Constitutional Claims Research Articles

Indie economics: social purpose, lay expertise and the unusual rise of modern monetary theory

ABSTRACT We argue that the IPE literature on economic expertise has been characterised by ‘methodological elitism’ that makes it ill equipped to account for the influence of heterodox and grassroots forms of expertise. To remedy this, we posit a theoretical framework that emphasises the tensions between two forms of professional legitimacy. One is internal legitimacy and it is rooted in appeals to scientific objectivity, political neutrality and high professional barriers of entry. However, internal legitimacy may clash with external legitimacy, which is a function of a clear articulation of social purpose. Taking the surprising rise of Modern Monetary Theory as a case study, the paper makes two claims. First, its ideas did not coalesce into a distinctive heterodox brand of economics through traditional mechanisms like academic peer-review and citation networks, but through intense online activity. Second, the messaging that spurred MMT consistently combined constitutive claims with explicit declarations of social purpose. The result was an open project with a broad normative appeal, which successfully enrolled a large group of passionate followers and co-creators. To date, IPE scholars have been blind to such alternative forms of knowledge production.

Climate Guardians: Navigating the Future in the 2021 German Climate Verdict and Constitutional Landscape

In the realm of intergenerational justice, green constitutionalism underscores the necessity for present generations to make choices that do not jeopardize the capacity of future generations to fulfill their needs independently. The climate verdict defending the rights of future generations by the German Federal Constitutional Court (Bundesverfassungsgericht) of March 2021 was a game changer in that regard. For the first time in Germany’s climate litigation, the fundamental rights of future generations were subject to constitutional claim and enforceable. They were no longer just a normative claim. Constitutional courts can be seen as defenders of the fundamental rights of future generations where constitutions include such normative perspectives. While the Court upheld the infringement of the fundamental rights of the adolescent plaintiffs in the future, the representation of not-yet-born generations remains unclear. This article examines how the 2021 German climate verdict and constitutional provisions address the representation and protection of the interests of future generations represented by the plaintiffs concerning climate change on the one hand and discusses the potential of protecting the fundamental rights of not-yet-born future generations. The article considers the implications for intergenerational justice and explores how these legal frameworks provided by the Constitution may contribute to the formulation of sustainable policies aimed at ensuring the long-term well-being of future generations. There is an urgent need to develop an institutional regime where the needs and rights of future generations are being considered and included in decision-making processes.

The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims <br>

The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims <br>

Legal Remedies for Teachers as Victims of Workplace Bullying in South Africa

Workplace bullying is a serious issue among teachers in South Africa, with detrimental effects on their physical and mental health, job satisfaction, and overall wellbeing. This article examines the legal remedies available to teachers who are victims of workplace bullying. These remedies include delictual liability, vicarious liability, constitutional claims, dispute resolution mechanisms, constructive dismissal, criminal law, and civil law, each of which provides a different avenue for teachers to seek legal redress. These approaches include compensation for damages, protection of their constitutional rights, and criminal charges against the person(s) accused of bullying. However, barriers such as lack of legal literacy, fear of retaliation, and cost and time constraints, may prevent teachers from accessing legal support. To address these barriers, teachers need adequate legal support and resources. This process includes legal aid services and training programmes on constitutional rights and procedures. This study utilizes a document analysis approach to examine relevant laws, policies, and case law related to workplace bullying. Future research could explore the effectiveness of different legal remedies in addressing workplace bullying among teachers. It could also explore both the facilitators of legal support and the barriers to accessing such assistance. Policy development could focus on strengthening legislative protection for teachers and victims of workplace bullying. This practice could include the development of specific legislation or regulations that address workplace bullying and provide clear guidelines for instigating legal action. This study found that the legal resources available to teachers who are victims of workplace bullying in South Africa offer different avenues for seeking legitimate redress. As indicated above, these processes include compensation for damages, protection of constitutional rights, and criminal charges against the perpetrator(s) of intimidation. However, obstacles preventing teachers from accessing legal support include a lack of legal literacy, fear of retaliation, and cost and time constraints. Overall, this article contributes to a better understanding of the legal framework surrounding workplace bullying in South Africa. It provides insights into the ways in which legal remedies can be utilized to protect teachers' rights and prevent workplace bullying.

Popular Constitutionalism in the US Empire: The Legal History of US Citizenship in Guam

This article presents a legal history of US citizenship in Guam. I argue that members of Guam’s Congress mobilizing for US citizenship in the 1930s and in the immediate aftermath of World War II offer a powerful and instructive example of popular constitutionalism, or the interactive, extrajudicial process that generates constitutional meaning. Guamanians made constitutional claims to US naval leaders and lawmakers, arguing that colonized people living in the US empire should be US citizens despite ambiguous Supreme Court precedents in the Insular Cases, congressional inaction, and naval obstruction. Guamanians interpreted the Constitution in a way that pressured and influenced naval leaders to support and US lawmakers to ultimately enact legislation that extended citizenship to Guam. This legal history demonstrates the complexity of popular constitutionalism within the context of US empire. By claiming that they should be considered US citizens after the United States formally annexed Guam after the Spanish-American War, Guamanians drew on the Constitution to demand equality, dignity, and full inclusion in the US polity for colonized people. US naval leaders and lawmakers turned this egalitarian reading of the Constitution to their own strategic advantage, however, deploying it as a valuable piece of Cold War propaganda. This article thus provides a useful example of the ideological indeterminacy of popular constitutionalism. The Constitution can be interpreted by marginalized populations to demand equality and inclusion. But the Constitution can also be interpreted by the military and congressional leaders of a global empire to maintain systems of power, oppression, and subordination.

Public Meetings, Respectable Requisitions, and Popular Politics in Great Britain and Ireland, c.1769–1850

Abstract This article examines the practice of ‘requisitioning’ public meetings in Great Britain and Ireland. These written requests to office-holders emerged in Ireland and then Great Britain, following bitter contests over the authenticity and authority of addresses and meetings claiming to represent a county or town in the decade after 1769. If the Seditious Meetings Acts privileged meetings officially convened by local elites, they also codified the practice of householders signing their own advertisements to requisition meetings under magisterial oversight. This would, especially when revolutionary threats receded and local justices’ sympathies permitted, allow local organisers some legal and constitutional claims to public assembly, even if Peterloo demonstrated the continuing threat of the Riot Act. Alongside bi-partisan opportunism encouraging public meetings, the article emphasises the creative use of constitutional and legal claims by ‘political entrepreneurs’. Comparison with Ireland demonstrates ministers’ greater recourse to new legislation and executive powers, but also the exchange of political practices with Great Britain. The prosecution of intimidating numbers, rather than seditious conduct, after 1842 diminished the role of requisitions, as did the hybridisation of ‘public meetings’. This was not so much the loss of a demotic form of community deliberation, but a proliferation and multiplication of the meetings—and voices—claiming to represent public opinion. The changing uses of a subscriptional practice can illuminate the relationship between government initiatives and local enforcement, and highlight the talents of those forging new meanings of the law, the constitution, and the political nation from restrictive procedures.

Understanding deliberate indifference to suicide in corrections facilities: A review of recent legal cases.

The US corrections system is the largest provider of mental health care in the country. Suicide is a leading cause of death in corrections facilities with rates of inmate suicide being far higher than the national average. Suicide is an event that can lead to legal action against the facility, staff, and treating health-care providers. Some claims are based on medical malpractice. In this setting, claims may also be brought based on violations of the detainee's constitutional rights. Pretrial detainees and prisoners, alike, have a constitutional right to adequate medical and psychiatric care through the Fourteenth Amendment and Eighth Amendment, respectively. But, there is limited information on constitutional claims made against correctional health-care providers for cases of inmate suicide. To help bridge this gap, the authors conducted a search of federal legal case decisions involving claims against health-care providers for deliberate indifference to a detainee's serious illness or injury in the event of attempted suicide or death by suicide over a 5 year period from 2016 to 2021. Fifteen cases were identified. Five themes emerged from the cases, which could serve as bases for claims against health-care professionals: receiving screening, mental health assessment, treatment, documentation, and attention to facility policies. The cases and their clinical significance are summarized in this article. The materials provide an overview of the problems surrounding correctional suicides and can serve as practice pointers in the corporeal setting.

Discretionary Disfunction and Shivers v. United States: Consequences of Assuming the Intent of Congress

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.
 This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for relief even though his Eighth Amendment rights were violated. This Note analyzes the error of that approach to constitutional claims and the discretionary function exception through the context of the Shivers decision and calls for an amendment to the exception clearly stating that violations of constitutional rights are not discretionary.

State Responsibility of Afghanistan Under Taliban Regime

Serious concerns on the rights of Afghanistan’s women and girls have been raised ever since the Taliban returned to power on 15th August 2021. This paper uses a normative methodology to investigate the discrepancy of legal argument in the international law of succession in terms of status of Taliban within the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) framework. This paper confirmed that the Taliban is the de facto government of Afghanistan as the Taliban have effective and integrated control over a state territory and there is no competing entity with a solid constitutional claim. Therefore, the Taliban is bound by international law to guarantee that women enjoy equal educational rights, including access to school and curriculum. However, the current framework of CEDAW, including the CEDAW committee has not be able to cope with such issues, as it should be reformed in the next future.

Rationalizing the Administrative Record for Equitable Constitutional Claims

Rationalizing the Administrative Record for Equitable Constitutional Claims

The Constitutional Claim to Individuation in Tort – A Tale of Two Centuries, Part 2

The Constitutional Claim to Individuation in Tort – A Tale of Two Centuries, Part 2

Inappropriateness of Prohibiting Appealing an Arrest Warrant


 According to Paragraph One of Article 13 of the Constitution of Georgia, human freedom shall be protected. The XVIII Chapter of the Criminal Procedure Code of Georgia specifies the grounds for criminal prosecution, detention and recognition as an accused.
 The present article deals with some problems related to a person’s detention by a court decision. It discusses the following issues: the concept and essence of detention, the gaps associated with arrest warrants, in particular the lack of legal grounds for specifying the term of execution of an arrest warrant, lack of control over the execution of an arrest warrant, the constitutional claim filed by my colleagues and me related to the prohibition of appealing an arrest warrant and resultant legal problems.
 The article also explores the court practice regarding a person’s detention by a court decision, which demonstrates and illustrates the problems related to detention practices. Examples of some foreign jurisdictions for appeals of warrant orders that have chosen the principles of equality and adversariality of the parties as their primary guiding principle are also discussed.
 The article describes the effective legal norm, reviews the judicial practice, gives conclusions and essential recommendations to improve the issue of legislative control.

Constitutional interpretation and legal consciousness: Out of the courts and onto the ground

Abstract This article examines the relevance of the study of legal consciousness, particularly that of ordinary people, to constitutional interpretation. It draws on sociolegal scholarship to explain how empirically informed, ground-up research on legal consciousness can make important contributions to the study of constitutional law away from elite actors and formal political institutions. Statutes, regulations, and court opinions that restrict the exercise of constitutional rights, and political discourse that is averse or friendly to activism and rights claims are conditions that shape the legal consciousness of ordinary people—their willingness and ability to make constitutional claims of their own in the courts, as well as their self-perceptions, social interactions, and relationships. Constitutional interpretation by ordinary people—their legal consciousness—in turn influences the development of constitutional law as it is interpreted by courts and other branches of government. By studying the words, thoughts, feelings, and (non)actions of citizens as a means of revealing how they perceive, think, and behave toward the constitution, scholars can produce a different type of study about constitutional interpretation—one that emerges from the ground up. Adopting the approach of legal consciousness research can contribute much-needed empirical insights into typically normative debates in legal scholarship about constitutional legitimacy and developments.

A Review of Inmate Litigation Challenging the Constitutionality of Solitary Confinement

ABSTRACT Since the 1960s, inmate litigation has continually evolved by challenging conditions of confinement, lack of due process, and treatment by correctional administrators. One such condition of confinement that has received judicial scrutiny is solitary confinement, but there is sparse research examining solitary confinement practices and conditions through what has been one of the predominant forms of correctional change – inmate litigation and judicial intervention. In the current study, we examined Section 1983 lawsuits across six states, that were decided from 2015 to 2020, in which inmates alleged they experienced constitutional violation(s) during their time spent in solitary confinement. The findings showed that most lawsuits were unsuccessful due to failure to establish a constitutional claim or provide sufficient evidence to overcome a defendant’s qualified immunity.

Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86

AbstractScholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Against and For Ethical Naturalism

AbstractMoral realism and ethical naturalism are both highly attractive ethical positions but historically they have often been thought to be irreconcilable. Since the late 1980s defenders of Cornell Realism have argued that the two positions can consistently be combined. They make three constitutive claims: (i) Moral properties are natural kind properties that (ii) are identical to (or supervene) on descriptive functional properties, which (iii) causally regulate our use of moral terms. We offer new arguments against the feasibility of Cornell realism and then show that there is a way to be a naturalistic realist that avoids internal inconsistency and uniquely provides for moral normativity.

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

DUALIST POPULAR CONSTITUTIONALISM A Reply to Michelman

Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair

Pakistan has long claimed itself to be Shariah compliant, as particularly enshrined in the preamble of its Constitution to be an Islamist State. However, the religious minority, which makes up about 2-4% of the total population, especially the Hindus, have always been the target of persecution, denied religious freedom and even forced to convert to Islam. It is an irony that a state making such a constitutional claim of abiding by the Quran and Sunnah has turned a deaf ear to the freedom of religion and the rights that Islam guarantees to the non-Muslims of a Muslim state. The Quran and the teachings of the Prophet are not only clear on this subject but also vigilant in upholding the rights of non-Muslims. Although religious minorities in Pakistan comprise of not only Hindus but Christians, Sikhs, Ahmadiyyas and other ethnic minorities, this paper intends to focus solely on the plight of the Hindus in Pakistan, in light of the freedom of religion guaranteed by Islam. The study shall focus on the persecution of the Hindu minorities by way of forced conversions, refusal of the right of practicing their own religion and the recent halt of the construction of a temple in Islamabad. The research further engages in the historical perspective of freedom of religion in Pakistan and its relationship with the Islamic ideology it possesses, as opposed to the true teachings of the Quran and Sunnah which is evidential of the harmonious relationship among people of all religions, cultures and ideology.

Ripening time? The Welsh Labour government between Brexit and parliamentary sovereignty

The Welsh Labour government occupies a unique position in UK territorial politics, favouring neither the status quo nor independence for Wales while advocating a new settlement for the whole state. This article provides a detailed examination of its policy, focusing on its position on the doctrine of parliamentary sovereignty. Drawing from a range of documentary sources, we analyse the Welsh government’s constitutional proposals and its decision-making in the wake of the 2016 referendum on European Union membership. We argue that Welsh policy is defined by ambiguity. While it advances an alternative constitutional vision, it refrains from rejecting Westminster’s sovereignty outright. In the aftermath of the referendum, it sought to accommodate that sovereignty with its own constitutional claims through enhanced intergovernmental collaboration. In light of the Johnson administration’s centralising reforms, the strategy appears to have failed. Caught in the fractious politics of the Union, Welsh constitutional policy now faces an uncertain future.