Fatal in Theory and Strict in Fact: an Empirical Analysis of Strict Scrutiny in the Federal Courts
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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. -
Nondelegation and the Unitary Executive
NONDELEGATION AND THE UNITARY EXECUTIVE Douglas H. Ginsburg∗ Steven Menashi∗∗ Americans have always mistrusted executive power, but only re- cently has “the unitary executive” emerged as the bogeyman of Amer- ican politics. According to popular accounts, the idea of the unitary executive is one of “presidential dictatorship”1 that promises not only “a dramatic expansion of the chief executive’s powers”2 but also “a minimum of legislative or judicial oversight”3 for an American Presi- dent to exercise “essentially limitless power”4 and thereby to “destroy the balance of power shared by our three co-equal branches of gov- ernment.”5 Readers of the daily press are led to conclude the very notion of a unitary executive is a demonic modern invention of po- litical conservatives,6 “a marginal constitutional theory” invented by Professor John Yoo at UC Berkeley,7 or a bald-faced power grab con- jured up by the administration of George W. Bush,8 including, most ∗ Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit. ∗∗ Olin/Searle Fellow, Georgetown University Law Center. The authors thank Richard Ep- stein and Jeremy Rabkin for helpful comments on an earlier draft. 1 John E. Finn, Opinion, Enumerating Absolute Power? Who Needs the Rest of the Constitution?, HARTFORD COURANT, Apr. 6, 2008, at C1. 2 Tim Rutten, Book Review, Lincoln, As Defined by War, L.A. TIMES, Oct. 29, 2008, at E1. 3 Editorial, Executive Excess, GLOBE & MAIL (Toronto), Nov. 12, 2008, at A22. 4 Robyn Blumner, Once Again We’ll Be a Nation of Laws, ST. -
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. -
An Equal Protection Standard for National Origin Subclassifications: the Context That Matters
City University of New York (CUNY) CUNY Academic Works Publications and Research CUNY School of Law 2007 An Equal Protection Standard for National Origin Subclassifications: The Context That Matters Jenny Rivera CUNY School of Law How does access to this work benefit ou?y Let us know! More information about this work at: https://academicworks.cuny.edu/cl_pubs/156 Discover additional works at: https://academicworks.cuny.edu This work is made publicly available by the City University of New York (CUNY). Contact: [email protected] Copyright 0t72007 by Jenny Rivera Readers interested in reprints or copies of this article may contact the Washington Law Review Association which has full license and authority to grant such requests AN EQUAL PROTECTION STANDARD FOR NATIONAL ORIGIN SUBCLASSIFICATIONS: THE CONTEXT THAT MATTERS Jenny Rivera* Abstract: The Supreme Court has stated, "[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause."' Judicial review of legislative race- based classifications has been dominated by the context of the United States' history of race- based oppression and consideration of the effects of institutional racism. Racial context has also dominated judicial review of legislative classifications based on national origin. This pattern is seen, for example, in challenges to government affirmative action programs that define Latinos according to national origin subclasses. As a matter of law, these national origin-based classifications, like race-based classifications, are subject to strict scrutiny and can only be part of "narrowly tailored measures that further compelling governmental interests., 2 In applying this two-pronged test to national origin classifications, courts have struggled to identify factors that determine whether the remedy is narrowly tailored and whether there is a compelling governmental interest. -
Recent Experience with Intermediate Scrutiny Under the North Carolina Constitution: Blankenship V
MARTIN FINAL 5/20/2011 3:35 PM Recent Experience with Intermediate Scrutiny Under the North Carolina Constitution: Blankenship v. Bartlett and King ex rel. Harvey- Barrow v. Beaufort County Board of Education Mark D. Martin & Daniel F.E. Smith* I. INTRODUCTION In two recent interpretations of the North Carolina Constitution, the Supreme Court of North Carolina adopted and developed a unique form of intermediate scrutiny. Blankenship v. Bartlett1 addressed a challenge to judicial districts under the state equal protection clause.2 King ex rel. Harvey-Barrow v. Beaufort County Board of Education3 decided a state constitutional claim to alternative-education services during a disciplinary suspension.4 By applying intermediate scrutiny, the court resolved these two challenging state constitutional cases. As the name implies—and as the bench and bar know very well— intermediate scrutiny falls somewhere “in between” strict scrutiny and rational basis review.5 Strict scrutiny, the “most exacting scrutiny,” is applied to suspect classifications and those impinging on fundamental * Senior Associate Justice and Research Assistant, Supreme Court of North Carolina. Nothing in this Article should be viewed as an opinion about the merits of pending or future cases that may come before the Supreme Court of North Carolina. The purpose of this Article is to chronicle significant legal developments in North Carolina and place them in the academic literature on state constitutional adjudication. The legal value vel non of these developments and their implications for future cases are left to the academy and other legal commentators. We wish to thank Justice Robert H. Edmunds, Tom Davis, and Jake Parker for their assistance with this Article. -
Charter of Fundamental Rights of the European Union
18.12.2000EN Official Journal of the European Communities C 364/1 CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION (2000/C 364/01) 18.12.2000EN Official Journal of the European Communities C 364/3 PROCLAMACIÓN SOLEMNE HØJTIDELIG PROKLAMATION FEIERLICHE PROKLAMATION —`˝˙ˆÕÑÉ˚˙ ˜É`˚˙ÑÕ˛˙ SOLEMN PROCLAMATION PROCLAMATION SOLENNELLE FORÓGRA SOLLÚNTA PROCLAMAZIONE SOLENNE PLECHTIGE AFKONDIGING PROCLAMA˙ˆO SOLENE JUHLALLINEN JULISTUS HÖGTIDLIG PROKLAMATION 18.12.2000EN Official Journal of the European Communities C 364/5 El Parlamento Europeo, el Consejo y la Comisión proclaman solemnemente en tanto que Carta de los Derechos Fundamentales de la Unión Europea el texto que figura a continuación. Europa-Parlamentet, Rådet og Kommissionen proklamerer hłjtideligt den tekst, der fłlger nedenfor, som Den Europæiske Unions charter om grundlæggende rettigheder. Das Europäische Parlament, der Rat und die Kommission proklamieren feierlich den nachstehenden Text als Charta der Grundrechte der Europäischen Union. Ôï ¯ıæøðÆœŒü ˚ïØíïâïýºØï, ôï ÓıìâïýºØï ŒÆØ ç ¯ðØôæïðÞ äØÆŒçæýóóïıí ðÆíçªıæØŒÜ, øò ×Üæôç ¨åìåºØøäþí ˜ØŒÆØøìÜôøí ôçò ¯ıæøðÆœŒÞò ‚íøóçò, ôï Œåßìåíï ðïı ÆŒïºïıŁåß. The European Parliament, the Council and the Commission solemnly proclaim the text below as the Charter of fundamental rights of the European Union. Le Parlement europØen, le Conseil et la Commission proclament solennellement en tant que Charte des droits fondamentaux de l’Union europØenne le texte repris ci-aprŁs. Forógraíonn Parlaimint na hEorpa, an Chomhairle agus an Coimisiœn go sollœnta an tØacs thíos mar an Chairt um Chearta Bunœsacha den Aontas Eorpach. Il Parlamento europeo, il Consiglio e la Commissione proclamano solennemente quale Carta dei diritti fondamentali dell’Unione europea il testo riportato in appresso. Het Europees Parlement, de Raad en de Commissie kondigen plechtig als Handvest van de grondrechten van de Europese Unie de hierna opgenomen tekst af. -
Legal Challenges to State COVID-19 Orders
October 2020 Legal Challenges to State COVID-19 Orders Scores of lawsuits have been filed across the country challenging the use of state executive authority in response to the COVID-19 pandemic.i The lawsuits are being brought in both state and federal courts and make claims based on both state and federal law. Two noteworthy categories of lawsuits have emerged. The first category is lawsuits based on state law claims alleging an overreach or misuse of state executive power. The second category is lawsuits accusing state executives of violating civil liberties and other rights protected by the United States Constitution and federal law.ii Lawsuits Based on State Law and Use of Executive Authority Key Findings and Considerations • The underlying legal authority of state Of primary concern are lawsuits being brought under executives to respond to public health state law claims and aiming to eliminate executive crises is being challenged. public health authority. These suits often allege an • Claims are being made that public overreach or misuse of state executive power and health falls outside of the state include claims that the executive actions violate the executive’s emergency powers. non-delegation doctrine (i.e., legislative bodies • The judicial deference to state action cannot delegate their power to the executive), that in response to public health the emergency response laws are a violation of the emergencies afforded by Jacobson v. separation of powers between the legislative and Massachusetts is being weighed executive branches, that the governor has exceeded against more recent standards of the authority provided by emergency response laws judicial review. -
The Equal Rights Amendment Revisited
Notre Dame Law Review Volume 94 | Issue 2 Article 10 1-2019 The qualE Rights Amendment Revisited Bridget L. Murphy Notre Dame Law School Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, Law and Gender Commons, and the Legislation Commons Recommended Citation 94 Notre Dame L. Rev. 937 (2019). This Note is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\94-2\NDL210.txt unknown Seq: 1 18-DEC-18 7:48 THE EQUAL RIGHTS AMENDMENT REVISITED Bridget L. Murphy* [I]t’s humiliating. A new amendment we vote on declaring that I am equal under the law to a man. I am mortified to discover there’s reason to believe I wasn’t before. I am a citizen of this country. I am not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old, white men. The same [Amendment] Fourteen that protects you, protects me. And I went to law school just to make sure. —Ainsley Hayes, 20011 If I could choose an amendment to add to this constitution, it would be the Equal Rights Amendment . It means that women are people equal in stature before the law. And that’s a fundamental constitutional principle. I think we have achieved that through legislation. -
Universal Declaration of Human Rights
Universal Declaration of Human Rights Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. -
Romer V. Evans: a Legal and Political Analysis
Minnesota Journal of Law & Inequality Volume 15 Issue 2 Article 1 December 1997 Romer v. Evans: A Legal and Political Analysis Caren G. Dubnoff Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Caren G. Dubnoff, Romer v. Evans: A Legal and Political Analysis, 15(2) LAW & INEQ. 275 (1997). Available at: https://scholarship.law.umn.edu/lawineq/vol15/iss2/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Romer v. Evans: A Legal and Political Analysis Caren G. Dubnoff* Introduction Despite the Supreme Court's role as final arbiter of the "law of the land," its power to effect social change is limited. For exam- ple, school desegregation, mandated by the Court in 1954, was not actually implemented until years later when Congress and the President finally took action.1 As a result, prayer in public schools, repeatedly deemed illegal by the Court, continues in many parts of the country even today. 2 To some degree, whether the Court's po- * Associate Professor, Department of Political Science, College of the Holy Cross. Ph.D. 1974, Columbia University; A.B. 1964, Bryn Mawr. The author wishes to thank Jill Moeller for her most helpful editorial assistance. 1. Several studies have demonstrated that Brown v. Board of Education, 347 U.S. 483 (1954), produced little school desegregation by itself. One of the earliest of these was J.W. PELTASON, FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL DESEGREGATION (1961) (demonstrating how district court judges evaded the decision, leaving school segregation largely in place).