Unenumerated Rights
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Declaration on Violence Against Women, Girls and Adolescents and Their Sexual and Reproductive Rights
FOLLOW-UP MECHANISM TO THE OEA/Ser.L/II.7.10 CONVENTION OF BELÉM DO PARÁ (MESECVI) MESECVI/CEVI/DEC.4/14 COMITTEE OF EXPERTS (CEVI) September 19 th 2014 September 18 th and 19 th 2014 Original: Spanish Montevideo, Uruguay Declaration on Violence against Women, Girls and Adolescents and their Sexual and Reproductive Rights The Committee of Experts (CEVI) of the Follow-up Mechanism to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, “Convention of Belém do Pará” (MESECVI) , Recognizing that the American Convention on Human Rights (1969) and the Additional Protocol to the American Convention on Economic, Social and Cultural Rights “Protocol of San Salvador” (1988), establish the obligation to respect and ensure human rights and fundamental freedoms, as well as the close relationship between economic, social and cultural rights, and civil and political rights; Recognizing that gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedom on a basis of equality with men,1 and that States, according to the Convention on the Elimination of all Forms of Discrimination against Women (1979) and the Inter- American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994), condemn all forms of violence against women, including those related to sexual and reproductive health and rights; Reiterating that sexual violence against women and girls prevents the exercise of their rights as established in regional and international human rights instruments; Ratifying that the American Convention on Human Rights , the Convention on the Elimination of all Forms of Discrimination against Women ; the Protocol of San Salvador and the Convention of Belém do Pará , constitute the corpus juris that protect the human rights of women, girls, and adolescents. -
Rational Basis "Plus" Thomas B
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2017 Rational Basis "Plus" Thomas B. Nachbar Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Nachbar, Thomas B., "Rational Basis "Plus"" (2017). Constitutional Commentary. 1094. https://scholarship.law.umn.edu/concomm/1094 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NACHBAR_DRAFT 4.DOCX (DO NOT DELETE) 7/13/17 12:45 PM RATIONAL BASIS “PLUS” Thomas B. Nachbar* INTRODUCTION The Supreme Court has asserted the power to review the substance of state and federal law for its reasonableness for almost 200 years.1 Since the mid-1960s, that review has taken the form of the “familiar ‘rational basis’ test,”2 under which the Court will strike a statute if it is not rationally related to a legitimate governmental interest.3 The test is hardly perfect. It lacks, for one thing any textual basis in the Constitution.4 It has been criticized from both ends, as alternatively a judicial usurpation of legislative power5 or “tantamount to no review at all.”6 But the Court has applied it for decades,7 and while the test is not universally loved, neither is it particularly controversial, at least as rules of constitutional law go. If rational basis scrutiny itself is largely uncontroversial, the same cannot be said for so-called “rational basis with bite,” “rational basis with teeth,” or—as I shall call it—“rational basis plus” review.8 Rational basis plus is, as Justice O’Connor * Professor of Law, University of Virginia School of Law. -
The Basic Collective Human Right to Self Determination of Peoples and Nations As a Prerequisite for Peace
NYLS Journal of Human Rights Volume 8 Issue 1 VOLUME VIII Fall 1990 Part One Article 3 1990 The Basic Collective Human Right to Self Determination of Peoples and Nations as a Prerequisite for Peace Frank Przetacznik Follow this and additional works at: https://digitalcommons.nyls.edu/journal_of_human_rights Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Przetacznik, Frank (1990) "The Basic Collective Human Right to Self Determination of Peoples and Nations as a Prerequisite for Peace," NYLS Journal of Human Rights: Vol. 8 : Iss. 1 , Article 3. Available at: https://digitalcommons.nyls.edu/journal_of_human_rights/vol8/iss1/3 This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of Human Rights by an authorized editor of DigitalCommons@NYLS. THE BASIC COLLECTIVE HUMAN RIGHT TO SELF-DETERMINATION OF PEOPLES AND NATIONS AS A PREREQUISITE FOR PEACE By Dr. Frank Przetacznik* I. INTRODUCTION The right to peace is closely linked to the right to self determination of peoples and nations. The right to self-determination of peoples and nations is a basic collective human right which is recognized and guaranteed by the norms and principles of international law.' All persons are entitled to this right collectively as members of a greater community, a nation or state.2 Political history clearly demonstrates that the establishment, maintenance and preservation of peace is impossible without the recognition, guarantee and strict implementation of the right to self-determination. The Pax Romana,3 the Peace of Westphalia,4 the Congress of Vienna,' the oppressive Holy Alliance,6 the Treaty of * Administrative Law Judge, New York City. -
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THE BROWN MOMENT IN TAIWAN: MAKING SENSE OF THE LAW AND POLITICS OF THE TAIWANESE SAME-SEX MARRIAGE CASE IN A COMPARATIVE LIGHT Ming-Sung Kuo & Hui-Wen Chen+ The Taiwan Constitutional Court (TCC) recently issued a landmark decision in Interpretation No. 748 (the Same-Sex Marriage Case), declaring the definition of marriage as a gender-differentiated union of a man and a woman under the Civil Code unconstitutional and setting the stage for Taiwan to become the first in Asia to legalize same-sex marriage. This decision has been compared to Obergefell v. Hodges. However, reading Obergefell in the broad context of the gay rights movement and the role of judicial review in Taiwanese constitutional politics, we challenge this analogy. Due to the discrepancy between the social movement and the law in the fight for constitutional rights for gays and lesbians in Taiwan, the Same-Sex Marriage Case is Taiwan’s Brown v. Board of Education moment in her constitutional law and politics. To make sense of the law and politics of the Same Sex Marriage Case, we evaluate its political context and the text and style in its reasoning. We observe a discrepancy between law and politics in the pursuit of the constitutional rights of gays and lesbians in Taiwan. The rise of same-sex marriage to the top of the antidiscrimination agenda resulted from the continuous effort of gay rights activists, while the TCC watched this movement from the sidelines until the Same-Sex Marriage Case. This case thus mirrors Brown in two respects. First, the role of the TCC has been publicly questioned after its Brown-like contentious decision on the issue of same-sex marriage. -
Center for Reproductive Rights, with Financial Support and Technical Input from UNFPA
REPRODUCTIVE RIGHTS: A Tool for Monitoring State Obligations INTRODUCTION What is the Monitoring Tool?* The Monitoring Tool provides a means for human rights experts responsible for overseeing compliance with international legal standards on human rights to monitor the implementation of specific State obligations in the field of reproductive rights. The tool outlines State obligations under international and regional human rights law on a range of reproductive rights issues— freedom from discrimination, contraceptive information and services, safe pregnancy and childbirth, abortion and post-abortion care, comprehensive sexuality education, freedom from violence against women, and HIV/AIDS. The tool then identifies key questions that human rights experts and monitoring bodies can use to assess to what extent a State is in compliance with its obligations. International standards on reproductive rights are grounded in core human rights treaties and are continuously evolving. International treaty bodies and regional human rights mechanisms play an essential role in ensuring the continued consolidation and elaboration of these standards. In identifying State obligations, the tool relies on international legal standards on these issues as they currently stand, based on authoritative interpretations of major United Nations treaties through General Comments, individual complaints, and concluding observations, as well as standards developed through reports by Special Procedures and regional human rights bodies. This tool is designed to facilitate monitoring of State compliance with these obligations and to support this continued consolidation; it is not intended to be an exhaustive account of these obligations. In evaluating States’ compliance with their international human rights obligations, experts and monitoring bodies should draw from governmental and non-governmental sources to build up a complete picture: this should include both qualitative and quantitative information. -
Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitution Challenges to Uninterpreted State Statutes
The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2002 Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitution Challenges to Uninterpreted State Statutes Mark L. Rienzi The Catholic University of America, Columbus School of Law Stuart Buck Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Mark L. Rienzi & Stuart Buck, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitution Challenges to Uninterpreted State Statutes, 2002 Utah L. Rev. 381. This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes Stuart Buck* and Mark L. Rienzi** I. INTRODUCTION When a state statute is challenged in federal court as unconstitutionally overbroad or vague, the federal court is caught between two fundamental principles of constitutional law. On the one hand, federal courts have been instructed numerous times that they should invalidate a state statute only when there is no other choice. The Supreme Court has noted that it is a "cardinal principle" of statutory interpretation that a federal court must accept any plausible interpretation such that a state statute need not be invalidated. Moreover, the doctrines of abstention, certification, and severance all exist in order to show deference to a state's power to interpret its own laws and to allow as much of a state law to survive as possible. -
Substantive Equality As a Principle of Fundamental Justice
411 Constitutional Coalescence: Substantive Equality as a Principle of Fundamental Justice KERRI A. FROC* In this article, the author posits that the principles of Dans cet article, I'auteure soutient que les principes fundamental justice present tantalizing possibilities de justice fondamentale pr6sentent des possibilit6s in the quest to use constitutional law to ameliorate tentantes dans le cadre de la quote visant ase servir the real conditions of disadvantage and subordination du droit constitutionnel pour am6liorer la condition faced by women. As a way out of the stultified sociale de d6savantage et de subordination des femmes. comparative analysis in equality cases and a sec- A titre de solution pour s'6carter de I'analyse com- tion 7 analysis that has often been impervious to parke, figbe, des causes en matibre d'6galit6 Ct d'une gendered relations of domination, she proposes a analyse de I'article 7 souvent imperm6able aux rela- new use for the right to substantive equality repre- tions de domination fond6es sur lc genre, elle pro- sented in section 15(1) of the Canadian Charter of pose un nouvel usage pour Ic droit i l'galit& rclile Rights and Freedoms: as a principle of fundamental garanti par le paragraphe 15(1) de la Charte canadienne justice. Using the examples of the 1988 decision des droits et libertis : soit en tant que principe de justice in R v Morgentaler, 119881 I SCR 30 and subsequent fondamentale. A I'aide d'exemples comme la d6ci- abortion litigation and proposed legislation as a case sion de 1988 dans I'affaire R c Morgentaler, 119881 1 study, she addresses the questions of the difference it RCS 30, les litiges subs6quents concernant la ques- would make to have substantive equality recognized tion de l'avortement ct les projets de lois aff6rents as a principle of fundamental justice in granting women prises comme 6tudes de cas, elleexplore Ia diff6rence equal access to Charter rights. -
The Justice of Administration: Judicial Responses to Excute Claims of Independent Authority to Intrepret the Constitution
Florida State University Law Review Volume 33 Issue 1 Article 4 2005 The Justice of Administration: Judicial Responses to Excute Claims of Independent Authority to Intrepret the Constitution Brian Galle [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Brian Galle, The Justice of Administration: Judicial Responses to Excute Claims of Independent Authority to Intrepret the Constitution, 33 Fla. St. U. L. Rev. (2005) . https://ir.law.fsu.edu/lr/vol33/iss1/4 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW THE JUSTICE OF ADMINISTRATION: JUDICIAL RESPONSES TO EXCUTE CLAIMS OF INDEPENDENT AUTHORITY TO INTREPRET THE CONSTITUTION Brian Galle VOLUME 33 FALL 2005 NUMBER 1 Recommended citation: Brian Galle, The Justice of Administration: Judicial Responses to Excute Claims of Independent Authority to Intrepret the Constitution, 33 FLA. ST. U. L. REV. 157 (2005). THE JUSTICE OF ADMINISTRATION: JUDICIAL RESPONSES TO EXECUTIVE CLAIMS OF INDEPENDENT AUTHORITY TO INTERPRET THE CONSTITUTION BRIAN GALLE* I. INTRODUCTION.................................................................................................. 157 II. SOME BACKGROUND ON THE BACKGROUND RULES ........................................... 164 III. -
<I>Personhood Under the Fourteenth Amendment</I>
Marquette Law Review Volume 101 Article 2 Issue 2 Winter 2017 Personhood Under the Fourteenth Amendment Vincent J. Samar Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Human Rights Law Commons Repository Citation Vincent J. Samar, Personhood Under the Fourteenth Amendment, 101 Marq. L. Rev. 287 (2017). Available at: http://scholarship.law.marquette.edu/mulr/vol101/iss2/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. SAMAR - MULR VOL. 101, NO.2 (PDF REPOSITORY).DOCX (DO NOT DELETE) 2/24/18 1:04 PM MARQUETTE LAW REVIEW Volume 101 Winter 2017 Number 2 PERSONHOOD UNDER THE FOURTEENTH AMENDMENT VINCENT J. SAMAR* This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, it attempts to find a balance for those concerns with the view of personhood offered that should engage current debates about abortion and women’s rights. -
The Seventh Circuit's Application of the Substantive Due Process Right Of
SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 FAMILIA INTERRUPTUS: THE SEVENTH CIRCUIT’S APPLICATION OF THE SUBSTANTIVE DUE PROCESS RIGHT OF FAMILIAL RELATIONS ∗ SCOTT J. RICHARD Cite as: Scott J. Richard, Familia Interruptus: The Seventh Circuit’s Application of the Substantive Due Process Right of Familial Relations, 3 SEVENTH CIRCUIT REV. 140 (2007), at http://www.kentlaw.edu/7cr/v3-1/richard.pdf. INTRODUCTION One of the oldest substantive due process rights derived from the Fourteenth Amendment and recognized by the Supreme Court is the right of individuals to be free from government intrusion into the control and management of their families.1 Despite its rhetoric that familial rights are a fundamental liberty interest protected by the Fourteenth Amendment, the Supreme Court’s recognition of this right has been far from clear. Until recently,2 the articulation of this right has been enmeshed in the analysis of other constitutional rights, and even the recent Supreme Court jurisprudence is ambivalent towards this liberty interest, making it difficult to decipher the scope of this right and the appropriate standard to determine when it should be protected. ∗ J.D. candidate, May 2008, Chicago-Kent College of Law, Illinois Institute of Technology; A.M., 2001, University of Chicago; B.A., 1999, Hamilton College. I would like to acknowledge Nikolai G. Guerra and Nicole L. Little for their careful edits of this Note. 1 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 2 Troxel v. Granville, 530 U.S. 57 (2000). 140 SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 The Seventh Circuit’s most recent case involving a claim of familial rights, United States v. -
The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law Calvin R
University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1990 The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law Calvin R. Massey UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Recommended Citation Calvin R. Massey, The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law, 1990 Wisconsin Law Review 1229 (1990). Available at: http://repository.uchastings.edu/faculty_scholarship/1130 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. THE ANTI-FEDERALIST NINTH AMENDMENT AND ITS IMPLICATIONS FOR STATE CONSTITUTIONAL LAW CALVIN R. MASSEY* The ninth amendment has, of late, been the focus of much academic re- flection. In this Article, Professor Massey provides a provocative thesis regarding the intended purposes and uses of the ninth amendment. Professor Massey con- tends that the amendment is one of substance, guaranteeing the existence of citizens' rights, both created and preserved in state constitutions. Although in recent years the ninth amendment' has become the topic of considerable academic commentary,2 for the most part courts have ignored the amendment as a source of substantive constitutional rights.3 This general lack of attention, however, has been distinguished * Associate Professor of Law, University of California, Hastings. I express my ap- preciation to the National Association of Attorneys General, at whose annual seminar on state constitutional law I delivered a preliminary version of these thoughts. -
The Right to Reasons in Administrative Law H.L
1986] RIGHT TO REASONS 305 THE RIGHT TO REASONS IN ADMINISTRATIVE LAW H.L. KUSHNER* It is generally accepted that there is no common Jaw right to reasons in administrative Jaw. The author reviews the Jaw to determine whether such a right exists and whether it has been changed by the enactment of the Charter of Rights. He questions whether a statutory obligation to give reasons should be enacted. FinaJJy,he looks at the effect of failing to comply with such a requirement. He concludes that although the rules of natural justice and the enactment of s. 7 of the Charter of Rights would support a right to reasons, the courts are reluctant to impose such an obligation on the administrative decision-makers. He feels that the legislatures should require reasons. An ad ministrative decision should be ineffective without reasons if such a requirement were imposed either by the courts or the legislatures. "It may well be argued that there is a third principle of natural justice, 1 namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial". 2 As early as 1875 it is possible to find case authority to support the proposition that if not reasons, at least the grounds upon which a decision has been made must be stated. 3 Certainly there is an abundant number of governmental reports and studies, 4 as well as academic writings 5 which support the value of reasons. However, the majority of these adopt the view that a requirement for reasons does oc.