An Ignored Jurisprudence: Bush v. Gore

2020 ◽  
pp. 183-200
Author(s):  
Edward A. Jr. Purcell
Keyword(s):  
Contextual Factors ◽  
Equal Protection ◽  
The Political ◽  
Equal Protection Clause ◽  
Republican Candidate ◽  
Chief Justice ◽  
Political Question

This chapter examines Justice Antonin Scalia’s actions in the notorious case of Bush v. Gore. There, five conservative justices voted to stop the recount of the Florida vote in the election of 2000 and make George W. Bush president. The chapter outlines the position of the justices and focuses on the two opinions that Scalia joined, a per curiam for seven relying on the Equal Protection Clause and a concurrence by Chief Justice William Rehnquist for three of the seven based on Article II. The chapter argues that both of those opinions contradicted virtually all of Scalia’s jurisprudential principles, including those involving standing and the political question doctrine. Further, it argues that both of those opinions—together with the solo opinion Scalia wrote supporting a stay of the Florida recount and certain other contextual factors—demonstrate that Scalia’s actions in the case were deeply personal and inspired by his intense desire to see the Republican candidate win the election.

Chief Justice Sandile Ngcobo’s Separation of Powers Jurisprudence

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Mtendeweka Mhango
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
The Political ◽  
Constitutional Court ◽  
Chief Justice ◽  
Constitutional Jurisprudence ◽  
Political Question

This article examines Justice Ngcobo’s profound contribution to the development of the foundational jurisprudence on separation of powers in South Africa. The article is premised on the fact that Ngcobo can be better understood in the context of his contribution to the foundational jurisprudence. In this way, we will better comprehend how Ngcobo’s jurisprudence fits into our contemporary understanding of the Constitution. The key question this article seeks to investigate is to what extent has Ngcobo’s jurisprudence on separation of powers has impacted or shaped South African constitutional law. The article specifically investigates whether, in his contribution to the constitutional jurisprudence on separation of powers, Ngcobo developed a political question doctrine theory for South Africa. I find that he did, and that while Justice Ngcobo’s political question jurisprudence was not clearly articulated or endorsed by the majority of the Justices while he was on the bench, the Constitutional Court has recently unanimously endorsed some of his political question doctrine theories and arguments thereby crystallising the political question theory in South Africa. The article examines Ngcobo’s contribution through the lens of the judgments that he penned as well as his academic commentaries

Reason, Development, and the Conflicts of Human Ends: Sir Isaiah Berlin's Vision of Politics

1980 ◽  
Vol 74 (1) ◽  
pp. 38-52 ◽  
Author(s):  
Robert A. Kocis
Keyword(s):  
Moral Development ◽  
Human Nature ◽  
Human Dignity ◽  
Active Participation ◽  
Human Interaction ◽  
Human Values ◽  
The Political ◽  
Positive Liberty ◽  
Political Question

At the root of the conflict between Berlin and his critics is a fundamental disagreement over the possibility of certainty and over the relation of human ends to politics. Gerald MacCallum's formalist critique obscures the political question of whose values a free person is at liberty to pursue. Macpherson's attempt to defend positive liberty as not rationalistic is shown to fail because he (a) conflates liberty with its conditions and (b) assumes a rational pattern to human moral development. And Crick charges Berlin with ignoring politics, understood as active participation in the polis. Finally, Berlin's conception of politics as a form of human interaction aimed at creating the conditions of human dignity in a situation where we sincerely disagree over the ends of life is shown to be an effort to liberate us to live life for our own purposes. Yet Berlin's defense of liberty is problematic because it is too skeptical; to overcome this difficulty, a non-teleological yet developmentalist account of human nature and a weakly hierarchical account of human values is suggested.

scholarly journals The Political Stakes of Academic Research: Perspectives on Johannesburg

2005 ◽  
Vol 48 (2) ◽  
pp. 87-109 ◽  
Author(s):  
Ivor Chipkin
Keyword(s):  
Inner City ◽  
Political Institutions ◽  
Academic Research ◽  
The Political ◽  
Political Equality ◽  
Research Perspectives ◽  
Shift Analysis ◽  
Demographic Shifts ◽  
The City ◽  
Political Question

Abstract:This article considers a burgeoning literature on Johannesburg from the perspective of the sorts of questions it asks about the city. There is a substantial and lively literature on questions of poverty and equality, class and race. These studies are strongly informed by the idea that the mechanisms that produce such inequalities are key to understanding the nature of Johannesburg as a city: in terms of how its economy works and how political institutions function, but also in terms of what sort of city Johannesburg is and can be. I consider sociological and economic studies of the inner city that try to account for demographic shifts in the inner city and for processes of social and physical degeneration. I review urban anthropologies of inner-city society, considering in particular new forms of social and economic organization among inner-city residents. Related to these, I discuss debates among scholars about the prospects for governing the city, paying special attention to the consequences for such readings on partnerships. I also discuss an emerging literature, critical of that above, which seeks to shift analysis of the city toward studies of culture and identity. These literatures do not simply approach the city through different disciplinary lenses (sociology or economy or anthropology or cultural studies) . They come to their studies from different normative perspectives. For some, the key political question of the day is one about social and political equality in its various forms. For others, it is about the degree to which Johannesburg (or Africa) is different from or the same as other places in the world. This paper has tried to bring to the fore the political (and not simply policy) consequences of these different views. It concludes not by seeking to reconcile these perspectives, but by suggesting a way of retaining a commitment to equality and justice while not reducing them simply to questions of economy. At stake, I argue, are questions of democratic culture and of sociability.

Equal Opportunities: Protecting The Rights of AIDS-Linked Children in The Classroom

1989 ◽  
Vol 14 (4) ◽  
pp. 377-430
Author(s):  
Maureen Anne MacFarlane
Keyword(s):  
Public School ◽  
School Boards ◽  
Section 504 ◽  
Equal Protection ◽  
Equal Opportunities ◽  
Hypothetical Case ◽  
Equal Protection Clause ◽  
Health Safety ◽  
Number Of Children ◽  
The Past

Within the past few years a number of children have been excluded from attending public school because they are linked to AIDS. School boards have justified their decisions to exclude these children on the basis that protecting the public's health, safety and welfare outweighs the rights of these children. Most courts have rejected this justification and have held that either under the equal protection clause of the Constitution or section 504 of the Rehabilitaiton Act of 1973, children cannot be excluded from the classroom solely because they are linked to AIDS.This Note discusses both section 504 and equal protection analyses used by the courts. When analyzing a school board's decision to exclude an AIDS-linked child from the classroom, most courts have used a higher level of scrutiny and individualized inquiry in order to ensure that the rights of both the AIDS-linked child and his or her uninfected classmates and teachers are protected.After applying these analyses to a hypothetical case, this Note concludes that both section 504 and the equal protection clause ensure that AIDS-linked children will not be barred from the classroom unless the presence of additional factors increases the risk of these children transmitting the virus to others.

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