Thursday, November 7, 2013
Alex Seitz-Wald writes over at The Atlantic that we need a new Constitution, and he has some ideas about how to write it.
Seitz-Wald says that our Constitution is seriously out of step with the best and most recent thinking about constitution-making around the world. Indeed, he writes, "Almost nobody uses the U.S. Constitution as a model--not even Americans." More: our differences don't reflect anything especially unique about the United States. Instead, our Constitution is just, well, old.
It's also short, leaving too many holes. That means that the courts can step in to interpret and apply it, giving judges remarkable power. ("Where modern constitutions in other nations get specific, we get judicial activism.") It also ensures the kind of hyper-partisanship, and resulting government break-down, that has become common in our politics.
In contrast, other, more recent constitutions around the world are long and specific, filling in the holes we left open. They also create institutions that protect against the dangers of hyper-partisanship, and voting and participation rules that increase direct citizenship involvement.
But if ours is old and short, it's also uncommonly hard to change. So Seitz-Wald surveys some familiar proposals (an amendment convention called by the states under Article V) and some not-so-familiar ones (the German Pirate Party's "liquid democracy") to get us going. Whatever the process, Seitz-Wald concludes, "the status quo isn't working. We badly need a more perfect union."
Thursday, October 24, 2013
As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.
Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.
They set out the facts at the beginning of their discussion:
On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion by a former Supreme Court Justice, The Honourable Ian Binnie. Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg. After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved. On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.
The Supreme Court of Canada action is now docketed here.As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment,"
Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.
Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."
This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.
Wednesday, October 23, 2013
Human Rights Watch penned a letter to the Chairman of the Vietnamese National Assembly this week, urging the body to protect the rights and liberties of all people in Vietnam as the Assmebly moves forward with the country's new constitution. Here's the press release.
The National Assembly has authority to revise the constitution; it is considering amendments during a session from October 21 to November 30, 2013. The government opened the draft constitution up for public and official comment on January 2, 2013, and received tens of thousands of submissions. But as HRW points out, some who campaigned for changes found themselves targets of government reprisal.
The letter urges the assembly to "ensure that the amendment process brings the constitution into conformity with Vietnam's obligations under international law so that it fully protects the rights and liberties of all people in Vietnam, which will contribute to the country's development." In particular, the group is concerned about these:
-Weakened protections against arbitrary arrest;
-Expansion of the one-party state;
-Extension of control over the armed forces by the Communist Party
-Broad limitations on rights, broader than limitations recognized under international law;
-A weak judiciary and Constitutional Council.
The group also recognized some positive developments, including the more frequent references to human rights, and extension to both citizens and non-citizens; explicit reference to the right to life; a new ban on discrimination on political, economic, cultural, and social grounds; a new prohibition on gender discrimination; new criminal procedure rights; bans on forced labor and child labor; the establishment of a Constitutional Council; and the creation of a National Election Commission.
Tuesday, October 15, 2013
Federalism and state constitutionalism took center stage today, as Judge Steven Rhodes opened hearings on Detroit's eligibility for bankruptcy. Detroit's filing, on July 18, is the largest municipal bankruptcy petition in U.S. history.
According to the Free Press, attorneys for the creditors objecting to bankruptcy argued that federal bankruptcy law "allows the U.S. government to infringe on state rights and gives 'political cover' to Detroit emergency manager Kevyn Orr to pursue pension cuts":
I'd ask your honor to come back with me to elementary and high school when we first talked about what the Constitution means. By turning over Chapter 9 to the federal government and being able to hide behind the bankruptcy process, we lose that accountability that's a cornerstone of what our constitution requires of us.
Creditor attorneys also argued that bankruptcy violates the Michigan Constitution's protection of public pension benefits. Article IX, Section 24 says,
The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
The hearing on eligibility is slated to go through Wednesday; Judge Rhodes will start an eligibility trial on October 23.
Friday, October 11, 2013
The Wayne Law Review (at Wayne State U. Law) is hosting a symposium today titled A Wave of Change: Celebrating the 50th Anniversary of Michigan's Constitution and the Evolution of State Constitutionalism.
This symposium seeks to evaluate the progress of state constitutions over the past 50 years. The symposium will also expose students, practitioners, academics, and the community to the unique and important qualities of state constitutions that are largely overlooked and undervalued.
Speakers will include national scholars on state constitutionalism as well as Michigan judges, practitioners, and community members.
Friday, October 4, 2013
The Constitutional Court of South Africa's unanimous opinion in The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another rendered on October 3, declares two aspects of the statutory rape and statutory sexual assault crimes unconstitutional.
Before the Court was the criminal scheme in which two adolescents who had a sexual encounter with each other could both be guilty of having statutorily raped the other. A "close in age" defense, when the parties' age difference was less than two years, was available in the statutory sexual assault situation, but not in the statutory rape situation in which "penetration" is required.
Written by Justice Sisi Khampepe, the opinion concludes that the criminal scheme violates the inherent right to dignity protected by §10 of the South African Constitution and the right to privacy protected by protected by §59 of the Constitution. The Court's opinion also found that the criminal sanctions violated § 28(2) of the Constitution that provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.” It added that it is "trite that section 28(2) is both a self-standing right and a guiding principle in all matters affecting children, and that the criminal sanctions "exacerbate harm and risk to adolescents by undermining support structures, preventing adolescents from seeking help and potentially driving adolescent sexual behaviour underground."
Writing for the Court, Justice Khampepe resolves the required "means chosen" analysis thusly:
In my view, there are clearly less restrictive means available for achieving the stated purposes of the impugned provisions. First, assuming criminalisation could be shown to be an appropriate response to deter consensual sexual acts which carry the risks of psychological harm, pregnancy or the contraction of sexually transmitted diseases, a narrowly focussed provision would target only those acts where these are potential risks. I have already noted that sexual penetration as defined goes well beyond sexual intercourse. Similarly, most of the acts falling within the ambit of sexual violation are not carriers of the recited risks. Thus, in relation to the purposes of preventing adolescents from suffering psychological harm, contracting sexually transmitted diseases and becoming pregnant, the impugned provisions are clearly and impermissibly over-inclusive. In any event, I am highly doubtful that the introduction of criminal prohibitions could ever be shown to be a constitutionally sound means of preventing the occurrence of such risks as teenage pregnancy. Certainly the respondents have put forward neither argument nor evidence to convince me otherwise.
Additionally, the Court noted that criminalization included sex offender status and registration requirements.
Declaring the sections invalid "to the extent that they impose criminal liability on children under the age of 16 years," the Court then suspended the declaration for 18 months to allow Parliament to "correct the defects" in the legislation.
This is an important opinion for childrens' rights and sexual rights.
[image from The Teddy Bear Clinic via]
Thursday, October 3, 2013
The Idaho Supreme Court ruled today that a magistrate judge's order dismissing a party's motions because the party had been found guilty of contempt for for failing to pay child support violated the party's right to access the courts.
The case is notable because it invokes the Idaho Constitution's "Open Courts" provision--a common provision in state constitutions, but one that's relatively rarely litigated and has spawned a notoriously confused jurisprudence in the state courts. More: the court apparently reached out for the issue.
The case, State of Idaho Department of Health and Welfare v. Slane, involved a father's motions for child custody and modification of child support. The father had been previously judged in contempt of court for failing to pay court-ordered child support, and he was unable to purge the contempt when he filed his motions. A magistrate judge then dismissed the motions because of the father's inability to purge the contempt and pay back child support. A lower court upheld the magistrate's ruling.
The Idaho Supreme Court reversed for reasons dealing with the details of the contempt and the details of the magistrate's order. But then it added an alternative basis for its ruling: the magistrate's order violated the state constitutional open courts provision.
Article I, Section 18 of the Idaho Constitution says that "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."
This kind of "open courts" provision is common in state constitutions. Open courts provisions first appeared in early state constitutions (borrowing from language in Magna Carta), and later state constitutional drafters appear to have simply lifted the text--sometimes modifying it slightly, but without any real thought about what it means.
That's led to a notoriously confused jurisprudence among state courts in interpreting state constitutional open courts provisions. In short, many states have an open courts provision, but courts across states can't seem to agree on exactly what "open courts" means.
So the Idaho Supreme Court's ruling is notable for dealing with open courts--for giving it some dimension and definition, at least in this context. But it's notable for a couple other reasons, too. For one, the court seems to have reached for the issue. Neither party seems to have argued it (based on the briefs, at least), and it's dicta. (The court could have hung its hat on its analysis of the details of the contempt and the magistrate's order, but it added this alternative reason for striking the magistrate's order.) Moreover, in ruling the way that it did, the court overruled three of its own opinions (from the mid-twentieth century) "to the extent that they are inconsistent with this opinion."
The upshot of all this is that the father gets his motions reinstated.
Wednesday, October 2, 2013
Who to blame for the lapse of appropriations, also known as the government "shutdown"?
Over at Washington Post, Dylan Matthews argues
it's James Madison's fault. This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51. And that disease is rapidly getting worse.
Matthews contrasts the situation with Great Britain:
while it is clear in the U.K. who is to blame for poor economic performance, it's far more difficult for American voters to sort out who's responsible. So they just hold to account whoever they get to vote on first. That leads to more or less random shifts in sentiment, with divided government and ensuing deadlock and crises, which makes assigning blame and holding members to account even more difficult.
Matthews isn't the only one over at WAPo holding up the UK as exemplar. Max Fisher explains that "Australia had a government shutdown once. In the end, the queen fired everyone in Parliament." He ends with this arch interrogatory: "Maybe, if we ask nicely, Britain will take us back?"
Tuesday, October 1, 2013
Marc Nadon, nominated by Canada's Prime Minister Stephen Harper (and not subject to a US-type of confirmation process), will soon ascend to Supreme Court of Canada.
Nadon's nomination posed many issues. Constitutionally, a question was whether a judge on the Federal Court of Appeal was eligible for the Supreme Court. Here's one opinion (procured before the announcement) laying out the issues and concluding eligibility. The problem and conclusion could have applied to other jurists, and indeed there was some speculation that the nominee would be someone else: a woman. Canada's Supreme Court now only has three women and Nadon is the fifth man Harper has appointed to the Court.
The Globe and Mail has a good article about Nadon, with quotes from law professors; the article in the Toronto Star has a good discussion of his decisions; and the National Post provides "ten things to know" about him.
He is widely viewed as conservative, based on a few of his rulings as a judge on the Federal Court of Appeal, including a Guantanamo case and a rejection of parental leave for adoptive mothers. (The latter case was compellingly critiqued by Brenda Cossman here).
The Supreme Court of Canada has a mandatory retirement age for justices of 75.
Friday, September 27, 2013
As a bonus, it's illustrated by a still from the classic Australian comedy The Castle where lawyer Dennis Denuto is pleading Daryl Kerrigan’s case in the Federal Court and is so far out of his depth that he starts to refer to the Australian Constitution and rather than a specific textual reference, says that it is just the "vibe of the thing" that the judge should consider.
Here's a video of the pertinent scene:
Tuesday, September 17, 2013
May a defendant in a crminal case wear a niqab, a full face veil, to testify? That's the question a UK judge answered largely in the negative, although making some accomodations in his opinion in Queen v. D.
Recall that the U.K. does not have a First Amendment free exercise of religion- - - as Judge Murphy explains in his opinion:
The jurisdiction of England and Wales is essentially (though not formally) a secular democracy. I recognise that the jurisdiction is in the rather odd position that part of it (England) has an established church, while the other part (Wales) does not. But in neither part does the church interfere with the working of the courts.
Indeed, as a BBC analysis notes about the case in "The Crown Court at Blackfriars," "faith has long been part of the fabric of the state - so much so that the court at the heart of the veil case is named after a medieval religious order."
Nevertheless, the UK is bound by the European Convention on Human Rights, including Article 9, section 2 of which provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
The judge balanced the freedom to manifest religion against the interests of public order (and fair trial), finding that the defendant must remove her niqab in order to testify, although she need not testify in open court and her image would not be disseminated.
For further analysis of the case, see Dressing Constitutionally Blog here.
Tuesday, September 3, 2013
Joanna Chiu writes at The Atlantic that Chinese President Xi Jinping's recent comments in support of legal reform have reignited a debate over constitutionalism and constitutional reform in the country. ("Reignited," because the government put a stop to those discussions when it imprisoned Liu Xiaobo and interrogated others in response to a manifest, "Charter 08," by a group of intellectuals calling for constitutionalism and restrained Party power.) Still, she says, any push for constitutionalism or constitutional reform still gets heavy push-back from the government. And an internal Party memo she cites calls for the eradication of "seven subversive currents" in Chinese society; those include "Western constitutional democracy," universal human rights values, media independence, and civic participation.
Chiu quotes a Shanghai lawyer to summarize the problem:
[The constitution] looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases. Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.
As for the government's reaction to talk about constitutionalism and reform, this anecdote is telling:
Nevertheless, calls for China to adhere to the 1982 constitution remain. In December, Beijing University professor Zhang Qianfan published "A Proposal for Consensus Reform," co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter. The proposal suggested setting up a review committee within the National People's Congress as a first step to give the constitution real power. But the article, which was posted on Zhang's personal blog and the Beijing University Law School website, was soon deleted without explanation.
Sunday, August 11, 2013
The Sixth Circuit on Friday ruled in City of Pontiac Retired Employees Association v. Schimmel that the Michigan state legislature may have violated the state constitution in approving the state's emergency manager law for immediate effect. The court remanded the case to the district court for consideration of that claim. If the district court holds that the law violates the state constitution, and if that ruling is upheld on appeal, the actions of the emergency manager for the City of Pontiac will be void.
The 2-1 ruling is notable insofar as a federal appeals court took it upon itself to rule on a state constitutional claim not raised by the parties, relating to state legislative procedure--all to avoid the plaintiffs' federal constitutional claims. The next steps in the case, the remand to the district court and the appeal that will surely follow, will be important because those rulings could put in jeopardy any action by any state emergency manager under a state law giving emergency managers broad powers.
The case arose after the Michigan state legislature approved Public Act 4, authorizing an emergency manager to temporarily reject, modify, or terminate existing collective bargaining agreements. Pursuant to this power, the City of Pontiac's emergency manager, Louis Schimmel, modified the collective bargaining agreements and severance benefits, including pension benefits, of Pontiac's retired employees. The employees sued, arguing Schimmel and Pontiac violated their federal constitutional rights, including rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause. They did not raise state law claims.
Still, there may have been state law problems with Schimmel's actions. First, the legislature approved Public Act 4 for immediate effect with less than a 2/3 vote, despite a state constitutional provision that requires a 2/3 vote for immediate effect. (Without a 2/3 vote, a legislative act takes effect 90 days after the end of the legislative session in which it was passed.) If the legislature enacted Public Act 4 in violation of the state constitution, Schimmel's actions pursuant to it are void.
Next, even if the state legislature complied with the state constitution, Public Act 4 may still be invalid. That's because Michigan voters rejected Public Act 4 in a citizen-initiated referendum in 2012. The legislature later enacted a law substantially similar to Public Act 4, but insulated from a voter referendum under the state constitution because it contains an appropriation provision. All this means that the emergency manager authority under Public Act 4 and its successor is questionable.
But the parties didn't raise or argue these state law issues. Instead, the Sixth Circuit did.
The Sixth Circuit dodged the plaintiffs' federal constitutional arguments (in the name of constitutional avoidance) and ruled that the lower court should consider the state law claims. In particular, the Sixth Circuit said that the state legislature's practice, across political parties, of approving laws for immediate effect even when they don't get the constitutionally required 2/3 vote may raise constitutional problems:
Apparently, a two-thirds vote occurs whenever the presiding officer says it occurs--irrespective of the actual vote. This authority is unchecked and often results in passing motions for immediate effect that could not receive the constitutionally required two-thirds vote. Apparently, the Michigan Legislature believes the Michigan Constitution can be ignored.
There's a state intermediate appellate court ruling that seems to say that this kind of action doesn't violate the state constitution. But there's no determinate state supreme court ruling on the issue.
For now, the case goes back to the district court for consideration of the state law issues raised by the Sixth Circuit.
Saturday, August 10, 2013
As we think about surveillance of electronic communication in the United States, it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens. Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations.
Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.
Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36). The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.
Thursday, July 11, 2013
For many around the world, the U.S. Constitution is no longer the gold standard. That's because more recent constitutions, like South Africa's, contain a broader set of individual rights. (And those rights are often better theorized, to boot.)
But Drew F. Cohen argues in U.S. News that the Supreme Court's recent ruling in Windsor, striking the federal definition of marriage under DOMA as only between one man and one woman, may help change that. Cohen, a law clerk for the Chief Justice of the South African Constitutional Court, writes, "The decision to overturn the Defense of Marriage Act, however, has an uncanny potential to realign the U.S. constitution with the emerging international concensus on human rights issues and recast it as a modern source of jurisprudential power."
Tuesday, July 2, 2013
Illinois Governor Pat Quinn today issued an "amendatory veto" on Illinois HB 183, the state legislature's effort to provide for lawful concealed carrying of handguns, after the Seventh Circuit earlier this year ruled that Illinois's ban on concealed carry violated the Second Amendment.
Governor Quinn's amendatory veto sends HB 183 back to the legislature, along with his recommended changes to the bill. The legislature can override the veto as to the original HB 183 by a 3/5 vote in both houses; it can approve Governor Quinn's recommendations, however, by a bare majority in both houses. If the legislature so approves, and if the Governor certifies that the approval meets his recommendations, the amendatory-vetoed-bill becomes law.
The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated.
Governor Quinn objected to the very loose standards for concealed carry in HB 183. In particular, the bill allows people to carry guns into establishments serving alcohol and into the workplace, and it contains no cap on the number of guns or the size or amount of ammunition clips that may be carried. Governor Quinn also objected to the bill's override of local authority to ban assault weapons--a provision not required by the Seventh Circuit's ruling (which went only to concealed carry).
The Seventh Circuit gave the state until July 9 to write a concealed carry law. According to the Chicago Tribune, "Quinn's move also raises the possibility that the General Assembly could fail to agree on either option and leave Illinois with a wide-open gun law that even sponsors of the concealed carry law have sought to avoid."
Monday, July 1, 2013
The Alabama Constitutional Revision Commission is considering a proposal to rewrite a section of the state constitution that allows racially segregated schools. The provision is an embarrassment (to say the very least), but state voters can't seem to vote it out of the state constitution. (Voters failed to strike it twice in the last 10 years. The latest vote, in 2012, likely failed because some argued that the amendment didn't go far enough--because it wouldn't have repealed the provision saying that there's no constitutional right to a public education.)
This, the week after the Supreme Court struck the coverage formula for the preclearance provision in the Voting Rights Act--a case brought by Alabama's own Shelby County.
The provision, Section 256, as amended by Amendment 111, approved by voters in 1956, reads:
It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense . . . .
To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide.
The Commission today considered a new Section 256, deleting the reference to segregated schools and the lack of right to education, and stating simply that "The legislature shall establish, organize and maintain a system of public schools throughout the state for the benefit of children thereof." But the Commission couldn't agree on final language and sent the revision to a subcommittee.
The Commission also rejected a provision that would have provided a stronger veto for the governor. (The legislature can currently override a veto with a bare majority in both houses. The proposal would have required a 3/5 vote in both houses.)
Wednesday, June 19, 2013
Reuters reports that the Myanmar Constitution may foil Aung San Suu Kyi's plans to become the country's next president in the general election in 2015. According to the report, the Myanmar Constitution "bars anyone married to a foreigner or who has childrens who are foreign citizens. Suu Kyi and her late husband, the British academic Michael Aris, had two children who are British."
Section 59(f) of the Myanmar Constitution requires that the president and vice-president
shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to enjoy the rights and privileges of a subject of a foreign government or citizen of a foreign country.
The provision was apparently included to exclude Suu Kyi from the presidency.
It also seems that an amendment is unlikely. Section 436(a) requires a 75% vote in parliament, where current and former military have a lock, and a majority in a national referendum.
Thursday, May 16, 2013
The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery. A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.
But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care). M.C., now 8 years old, brings the case through his adoptive parents.
The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990). The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds.
The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery. Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue.
An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.
Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:
This is definitely a case to watch.
May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Thursday, May 9, 2013
What is Chinese constitutionalism? Larry Catá Backer's new article, Towards a Robust Theory of the Chinese Constitutional State: Between Formalism and Legitimacy in Jiang Shigong’s Constitutionalism, available on ssrn, not only provides answers to that query, but develops the topic in sophisticated and important ways. As Backer (pictured right) notes,
The Chinese constitutional system does not imitate those of other developed states, because it political ideology is grounded in Marxist Leninism which suggests a different relationship between the state, the people and the manner of exercising political and economic power, which over the course of nearly a century suggested what Western theorists generally viewed as the anti-constitutionalism of Soviet Stalinism and its variants.
But Backer is not content with such simplistic dismissals. Instead, exploring the arguments of Chinese LawProf Jiang Shigong (pictured left), Backer traces different strands of Chinese constitutionalism within the context of Chinese culture and society and their possibilities for development. Backer notes that the "critical distinction for Jiang between Chinese and Western constitutionalism lies in the willingness to fold a Party-State system within notions of substantive constitutionalism—not just in terms of legitimacy but also in terms of providing a foundation for building a governmental apparatus that provides for its people in a way functionally equivalent to that in Western democracies."
For ConLaw comparativists, Backer's article is essential reading: it situates Chinese constitutionalism in global contexts and more importantly, evaluates its various aspects in comparison to each other. For ConLawProfs who may not consider themselves comparativists, Backer's article may be even more essential. Backer's exploration is theoretically sophisticated, nuanced, and guaranteed to enrich any reader's thinking about the role of any constitution in any nation, including the United States.