Constitutional Problems Research Articles

Minority Nations and Self-determination: A Proposal for the Regulation of Sovereignty Processes

Basque and Catalan demands for legitimising political accommodation, solely on the basis of the democratic will of their residents, poses a significant challenge to the Spanish constitutional system. The core of the debate in this kind of conflict revolves around the so-called “right to decide” which commonly finds its expression in the capacity to hold a referendum over sovereignty matters. The path opened by Quebec, Scotland and other minority nations are considered by some to constitute evidence of the democratic need to include this right as a new accommodation formula. Incorporating a “sovereigntist proceeding” into the legal system(s) may pave the way to a new framework aimed at solving the significant constitutional problems that exist in Spain and other countries. I suggest that such a procedure could be incorporated and regulated in the existing legal systems and provide some guidelines that could be adopted when drafting the aforementioned regulation.

Crítica al concepto de orden público económico

This article studies the origin and the national doctrines related to the Economic Public Order, and seeks to determine its contradictions, its uselessness and even its danger as an instrument for the protection of fundamental rights (in this case, economic freedom). There are some national authors who have already pointed it out, and among them, it has been proposed to use the category of Economic Constitution. This article states that when addressing any constitutional problem, the legal categories of the most modern Constitutional Theory and the Theory of Fundamental Rights should be used.

“Manufactured By The Sun”: Eve Langley’s The Pea-Pickers on The Move

Eve Langley's The Pea-Pickers is often seem as a quaint artifact of a now-vanished Australia. This article seeks to rescue the contemporary relevance of this novel of two young women who go into the rural areas of Gippsland to pick peas, showing its pioneering attention to transgender concerns, the polyphonic panoply of its style and soundscape, and its portrayal of a settler culture not anchored in a perilous identity but dynamically on the move. As so often in settler colony literature, though, blindnesses on the issue of race-particularly the portrayal of the Muslim migrant Akbarah Khan-mar the canvas, and make Langley's novel as emblematic of the constitutive problems of Australian literary history as of its artistic achievements. Just as Langley's gender variance and personal nonconformity made her an outlier in the Australia and New Zealand she lived in, so is her contribution to Australian literature an unfinished project.

Wizards of Washington The United States Supreme Court on Adoptive Couple v. Baby Girl

In 2013 the U.S. Supreme Court issued a 5-4 opinion in an Indian adoption case that sent shock waves through the Indian community particularly Indian law scholars. The case involved an unwed non-Indian mother and a Cherokee tribal member father and a newborn child that has come to be known as Baby Girl. At issue was a law passed in 1978 that provides special rights to Indian children and Indian parents. The Indian Child Welfare Act (PL95-608) came about as a result of an astonishing number of Indian Children being removed from their families by state child protection agencies without due process being provided to the family. Private adoption agencies and adoption lawyers seized on the opportunity because there was a large unmet need for adoptable children in the country. The Congress in its findings indicated that state agencies were indiscriminately removing Indian children based on standards of white middle class America which opponents argued should not be applied to Indian children. There is a plethora of literature to document the heartbreak and tragedies that resulted. Since the 2013 decision, Indian law scholars have been unrelenting in their criticism of the Courts opinion. Scholars have accused the Court of everything from incompetence to sympathy for the adopting parents to outright defying the will of Congress. Even the Court dissent made some of these accusations. Justice Thomas; a long time critique of the plenary power of Congress in Indian affairs, wrote in his separate concurring opinion that “…constitutional avoidance compels this outcome”. He provides a lengthy reasoning of why Congress lacks plenary power over Indian affairs then states “Because the Court’s plausible interpretation of the relevant sections of the ICWA avoids these constitutional problems, I concur”. Then in a second concurring opinion Justice Breyer states “we should decide no more than is necessary”. He then goes on to explain how ICWA remains intact and is still a valuable law.While some commentators have touched on these aspects of the decision, few have thoroughly analyzed it and none have reached the conclusion I have reached. It is my contention that constitutional avoidance is the heart of this case as well as the Court’s desire to embrace the purpose of the ICWA but at the same time send a message to Congress that they have overstepped their bounds. I can almost envision Chief Justice Roberts telling Justice Alito to write the details of the opinion then telling Justice Thomas to justify the basis then telling Justice Breyer to signal that ICWA is still alive and well.

The Law: Vice Presidential Inability: Historical Episodes That Highlight a Significant Constitutional Problem

As with so many aspects of the vice presidency, questions involving incapacity in the office have been largely neglected by scholars. While discussion of historical episodes involving disability has been undertaken regarding presidents, members of Congress, and federal judges, no such work has been done regarding vice presidents. Given the indispensable role the vice president plays in the continuity of the executive branch under the Twenty-Fifth Amendment and the important advisory and troubleshooting duties the modern vice president carries out, a discussion of the history of vice presidential incapacity is long overdue. Such an examination reveals that vice presidential inability is not a hypothetical but a real issue.

Обязательное (автоматическое) назначение наказания в виде смертной казни в глобализирующемся мире

The subject of this research is the death penalty as a mandatory punishment for the most serious crimes in the United States, Asia and the Caribbean and corresponding constitutional problems. The author analyses foreign courts’ judgments and foreign researchers’ points of view. The author considers the influence of the jurisprudence of the US Supreme Court on the countries with similar legal systems, the importance of legal thought in other countries for further development of law-enforcement practice in a particular region and the globalized world. The author analyzes inconsistent position of Singapore, as well as the indecisiveness of the government of Malaysia, because until recently these two countries were fervent supporters of the mandatory death penalty in the Commonwealth. The author supports the global trend towards the abolition of the mandatory death penalty and the fact that the “Asian values” are not an insurmountable barrier to achieve this goal.

Apportionment Behind the Veil of Uncertainty

Apportionment of representatives is a basic rule of everyday politics. By definition, this basic rule is a constitutional stage problem and should be decided behind the veil of uncertainty. To bring apportionment closer to quotas, we introduce f-divergence for utilitarianism and Bregman divergence for consistent optimization. Even in our less restricted condition, we find that we must use α-divergence for optimization and show that the minimization of α-divergence induces the same divisor methods that correspond to the maximization of the Kolm–Atkinson social welfare function (or the expected utility function), which is bounded by constant relative risk aversion.

Universalization of Democratic Constitutionalism and The Work of Constitutional Courts Today

Modern constitutions with its content of values and legal norms and universal ethics contained therein continuously in􀆪uence the paradigm of thought and the system of practice and constitutional democratic political regimes in the world. We may say that nowadays we are in the midst of the current development of new thoughts in the study of constitution and the practice of constitutional judiciary in the world, namely the phenomenon of “universal democratic constitutionalism.” Indonesia and all the states are experiencing the development of the same in􀆪uence, so that way of wor􀂍ing of the Constitutional Court as an institution to safeguard democracy and being the upholder of the constitution shall also catch the moral signs and messages behind that new development with a critical stance, so that each of its decisions can truly produce justice, certainty, and is solvent in nature vis-à-vis the constitutional problems occurring in the public of the respective states.

D. C. S. Oosthuizen on Husserl’s Doctrine of Constitution

The following is an English translation of the 1960 paper by the South African philosopher D. C. S. Oosthuizen entitled “Die Transendentaal-Frenomenologiese Idealisme: ‘n Aspek van die konstitusie-probleem in die filosofie van Edmund Husserl,” preceded by a few contextualizing remarks by the translator. The paper attempts to show that the phenomenological, eidetic and transcendental reductions, the problem of constitution and transcendental genesis are indispensable parts of the transcendental phenomenological method. It then demonstrates that this method and the results that are obtained by means of it cannot, strictly speaking, be said to decisively favour a metaphysical or epistemological idealism, specifically because the transcendental reductions cannot be undone.

Stevens, R.A.V., and Animal Cruelty Speech: Why Congresss New Statute Remains Constitutionally Problematic

The constitutionality of restrictions on speech depicting actual cruelty to animals is a question that continues to divide courts and commentators. In U.S. v. Stevens, the Supreme Court struck down a 1999 ban on depictions of animal cruelty. The Court invalidated the ban on its face because, as written, the statute extended beyond acts of actual animal cruelty to other forms of unlawful animal harm, such as hunting out of season. Thus, the Court did not resolve the core question presented.Congress responded by drafting a new statute, one narrowed to “crush” videos — obscene depictions of animal cruelty — in an effort to avoid constitutional problems. This new statute, however, continues to raise constitutional and public policy concerns — despite its recent upholding in the Fifth Circuit in United States v. Richards.This article is the first to analyze the constitutional and public policy issues presented by Congress’s new animal cruelty speech regulation. This article contends that the modified statute is poor public policy and remains constitutionally problematic. First, as a policy matter, the statute is ineffective because it fails to criminalize the most widespread and troubling form of animal cruelty speech: animal fighting videos. Second, the statute’s overly narrow reach — limited to obscene depictions of animal cruelty — in fact increases its constitutional problems by triggering the “virulence” doctrine first articulated in R.A.V. Since courts are unlikely to view obscene depictions of animal cruelty as virulently “prurient” obscenity, as opposed to the kind of “morbidly” violent speech entitled to the protections of strict scrutiny as established in Brown, the statute will likely be invalidated.The article concludes with an exploration of possible new legislation, which could effectively prevent animal cruelty, while also preserving free speech rights.

Legal Argumentation, Constitutional Interpretation, and Presumption of Constitutionality

Constitutional interpretation is a very complex task. The main reason underlying this complexity is the open and abstract language of constitutional texts, mainly when it concerns their bill of rights. And when it comes to judicial review of legislation, constitutional interpretation becomes even more complex. Not only the constitution but also ordinary legislation has to be interpreted so that their compatibility can be properly analyzed. Although this scheme represents common sense among constitutional scholars, the arguments used in the judicial review are the subject of fierce disputes. The aim of my paper is to analyze one of these arguments, which is frequently employed in Latin American constitutional adjudication: the presumption of constitutionality. I will argue that this kind of presumption entails many problematic issues of which constitutional scholars in Latin America are often unaware. Roughly speaking, these problematic issues can be of two types:(1) Formal argumentation problems - concerning above all the relationship between presumption and time, as well as between presumption and proof; and (2) Constitutional theory problems - concerning some consequences of the presumption of constitutionality in the separation of powers.

A nonlinear finite element plasticity formulation without matrix inversions

In the present paper a robust computational procedure is proposed for the finite element solution of elasto-plastic boundary value problems in the structural analysis of ductile materials. An implicit numerical scheme is detailed based on a return mapping algorithm. In the present computational scheme the local constitutive equations lead to the solution of a nonlinear scalar equation which ultimately reduces to a single variable algebraic (polynomial) equation in the plastic rate parameter. The proposed integration scheme allows to find the analytical solution of the algebraic equation in closed form. Consequently, in the present algorithmic procedure no iterative method is required to solve the local constitutive problem. The algorithmic scheme presented herein is also characterized by an alternative formulation of the algorithmic counterpart of the plastic consistency condition. Furthermore, in the algorithmic strategy a suitable procedure is presented for the consistent linearization of elasto-plastic boundary value problems. In fact an alternative procedure is proposed herein for the consistent derivation of the tangent operator associated to the algorithmic scheme so that in the present approach the consistent tangent operator is determined without the necessity of computing matrix inversions. The presented computational approach combined with the proposed consistent tangent operator ensures a quadratic rate of asymptotic convergence when an iterative method is pursued for the global solution procedure of elasto-plastic boundary value problems. Numerical applications and illustrative examples are finally reported to show the robustness and effectiveness of the proposed computational procedure in the finite element analysis of elasto-plastic boundary value problems.

Thoughts on techno-social engineering of humans and the freedom to be off (or free from such engineering)

AbstractThis Article examines a constitutional problem that largely goes unnoticed and unexamined by legal scholars — the problem of technosocial engineering of humans. After defining terms and explaining the nature of the problem, I explain how techno-social engineering of humans is easily ignored, as we perform constrained cost-benefit analyses of incremental steps without contemplating the path we are on. I begin with two nonfiction stories, one involving techno-social engineering of human emotions and a second involving technosocial engineering of children’s preferences. The stories highlight incremental steps down a path. Then, through plausible fictional extensions, I explore steps further down the path. The Article ends with a fact pattern familiar to every reader. It explains how the electronic contracting environment we experience regularly online is an example of techno-social engineering of humans with the (un) intended consequence of nudging humans to behave like machines — perfectly rational, predictable, and ultimately programmable.

Thoughts on Techno-Social Engineering of Humans and the Freedom to Be Off (or Free from Such Engineering)

This essay, written for the Conference: The Constitution of Information: From Gutenberg to Snowden, focuses on a constitutional problem that largely goes unnoticed and unexamined by legal scholars — the problem of techno-social engineering of humans. After defining terms and explaining the nature of the problem, I aim to show how techno-social engineering of humans is easily ignored, as we perform constrained cost-benefit analyses of incremental steps without contemplating the path we are on. To accomplish this objective, I begin with two nonfiction stories, one involving techno-social engineering of children’s preferences and a second involving techno-social engineering of human emotions. The stories highlight incremental steps down a path, but neither involves crossing the Turing line, such that the humans become indistinguishable from machines. Then, through plausible yet still fictional extensions, I explore steps further down the path. The essay ends with a fact pattern familiar to every reader. It is also nonfiction. It explains how the electronic contracting environment we experience regularly online is an example of techno-social engineering of humans with the (un)intended consequence of nudging humans to behave like machines — perfectly rational, predictable, and ultimately programmable.

The Constitutionality of Russia's 'Undesirable' NGO Law

In recent years, Russian lawmakers have expressed heightened concern about the activities of foreign non-governmental organizations (“NGOs”) operating within their country. Russian officials view these NGOs as a potential source of foreign interference in Russian internal affairs. They have responded to this perceived threat with a series of laws that increasingly hinder the work of international NGOs. The most recent anti-NGO law, passed in May 2015, takes the most aggressive steps yet. This law (the “Undesirable NGO Law”) allows Russia’s Prosecutor General to declare certain organizations “undesirable.” Such a label can be issued with minimal process and effectively constitutes a death sentence for foreign NGOs — many of which seek to protect human rights in Russia. Affected organizations include the National Endowment for Democracy, the MacArthur Foundation, and the Committee Against Torture.The Undesirable NGO Law provoked immediate criticism from both Russian civil society dissidents and international observers. Critics were quick to question the law’s constitutionality but failed to construct a thorough legal argument. This Article attempts to fill that gap with the first comprehensive constitutional analysis of the Undesirable NGO Law.The Article addresses threshold considerations related to constitutional supremacy and the authority of the Constitutional Court in Russia — both of which are relevant to resolving conflicts between the Undesirable NGO Law and the Russian Constitution. Next, the Article identifies and discusses key issues raised by the Undesirable NGO Law, including tension with Russian constitutional provisions for separation of powers, protection of civil rights, and the right to judicial appeal. The Article also assesses conflicts with Russian treaties and incorporated international law.Notwithstanding the multiplicity of constitutional questions raised by the Undesirable NGO Law, the Article concludes that the law will likely withstand legal scrutiny. Ingrained cultural and institutional challenges to comprehensive protection of civil rights in Russia operate as seemingly insurmountable barriers to realistic opposition. Nonetheless, the Article posits that simply considering the constitutional problems with the Undesirable NGO Law is a crucial way to continue the conversation and appeal to the sympathy and reason of the Russian people.

High cycle fatigue damage and life time prediction for tetragonal ferroelectrics under electromechanical loading

High cycle fatigue is one of the most crucial problems in designing reliable ferroelectric actuators and sensors. On the micro- and mesoscales, fatigue crack growth determines the life time of the smart ceramic devices, being controlled by both mechanical and electric loads. Giving rise to residual stresses, ferroelectric domain switching and domain wall motion mediate between crack tip and external loading. Thus, two dissipative processes have to be modeled on the microscale, finally leading to evolutions of damage as well as macroscopic piezoelectric, dielectric and stiffness properties. A condensed approach is used to solve the nonlinear constitutive problem of a polycrystalline representative volume and an accumulation model is applied to efficiently handle predictions of high cycle loading. Numerical examples help investigating measures to foster the life time of ferroelectric devices, always keeping an eye on the actuating performance of the system.

An efficient return mapping algorithm for elastoplasticity with exact closed form solution of the local constitutive problem

Purpose – The purpose of this paper is to present an efficient return mapping algorithm for elastoplastic constitutive problems of ductile metals with an exact closed form solution of the local constitutive problem in the small strain regime. A Newton Raphson iterative method is adopted for the solution of the boundary value problem. Design/methodology/approach – An efficient return mapping algorithm is illustrated which is based on an elastic predictor and a plastic corrector scheme resulting in an implicit and accurate numerical integration method. Nonlinear kinematic hardening rules and linear isotropic hardening rules are used to describe the components of the hardening variables. In the adopted algorithmic approach the solution of the local constitutive equations reduces to only one straightforward nonlinear scalar equation. Findings – The presented algorithmic scheme naturally leads to a particularly simple form of the nonlinear scalar equation which ultimately scales down to an algebraic (polynomial) equation with a single variable. The straightforwardness of the present approach allows to find the analytical solution of the algebraic equation in a closed form. Further, the consistent tangent operator is derived as associated with the proposed algorithmic scheme and it is shown that the proposed computational procedure ensures a quadratic rate of asymptotic convergence when used with a Newton Raphson iterative method for the global solution procedure. Originality/value – In the present approach the solution of the algebraic nonlinear equation is found in a closed form and accordingly no iterative method is required to solve the problem of the local constitutive equations. The computational procedure ensures a quadratic rate of asymptotic convergence for the global solution procedure typical of computationally efficient solution schemes. In the paper it is shown that the proposed algorithmic scheme provides an efficient and robust computational solution procedure for elastoplasticity boundary value problems. Numerical examples and computational results are reported which illustrate the effectiveness and robustness of the adopted integration algorithm for the finite element analysis of elastoplastic structures also under elaborate loading conditions.

Конституционно-правовые аспекты реформирования государственного управления

The aim of the article is to study the constitutional and legal problems of state control. Actualized the problem of generalization theoretical base content of the category "control" as one of the most effective forms of implementation of social activities of public authorities; identify the underlying types of strategies and priorities of state control in the Republic of Kazakhstan, its place and role in the system of checks and balances aimed at preserving the balance, balance of power; study of the main directions and principles of constitutionalization measures of state control as a means of ensuring, on the one hand, the effectiveness of the other, the modernization of public administration.

Enforcing American Letters of Request: The Fickle Charter Guarantee of Evidentiary Immunity

This article provides an overview of the US Fifth Amendment and Canadian Charter protections on the right against self-incrimination. It provides an in-depth analysis on the current uneven legal framework in the context of extraterritorial evidence gathering, and the constitutional problem of compelled testimony in cross-border proceedings. The author argues that a partial solution can be crafted within the courts by requiring US protective orders prior to enforcing letters of request. Such an approach should reflect the established Charter principle that compulsion must be coupled with evidentiary immunity.

The idea of justice and the constitutional problems of welfare state

Why in the process of overcoming the consequences of the crisis are increasingly talking about the need to reject the model of the welfare state? The author believes that the bases for such arguments are real constitutional problems of theory and practice of the welfare state. However, their resolution based on the proposed in this paper axiological understanding of constitutionalism allows you to save institutions that are necessary to implement the basic values of Western civilization - freedom and justice. Only on this basis it is possible to develop a public consensus on the ways to overcome the current crisis. In addition, this first implementation, and reasonable in the Russian literature axiological interpretation of constitutionalism has, in author’s opinion, to determine the lawmaking and enforcement in the Russian Federation.