Conclusion

2021 ◽  
pp. 185-196
Author(s):  
Elliott Young
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
The Supreme Court ◽  
The Us ◽  
Indefinite Detention ◽  
Us Constitution ◽  
Immigrant Detention ◽  
Constitutional Protections

Although the Supreme Court limited detention for non-citizens in the first decade of the twenty-first century (Zadvydas [2000] and Martinez [2005]), its most recent decisions indicate that under certain circumstances non-citizens can be held indefinitely behind bars with no possibility of even a bond hearing. In practice, non-citizens deemed excludable from the United States are like the forever prisoners of Guantanamo, exposed to massive state power with few constitutional protections. Khalid Qassim is one of the forty Guantanamo detainees held for more than eighteen years to date with no charges and no trial. Although Guantanamo prisoners are not voluntary immigrants, they share with immigrants a lack of protection by the US Constitution and a vulnerability to indefinite detention. Immigrant detention today is part of a carceral landscape in the United States that includes more than 2 million citizens behind bars.

People’s right to keep and bear arms

2016 ◽  
Vol 15 (2) ◽  
pp. 173-192 ◽  
Author(s):  
Pille Põiklik
Keyword(s):  
United States ◽  
Supreme Court ◽  
District Of Columbia ◽  
The United States ◽  
Court Case ◽  
Second Amendment ◽  
The Supreme Court ◽  
The Us ◽  
Values And Beliefs ◽  
Us Constitution

The article presents an analysis of the majority and minority opinions from the Supreme Court of the United States issued on District of Columbia v. Heller in 2008. The court case addressed the meaning of the Second Amendment to the US Constitution that establishes gun rights in a famously confusing wording. The analysis applies parts of Fairclough and Fairclough’s (2011, 2012) model of analysing argumentation and also discusses intertextuality to account for how the justices construct their arguments. The analysis shows how the justices shape their arguments on the basis of their values and beliefs, presenting contradictory readings of the amendment, sources of evidence and the preferred application of the amendment.

Insult of Public Officials

2021 ◽  
pp. 388-409
Author(s):  
Christoph Bezemek
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
The United States ◽  
Public Officials ◽  
European Court ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Structural Differences

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.

The Fourth Amendment's Exclusionary Rule: Blurring the Line Between Rule and Exception

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Liz Heffernan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Deterrent Effect ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

The admissibility of unlawfully obtained evidence in criminal proceedings has generated controversy throughout the common law world. In the United States, there has been renewed debate in recent years over the propriety of the judicially-created exclusionary rule as a remedy for violations of the Fourth Amendment guarantee against unreasonable searches and seizures. When defining the scope and purpose of the rule, the US Supreme Court has placed ever increasing emphasis on the likely deterrent effect which suppressing evidence will exert on law enforcement. This article explores the consequent restriction of the exclusionary rule evinced in the contemporary case law including United States v Herring in which the Supreme Court expanded the scope of the so-called "good faith" exception. In conclusion it offers reflection from the perspective of another common law country, Ireland, where the exclusion of unconstitutionally obtained evidence has been the subject of debate.

Treaties in US Domestic Law: Medellín v. Texas in Context

2009 ◽  
Vol 8 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Lucy Reed ◽  
Ilmi Granoff
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Law ◽  
International Court Of Justice ◽  
International Court ◽  
The Us ◽  
Treaty Law ◽  
Us Constitution ◽  
Death Penalty Case

AbstractIn Medellín v. Texas, a Texas death penalty case, the United States Supreme Court decided that it could not enforce what it acknowledged to be an international legal obligation to comply with the Avena judgment of the International Court of Justice. The Supreme Court's judgment in Medellín has put our understanding of the domestic treatment of US treaty law in a state of flux. Under the Supremacy Clause of the US Constitution, treaties are the supreme law of the land: binding, equivalent to federal statutes and enforceable by judges. After Medellín, treaties may not necessarily be enforceable federal law, depending on whether they are self-executing without additional legislation. The Supreme Court's decision depends upon the dramatic expansion of a narrow but necessary exception to the Supremacy Clause provided in an 1829 Supreme Court precedent. The consequence of that expansion is to put the US historical approach to treaty-making in question. This article provides (a) a brief overview of treaty law in the United States, including the law before Medellín regarding the domestic effect of treaty law, (b) an overview of Medellín, (c) a critique of the Court's reasoning in Medellín and (d) a discussion of its consequences.

scholarly journals THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES - A CENTENARY REFLECTION

2012 ◽  
Vol 16 (1) ◽  
pp. 45-78
Author(s):  
Michael J Kirby CMG
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
High Court ◽  
The Supreme Court ◽  
High Court Of Australia ◽  
Federal Supreme

In October 2003 in Melbourne, the High Court of Australia celebrated the centenary of its first sitting.  According to the Australian Constitution, it is the “Federal Supreme Court” of the Australian Commonwealth.1  Although the Constitution envisaged the establishment of the High Court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first Justices.  They took their seats in a ceremony held in the Banco Court in the Supreme Court of Victoria on 6 October 1903.  Exactly a century later, the present Justices assembled in the same courtroom for a sitting to mark the first century of the Court.

Six Notions of ‘Political’ and the United States Supreme Court

1992 ◽  
Vol 22 (1) ◽  
pp. 1-20 ◽  
Author(s):  
Richard Hodder-Williams
Keyword(s):  
United States ◽  
Supreme Court ◽  
Political System ◽  
United States Supreme Court ◽  
The United States ◽  
Appellate Court ◽  
United States Supreme ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

Six different notions of ‘political’ are commonly used in discussions of the US Supreme Court. All six are familiar, but the distinctions among them are seldom carefully drawn. The six are: (1) purely definitional, in the sense that the Supreme Court, as an appellate court of last resort inevitably authoritatively allocates values; (2) empirical, in the sense that litigants use the Court to try to achieve their political purposes; (3) influence seeking, in the sense that the justices have a natural desire to prevail in arguments within the court; (4) prudential, in the sense that the justices frequently consider the probable consequences of their decisions; (5) policy-oriented, in the – usually pejorative – sense that justices are said to use the Court and the law as a cover for pursuing their own policy and other goals; and (6) systemic, in the sense that the Court's decisions frequently, as a matter of fact, have consequences for other parts of the American political system. These six notions are considered in the context of recent abortion decisions.

Freedom of Communication in the US and Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Pedro Tenorio
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
The United States ◽  
Constitutional Court ◽  
The Press ◽  
The Supreme Court ◽  
The Us

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

US Supreme Court, Medellín v. Texas: More than an Assiduous Building Inspector?

2009 ◽  
Vol 22 (1) ◽  
pp. 151-169 ◽  
Author(s):  
JOHN KING GAMBLE ◽  
CHRISTINE M. GIULIANO
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Court Case ◽  
Federal Law ◽  
Strong Reaction ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court ◽  
Supreme Court Case

AbstractThe US Supreme Court case of José Ernesto Medellín, Petitioner v. Texas, decided on 25 March 2008, has generally been seen as a US refusal to follow unambiguous treaty provisions. There has not been such a strong reaction to US behaviour relative to specific treaty obligations since the 1992 Alvarez-Machain case. The Supreme Court majority (six votes to three) held that ‘neither Avena nor the President's Memorandum constitutes directly enforceable federal law’. The uncomfortable – and to many illogical – conclusion reached by the Court was that even though Avena is an ‘international law obligation on the part of the United States’, it is not binding law within the United States even in the light of an explicit presidential order. While the result may be disappointing, the case should be understood in the context of a legal system that (i) makes treaties part of ‘the supreme Law of the Land’; (ii) has developed a complicated concept of self-executing treaties; and (iii) can be hesitant to direct states (sub-national units) to follow presidential directives even on matters of foreign policy.

scholarly journals Ethical Principles on the Freedom of Speech and Expression in the Developed and Developing Countries

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Abdul Alim
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
United States Constitution ◽  
Bill Of Rights ◽  
The Us ◽  
Us Constitution

The First Amendment to the United States Constitution is an essential part of the Bill of Rights. The amendment prohibits making of any law respecting an establishment of religion, obstructing the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering peoples assembling rights in a peaceful manner or prohibiting the petitioning for a governmental remedy of grievances. The guarantees of this Bill of Rights were subject to the limitation imposed by the free speech and press provisions of the First Amendment to the US Constitution as interpreted and applied by the Supreme Court and other courts. The United States and India are the largest democratic country and almost have similar free speech provisions in their Constitutions. This Article is intended to present the free speech provisions of the American and Indian Constitution as a basic fundamental right of human being. It is also to be examined that what is the role of Supreme Court in interpreting the freedom of speech and expression provisions. The study also tries to incorporate the comparison between the looms of both countries as far as freedom of speech is disturbed.

Protecting Free Exercise of Religion under the Indian and the United States Constitutions: the Doctrine of Essential Practices and the Centrality Test

ICL Journal ◽  
2014 ◽  
Vol 8 (3) ◽  
Author(s):  
Khagesh Gautam
Keyword(s):  
United States ◽  
Supreme Court ◽  
Religious Belief ◽  
The United States ◽  
Supreme Courts ◽  
Free Exercise ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

AbstractFree Exercise of Religion is a protected constitutional right under the democratic constitutions of both the biggest democracy in the world ie India and the most powerful democracy in the world ie United States of America. Despite textual similarities in the free-exercise clauses of Constitutions of both of these democracies, there is a big difference in the standards of review whereby free exercise claims are judicially reviewed by their re­spective Supreme Courts. Whereas the US Supreme Court does not give much weight to the sincerity of the religious belief and employs the ‘religion-neutral’ test, the Supreme Court of India gives due weight to the sincerity of the religious belief and employs a ‘reli­gion-central’ test known in Indian free-exercise jurisprudence as the Doctrine of Essential Practices. However, a closer examination of judicial opinions on the point discloses that sincerity of religious belief is not entirely unimportant in US free-exercise jurisprudence but still is not given the kind of importance that it is given in India - a nation that is and has historically been religiously diverse.This paper closely examines the free-exercise jurisprudence as developed by the respec­tive Supreme Courts and argues that in view of the changing religious diversity in the United States perhaps time has come to re-examine the reluctance of the American courts to give its due weightage to the sincerity of religious belief while judicially reviewing free-exercise claims. Relying on several judicial opinions of the US Supreme Court and its sub­ordinate courts in the US and by demonstrating their factual and doctrinal equivalents in the Supreme Court of India, this paper argues that free-exercise clauses of both the US and Indian Constitutions protect not just the right to believe in whichever religion an indi­vidual chooses but also acts in pursuit of religion. The belief-act distinction - an idea at the core of much of US free-exercise jurisprudence is not what is truly protected by the free-exercise clause. What is protected indeed are the acts done in pursuance of religious belief. A line has to be drawn between the acts that are sincerely done in pursuance of religion and those that are not. This line has to be drawn by the Courts on a case to case basis. And that is where US free-exercise jurisprudence would be well assisted in examining Indian free-exercise jurisprudence on the point.

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