State Constitutional Law in 1930–31

1931 ◽  
Vol 25 (3) ◽  
pp. 650-670
Author(s):  
Oliver P. Field
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Majority Rule ◽  
State Legislatures ◽  
The State ◽  
Rural Districts ◽  
The Past ◽  
The Supreme Court ◽  
Significant Case ◽  
State Constitutional Law

The most significant case in the field of state constitutional law decided during the past year is that of State ex rel. Miller v. Hinkle, decided by the supreme court of Washington in 1930. This case held that an apportionment act is a “law,” and can be popularly initiated under the initiative and referendum provisions of the constitution of the state of Washington. The court granted a petition for a writ of mandamus to compel the secretary of state to accept a petition submitting to popular referendum a proposal to redistrict the state for purposes of representation in the legislature. The legislature had failed for many years to perform its constitutional duty to reapportion the state, and this case illustrates the most conclusive argument in favor of the use of the initiative and referendum for purposes of ordinary legislation, even though the only legislation to which it be applied be that of reapportionment. Many states are faced with a serious problem in connection with over-representation of rural districts in the legislature and under-representation of urban districts. The initiative and referendum seem to offer about the only way out of the difficulty if state legislatures refuse to correct the inequality. The only alternative is that we change our ideas as to the necessity of majority rule in the selection and composition of legislative bodies, a change which the rural districts appear already to have made.

State Constitutional Law in 1934–35

1935 ◽  
Vol 29 (4) ◽  
pp. 610-630
Author(s):  
Charles G. Haines
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Sole Purpose ◽  
The Supreme Court ◽  
The Subject ◽  
State Taxes ◽  
State Constitutional Law

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a “syncrotax,” or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading “initiative measure providing for adoption of gross receipts act” was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law

2012 ◽  
Vol 4 (1) ◽  
pp. 1-68 ◽  
Author(s):  
Yehiel S. Kaplan
Keyword(s):  
Policy Analysis ◽  
Supreme Court ◽  
Human Dignity ◽  
Constitutional Law ◽  
The State ◽  
Coercive Measures ◽  
Basic Law ◽  
The Supreme Court ◽  
State Of Israel ◽  
Do So

In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.

Exile within the United States

1965 ◽  
Vol 11 (1) ◽  
pp. 22-29
Author(s):  
Brent T. Lynch
Keyword(s):  
United States ◽  
Public Policy ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
The State ◽  
Prison Inmates ◽  
Federal Constitution ◽  
The Supreme Court ◽  
Executive Agency

The Utah Board of Pardons, an executive agency, releases some Utah prison inmates by an order of "conditional termina tion," which directs the recipient to leave the state immediately and remain away permanently. The Supreme Court of Utah has recently held this order to be valid and constitutional, a ruling attacked by this article, which cites cases wherein rights guaranteed by the federal Constitution are violated. Public policy, sound penology, and constitutional law all militate against use of conditional termination.

State Constitutional Law in 1933–34

1934 ◽  
Vol 28 (4) ◽  
pp. 611-627
Author(s):  
Charles G. Haines
Keyword(s):  
Great Britain ◽  
Supreme Court ◽  
Constitutional Law ◽  
The United States ◽  
Stress And Strain ◽  
Anglo Saxon ◽  
The Supreme Court ◽  
Bar Association ◽  
Lord Chancellor ◽  
State Constitutional Law

More than ten years ago, the Earl of Birkenhead, former Lord Chancellor of Great Britain, speaking before the American Bar Association, expressed the belief that it was a question for the future to determine whether the barriers which the framers of the constitutions placed upon the complete freedom of legislative assemblies in the United States will prove equal to the emergencies as they arise and will be as adaptable to the stress and strain of political exigencies as the more flexible and more democratic arrangements of the British constitution. “Your constitution,” he remarked, “is expressed and defined in documents which can be pronounced upon by the Supreme Court. In this sense, your judges are the masters of your executive. Your constitution is a cast-iron document. It falls to be construed by the Supreme Court with the same sense of easy and admitted mastery as any ordinary contract. This circumstance provides a breakwater of enormous value against ill-considered and revolutionary changes.” On the other hand, so far as England is concerned, the genius of the Anglo-Saxon people has, rightly or wrongly, refused to shackle in the slightest degree the constitutional competence of later generations. Any law of Great Britain can be altered by Parliament and no court may challenge the constitutional force of an act of Parliament. It is on the whole premature, thought Lord Birkenhead, to decide whether you or we have been right.

scholarly journals JUDICIAL REVIEW: A STUDY IN REFERENCE TO CONTEMPORARY JUDICIAL SYSTEM IN INDIA

2016 ◽  
Vol 4 (5) ◽  
pp. 51-55
Author(s):  
Rahul Tripathi
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
State Legislatures ◽  
The State ◽  
Judicial System ◽  
The Supreme Court

Judicial review is the process by which the Courts determine whether or not an administrative decision-maker has acted within the power conferred upon him or her by Parliament. That places the question of statutory construction at the heart of the enquiry. The Supreme Court enjoys a position which entrusts it with the power of reviewing the legislative enactments both of Parliament and the State Legislatures. This grants the court a powerful instrument of judicial review under the constitution. Research reveals that the Supreme Court has taken in hand the task of rewriting the Constitution, which is an important aspect in present scenario.

Dissent on the Supreme Court, 1943–44

1945 ◽  
Vol 39 (1) ◽  
pp. 42-54
Author(s):  
C. Herman Pritchett
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Public Attention ◽  
White Marble ◽  
The Past ◽  
Sherman Act ◽  
The Supreme Court ◽  
Criminal Statute ◽  
Verbal Exchanges

During the 1943–44 term of the Supreme Court, public attention was attracted to that body on several occasions by verbal exchanges in decisions of the Court which seemed unusually sharp and personal. On January 3, 1944, Justices Black and Murphy admonished Justice Frankfurter that “for judges to rest their interpretation of statutes on nothing but their own conceptions of ‘morals’ and ‘ethics’ is, to say the least, dangerous business.” In another opinion on the same day, the same two judges referred to “what is patently a wholly gratuitous assertion as to constitutional law in the dissent of Mr. Justice Frankfurter.” In the Magnolia Petroleum Co. case, Justice Jackson observed that the minority judges were apparently willing to enforce the full faith and credit clause “only if the outcome pleases….” Justice Murphy told the Court on one occasion that it was “rewriting” a criminal statute, Justice Jackson called the decision bringing insurance under the Sherman Act a “reckless” one, and Justice Roberts several times waxed sarcastic about the disregarding or over-ruling of precedents. “This tendency,” he said, “indicates an intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded, and involves an assumption that knowledge and wisdom reside in us which was denied to our predecessors.” It is not surprising that the newspapers translated these disagreements into personal terms and began to write about the “feud that was smoldering behind the Grecian columns of the white marble court building.”There are many reasons for not taking such accounts too seriously. Thomas Reed Powell has wisely warned “laymen … not to draw too broad conclusions from any reportorial propensity to play up judicial disagreements as contests like those in war or sports.” Disagreement is no new thing on the Court. The faultless phrasing of the Holmes dissents may have raised to a higher plane, but did not conceal, differences as sharp as any evident during the past term.

scholarly journals Transitional Law and Democracy: late responsibility for torture and other atrocities that ocurred in brazilian Military Coup

2020 ◽  
Vol 41 (85) ◽  
pp. 10-29
Author(s):  
Mauro Benente ◽  
Irene Patricia Nohara ◽  
Silvio Luiz Almeida
Keyword(s):  
Supreme Court ◽  
The State ◽  
Military Coup ◽  
The Past ◽  
The Supreme Court ◽  
Inductive Methods

The main purpose of this study is to focus on the consequences of torture and other atrocities occurred during the Brazilian military coup. Through hypothetical-deductive and inductive methods, it aims to expose the decision of the Supreme Court concerning the Amnesty Law, international condemnation of Brazil in Araguaia case and the responsibility of the State for the death and disappearance of the bodies, including lack of transparency, which are significant worries about transitional law rules. It concerns not only the past, but also has prospective effects, as taking the state oppression out of invisibility contributes to the consolidation of democracy.

scholarly journals Transgender Community in Pakistan: From Marginalized “aliens/others” to Empowered “Citizens”?

2020 ◽  
Vol 2 (2) ◽  
pp. 28-42
Author(s):  
Saad Ali Khan
Keyword(s):  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Past ◽  
State And Society ◽  
The Supreme Court ◽  
The Status

Almost a decade ago in 2009, a landmark decision of the Supreme Court of Pakistan set the trajectory for transgender community’s future. This was considered as the first step that ignited a new spirit among the transgender community in Pakistan; and they started actively pursuing the struggle for their fundamental rights. Transgender community in Pakistan has been marginalized since the inception of Pakistan. In Pakistan, transgender individuals have been pushed to the margins/peripheries of the society facing extreme levels of discrimination, rejection, stigmatization, violence and “otherness”. For years, both state and society have considered these individuals and their communities as “others”, “abnormal” or “threat to the structure of the society”. Faced with these conditions, the transgender community also passively withdrew from the mainstream and accepted this as their fate. This article is aimed to explore and analyze the transition in the status and condition of transgender community in the last decade (2009-2019). It is also aimed to highlight the role of transgender community and other actors in bringing about the change in their status. Reviewing the last decade of activism led by the transgender community and other actors; it is demonstrated in this article that the transgender community has gained momentous/historic achievements (especially legal) since then. From extreme marginalization and stigmatization: they have started to earn respected status in the society. While in the past they were considered as “outcastes” and “others” by the society and state alike, now, they are mostly considered as an integral part of the society especially by the state.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

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