reunification as a process and role of constitutional law

이 글은 ‘규범으로서 헌법의 기능확보’ 및 ‘과정으로서의 통일’이라는 문제의식에 입각하되, 우선 현행 대한민국헌법에 주목하여 남북관계에 관한 헌법 명시적・묵시적 결단을 조망하면서 동시에 이러한 헌법적 결단을 헌법적 논증의 대표자라고 할 수 있는 헌법재판소가 어떻게 해석・적용・이해하고 있으며 구체적 사건에서 국가행위를 어떻게 평가 및 통제하고 있는지를 살펴본 것이다. 그리고 헌법적 정책의 대표자인 국회가 헌법적 결단의 구체화로서 마련한 남북관계에 관한 주요한 기본 규범들을 ‘평화공존과 협력체제 구축’이라는 헌법적 문제의식에 입각해서 개관 및 체계화한 다음, 전체의 논의를 요약 및 정리하면서 향후 헌법학의 과제를 조망하는 것을 목적으로 하였다. 구체적으로는 우리 헌법상 통일 내지 남북관계에 관한 대표적인 조항으로서 헌법전문, 제3조, 제4조, 제9조, 제66조, 제69조, 제72조, 제92조를 중심으로 그 내용에 대한 분석을 하였다. 그리고 남북관계 형성에 관한 헌법의 기본원칙으로서 평화주의, 민주주의, 법치주의, 공화주의의 의미에 입각하여 남북관계에 관한 헌법적 결단과 헌법재판소의 입장을 분석하였다. 아울러 남북관계에 관한 헌법을 구체화 하는 대표적인 법률로서 화해와 치유에 집중한 법률과 교류 및 협력에 집중한 법률, 통합을 달성하기 위한 법률과 기타 통일에 관한 법률로 나누어 개별 법률의 과제를 제시하였다. 현재 우리의 통일 및 남북관계에 관한 헌법과 개별법률은 분단상황이라는 상황적 인식과 장래 통일 준비에 매우 미진한 채로 남아있으며 향후 우리 헌법해석과 개별법률의 해석 및 보완방향은 현재 분단상태 즉 통일과정에서 미래지향적이고 건설적인 논의로 시좌를 이동시켜나아가야 한다는 점을 지적한다. 결론적으로 이 논문은 규범으로서 헌법의 기능확보 및 과정으로서의 통일이라는 문제의식을 공유하면서, 현행 대한민국헌법에 주목하여 남북관계에 관한 헌법 명시적・묵시적 결단을 조망하고 향후 남북통합 과정에서 예상되는 큰 틀의 문제들을 조망하였다.This paper explores some of the Constitution’s explicit and implicit rulings on the inter-Korean relations from the perspectives of “the Constitution’s functionality as a norm” and “reunification as a process” and discusses how the Constitutional Court, the supreme entity for constitutional demonstration, interprets, applies, and understands such rulings, and assesses and controls the state’s action in specific cases. It then goes on to provide an objective and systematic view of the key fundamental norms concerning inter-Korean relations, established by the National Assembly, the supreme entity for constitutional policy, to substantiate the constitutional rulings, from the constitutional perspective of “ensuring peace and establishing a system for collaboration between the two countries.” Finally, discussions made in the paper are organized and summarized before presenting tasks for those working on the Constitution. More specifically, the Preamble, and Papers 3, 4, 9, 66, 69, 72 and 92 are analyzed as they contain the most relevant provisions on reunification and inter-Korean relations. It also discusses constitutional rulings on inter-Korean relations and the Constitutional Court’s view, from the perspectives of pacifism, democracy, constitutionalism, and republicanism as the Constitution’s fundamental principles on the formation of the inter-Korean relations. In addition, to identify the constitutional implications, issues, and challenges in respect of individual acts that substantiate the constitutional rulings on inter-Korean relations, this paper classifies them into those concerning reconciliation and healing, those concerning exchange and cooperation, those on unity and those on reunification in general. Recently, the Constitution and individual acts on inter-Korean relations have failed to work properly in terms of taking into full account the territorial division between the two countries and preparing for reunification in the future. Therefore, this paper suggests that the interpretation and improvement of the Constitution and individual acts discussed therein should shift the focus onto how to facilitate future-driven and constructive discussion in the run-up to the reunification. In short, this paper explores the issues of “the Constitution’s functionality as a norm” and “reunification as a process.” Also discussed are the Constitution’s explicit and implicit rulings on inter-Korean relations, alongside an overview of challenges expected in the run-up to the reunification.

Clash of the Titans or Friendly Bedfellows? Freedom of Religion or Belief and Women’s Rights in India

This article uses a case study of India to examine the contested relationship between two sets of human rights—freedom of religion or belief on the one hand, and women’s rights to life, dignity, equality, non-discrimination, sexual autonomy, and bodily integrity on the other. Through a critical analysis of the practice of female genital mutilation within the Bohra Muslim community, which is currently the subject of a constitutional challenge in the Supreme Court of India, this article illustrates how the contestations between the two sets of rights can be more effectively understood and addressed using the international human rights framework.

Dead at Home, Alive Abroad

The remedy of restitution of conjugal rights (RCR) has its roots in canon law. It was incorporated into Muslim, Hindu and Parsi personal laws through the judgements of the Judicial Committee of the Privy Council during the British colonial period. It has been abolished in the United Kingdom in 1970 when a Law Commission report found it ineffective in saving marriages. In South Asia, however, this remedy is still available despite constitutional challenges to it before superior courts. The Federal Shariat Court refused to declare this remedy invalid in its judgements reported in 2016. This is despite the fact that far from saving marriages, this remedy is routinely abused by husbands as a countermeasure in response to suits of maintenance, custody of children, recovery of dower and dowry, and dissolution of marriage. Devoid of any Islamic basis, the RCR remedy violates the right to liberty, privacy, and equality as guaranteed under the Constitution of the Islamic Republic of Pakistan 1973 and should be declared illegal and unconstitutional.

Direct Constitutional Challenges in Kuwait

Abstract While the Kuwaiti Constitution of 1962 instituted a Constitutional Court, the latter was not established by the law until 1973. Yet individuals were forced to resort to it through indirect constitutional challenges. Nevertheless, in 2014, the legislature took a big step toward making the court more accessible to individuals by granting them the ability to raise these challenges through the direct process. This paper focuses on two procedures to challenge the constitutionality of legislation before the constitutional court of Kuwait.

Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges

AbstractIn December 2020, the EU institutions finally approved the new Rule of Law Conditionality Regulation after a controversial legislative process. The new Regulation allows the Commission and the Council to suspend EU funds in case of breaches to the rule of law that have negative effects on the EU budget and financial interests. This article analyses the new Regulation against the background of the rise of conditionality as a tool of EU governance. It argues, in contrast to some of the first analyses of the new Regulation, that the amendments adopted during the legislative process cannot simply be seen as a watered-down compromise, but were crucial to ensure the legality of the new instrument. At the same time, the EU’s growing reliance on conditionality continues to raise profound constitutional questions that still needs to be adequately addressed in the institutional and academic debate.

Wales and the United Kingdom: a territorial constitutional policy drive

ABSTRACT The Welsh Labour government has developed a distinctive brand of territorial constitutional policy in the UK context. The product of a strongly devolutionist government with a care for union, it reinforces the importance of autochthonous development in substate governance, reflects an adverse state of power relations in a famously uncodified constitution, and, framed by ongoing turbulence, provides an alternative vision of the UK territorial constitution at large. Building up Wales as a politically progressive polity, and promoting federal-type ideas of subsidiarity and shared governance in the union, are major threads. Grounded in the notion of popular sovereignties in a multipolar polity, and stressing the need for continued consent to and reform of the union, the approach represents a profound and difficult constitutional challenge. Wales as a substate polity remains a work in process, with largescale devolution of justice high on the policy agenda, while competing pressures of centralism and interest in independence inform an increasingly fluid territorial debate that sees the establishment of a new Constitutional Commission. A sustained exercise of constitutional voice, and, shown with Brexit and a muscular unionism of the Conservative government at Westminster, the struggle to be heard, characterizes the Welsh Government effort at the UK level.

Access to Justice: How Far it is a Human Right?

Access to justice is one of the constitutionally recognized fundamental and human rights. Access to justice means to reach justice easily by legally proceedings in appropriate time and place. Delivery of justice should be impartial, and also take all necessary steps to provide transparent, effective, fair and accountable service to all people irrespective of caste, colour, sex, religion, economic status etc that promote access to justice. legal aid programs and campaigns are a central component of strategies to enhance access to justice for every person. Access to justice is often used as a term for access to the formal institution of the legal system by those in search of a legal remedy either by individuals or collectively or constitutional challenges. It is essential today that the effectiveness of the rule of law should go hand in hand with access to justice. The Constitution of India has provided for Article 39A, Article 14, and Article 21 that guarantee the citizens the right to access to justice. Yet, access to justice as a human right remains problematic in international as well as national law. In this article, I explore the reasons why access to justice is not being delivered to many? The popular reasons include low level of awareness about the functioning of the legal system in India, high costs quoted by lawyers and delays in passing judgements that make it heavily inaccessible to justice.

Electrostatically Directed meta-Selective Borylation of Arenes

AbstractThe constitutional challenge of an electrostatically directed meta borylation of sterically biased and unbiased substrates is summarized in the present work. The borylation follows an electrostatic interaction between the partially positive and negative charges of the ligand and substrate, respectively. Using our developed strategy, it has been demonstrated that a wide range of challenging substrates, especially 4-substituted substrates can be borylated at the meta position with excellent selectivity. Moreover, unsubstituted substrates are also displayed excellent meta selectivity. The reaction employs bench-stable ligand, proceeds at moderate reaction temperature (40–80 °C), precluding the need to synthesize bulky and sophisticated ligand/template.

Evaluation of the Russian trade levy under the constitutionality test articulated by US case law

Protecting the constitution from violations continues to be a major challenge worldwide. The main concern is to cure constitutional noncompliance and to afford taxpayers an adequate opportunity to challenge tax’s constitutionality. This article gives an overview of the US standards for determining when a state tax is valid under the Constitution. After discussing applicability of the US standards to the Russian taxes the author evaluates the Russian trade levy under the four-prong test developed by the US Supreme Court and raises constitutional challenges to the Russian income tax scheme. The trade levy as a part of this scheme results in unconstitutional discriminatory treatment of regional residents and non-residents. Such an uncommon analysis permits to find tax discrimination and economic Balkanisation not only in Russia, but also in other Federations throughout the world. These issues are of great importance in the field of comparative tax law. In response to the problem of discrimination, the author provides solutions based on the applicable Russian law principles and global practice of avoiding multiple taxation.

Canada’s carbon energy overhang

Canada’s historical legal framework for hydrocarbon development persists, creating a ‘carbon energy overhang’ that impedes the transition to a low-carbon economy on which Canadian governments have embarked. As a result, Canada remains a petro-state, the fourth largest global oil producer with the third largest reserves. There have been greenhouse gas emission reduction initiatives, particularly by the federal government, including a national carbon tax (that survived constitutional challenge), renewable energy initiatives, energy transition legislation establishing net zero goals, and a promised cap on oil and gas industry emissions. However, two major barriers remain, notably (1) the national economic importance of the oil and gas industry with its oil sands centrepiece, located mainly in the province of Alberta; and (2) very limited room to cut electricity generation emissions, with over 80 per cent of electricity already produced by renewables and nuclear, and a lack of interprovincial transmission interties with these renewable electricity (mainly hydro)-producing provinces that export large quantities of energy to the United States.

The German Federal Constitutional Court's Decision on the Climate Change Act

The German Federal Constitutional Court's decision of March 2021 declared the Climate Change Act partially unconstitutional because it did not sufficiently protect fundamental rights. While the Court upheld the Act's objective of climate neutrality by 2050 and emission budgets until 2030, it held that the Climate Change Act violated fundamental rights for the time after 2030: The specific emissions budgets until 2030 entailed that strict measures would likely be required after 2030 in order to achieve climate neutrality. The Climate Change Act failed to sufficiently address in advance how this would affect individual freedoms. We provide an overview of the main findings of the decision as well as the ensuing amendments to the Climate Change Act, which were passed within just a few months after the decision and are subject to new constitutional challenges.

Administrative Adjudication Records, Facial Constitutional Challenges, and a Risk to Procedural Due Process from Inflexible Supplementation on Judicial Review

Administrative Adjudication Records, Facial Constitutional Challenges, and a Risk to Procedural Due Process from Inflexible Supplementation on Judicial Review

TRADE-OFFS: UNDERSTANDING FUTURE TRADE OPTIONS FOR SCOTLAND

AbstractTrade issues lie at the heart of the two biggest constitutional challenges the UK has faced in decades: Brexit and Scottish independence. Brexit has demonstrated the economic importance of borders and led to renewed calls for Scottish independence. While there are a range of possible trading arrangements an independent Scotland could pursue, all of them involve economically significant change. In this paper, we describe Scottish trade patterns and review the range of options that a newly independent Scotland might have for its trading arrangements. We then model the relative economic importance of these different potential trading arrangements.

Collins v. Yellen: The Supreme Court Addresses Constitutional Challenges to the FHFA More Than a Decade after the Financial Crisis

In a pair of decisions, <i>Seila Law LLC v. Consumer Fin. Prot. Bureau</i> and <i>Collins v. Yellen</i>, the US Supreme Court addressed constitutional challenges to two agencies created during the depth of the 2008 Financial Crisis. The earlier <i>Seila Law</i> decision addressed challenges to the structure of the Consumer Protection Financial Bureau, which was headed by a single director not fully answerable to the President. In 2020, the Supreme Court found that structure to be unconstitutional, but avoided a dismantling of the agency by simply severing the “for cause” removal clause from the statute. In <i>Collins v. Yellen</i>, it did the same for the Federal Housing Finance Agency, finding that its structure could be saved by making its director removable at will.

Why Canada Is in Court to Protect Healthcare for All: Global Implications for Universal Health Coverage.

Countries worldwide are currently endeavoring to safeguard the long-term health of their populations through implementing Universal Health Coverage (UHC), in line with the United Nation's 2015-30 Sustainable Development Goals (SDGs). Canada has some of the world's strongest legislation supporting equitable access to care for medically necessary hospital and physician services based on need, not ability to pay. A constitutional challenge to this legislation is underway in British Columbia (BC), led by a corporate plaintiff, Cambie Surgeries Corporation (CSC). This constitutional challenge threatens to undermine the high bar for UHC protection that Canada has set for the world, with potential adverse implications for equitable international development. CSC claims that BC's healthcare law-the Medicare Protection Act (MPA)-infringes patients' rights under Canada's constitution, by essentially preventing physicians who are enrolled in BC's publicly-funded Medicare plan from providing expedited care to patients for a private fee. In September 2020, after a trial that ran for 3.5 years and included testimony by more than 100 witnesses from around the world, the court dismissed the plaintiffs' claim. Having lost their case in the Supreme Court of BC, the plaintiffs' appealed in June 2021. The appellate court's ruling and reasons for judgment are expected sometime in 2021. We consider the evidence before the court from the perspective of social epidemiology and health inequalities, demonstrating that structural features of a modern society that exacerbate inequalities, including inequitable access to healthcare, can be expected to lead to worse overall societal outcomes.

Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate

Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an “emergency temporary standard”—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment.Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.

Establishing the Unconstitutionality of Menstrual Exclusion Practices in India

&#x0D; &#x0D; &#x0D; Socio-cultural norms, stigmas, and taboos associated with menstruation in India take a number of different forms, often resulting in severe restrictions on menstruators, which are described in Part II, below. In fact, a 2016 study found that only one in eight adolescent girls in India faced no restrictions at all during menstruation. The constitutionality of menstrual exclusion practices has most famously been challenged in the Sabarimala case, where the Indian Supreme Court in a 4:1 majority found that the law restricting entry of women of menstruating age into the Sabarimala temple violated women’s constitutional rights to religion and equality. In Part III, analyzing the judgment in Sabarimala, this Article will explore the potential of applying the verdict in Sabarimala to raise constitutional challenges to other forms of menstrual exclusion practices in the country.&#x0D; &#x0D; &#x0D;

The Electrical Contractors Case: Irish Supreme Court Illuminates Collective Bargaining and Delegated Legislation

AbstractAs Europe begins to emerge from the Covid‐19 pandemic, two trends are clear: one, labour market reform is urgently needed, to cope with new economic and technological realities; and two, big government is back. The recent decision of the Irish Supreme Court in Náisiúnta Leichtreach Contraitheoir Éireann v Labour Court illuminates the relationship between collective bargaining and the regulatory state. In potentially one of the most important decisions in Irish labour law in decades, the Court rejected a constitutional challenge to legislation aimed at empowering social partners to regulate economic sectors through collective bargaining. This article situates that decision within recent scholarship on the ‘labour constitution’ model of labour law, under which the social partners should participate in economic governance. It also highlights the relevance of the decision for the ‘Social Europe’ agenda and the political economy of both national constitutional law and the EU internal market.