Constitutional Orders

Constitutional Roundup, Redux

The following are a few important constitutional items from around the globe:

This week, immigration headlines the news and oral arguments in Arizona v. United States were presented before the Supreme Court on April 23. At issue is the constitutionality of several of the provisions of Arizona’s controversial anti-immigration measure,  SB1070. For legal analysis, see here, here, and here; for historical analysis, see Jack Chin’s entry on PrawfsBlawg, here; for the New York Times editorial perspective, see here.

More news out of Egypt: on April 15, 2012, the Supreme Electoral Commission cited violations of electoral law for its disqualification of ten candidates from the approaching presidential race (see here for a post from the Law Library of Congress, here for the Economist’s take, and here for an article from Al Youm [in Arabic]). Each of the candidates appealed, but the Commission upheld its rulings on disqualification. Several of the disqualified candidates are well-known, including three front runners, and the disqualifications amount to the elimination of half of the race’s contenders.

The United Nations has undertaken its first mission to the U.S., in an investigation into the rights of Native Americans. James Anaya, who is the James Lenoir Professor of Human Rights Law and Policy at the University of Arizona, has been appointed Special Rapporteur and will conduct the investigation. Professor Anaya is a well-known expert on indigenous rights, international law, and the state (see his Indigenous Peoples in International Law, for example). The UN Human Rights Council designated Professor Anaya as an independent expert; he began his official visit on April 23, 2012, and will conclude the visit on May 4.

Brazil’s Federal Supreme Court has a new President. Minister Ayres Britto was inaugurated on April 19, 2012. He will hold the post for only seven months, because he will reach the compulsory retirement age of 70 in November. He will be succeeded by his current Vice President, Joaquim Barbosa. Minister Britto also presides over the National Council of Justice, which supervises the judiciary and individual judges.  Minister Britto is notable for his conviction that the judiciary plays a key role in improving political morality.

Also on the 23^rd of April: Shakespeare’s birthday, which may or may not be a constitutional issue, depending perhaps on the extent of one’s Anglophilia, and on one’s perceptions of Henry V, Shakespeare’s literary treatment of the monarch, and Kenneth Branagh’s (memorable?) Saint Crispin’s Day speech, delivered in his celluloid portrayal of the king. Perhaps a closer connection to constitutional concerns can be found in Henry’s fundamental claim to the throne of France, which opens the play, and which is based in Salic Law, the medieval legal code of the Franks, including Pippin, Clovis, and Charlemagne (see here and here). As with many of Shakespeare’s works, in Henry V, law (as a sort of hypostasized historical presence) and legal reasoning are key organizing frames for both living in society and writing about it.

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Constitutional Roundup: A Few Interesting Goings-On

Here are a few items from various constitutional worlds:

The meaning of the “bad men provisions” in the 1868 Treaty of Fort Laramie is at issue in a suit brought on behalf of two Lakota men killed by a non-Indian drunken driver on the Pine Ridge Reservation. The provisions read, in part, “If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof ... proceed at once to cause the offender to be arrested and punished ... and also reimburse the injured person....” (see here). The suit was brought before the US Federal Court of Claims (“Claims Court”), which held that the drunk driver was not a “bad man” within the original meaning of the Treaty, and that the provisions are no longer relevant, anyway. The US Court of Appeals for the Fourth Circuit rejected the Claims Court’s analysis and decision, and vacated with remand for further proceedings. You can read the Fourth Circuit’s decision here. 

Over at ConstitutionMaking.org, Nathan Brown discusses the complexities of Egypt’s “transitional process” since the overthrow of Mubarak. One of the elements of complexity is the suspension of the constituent assembly. A brief entry on the suspension, by Tom Ginsburg, is here. In addition, Caveat Legislatoris, a related piece by Daniel Lansberg-Rodriguez on constitutional reforms and the Arab Spring, has been published by the Chicago Council on Global Affairs.

The United States Court of Appeals for the Ninth Circuit has ruled in Minority Television Project, Inc. v FCC. The Court, in a divided opinion, held that two bans on advertising are unconstitutional and contrary to the First Amendment. At issue was a Federal law (47 U.S.C. § 399b) which “prohibits public broadcast radio and television stations from transmitting over the public airways: 1) advertisements for goods and services on behalf of for-profit entities, 2) advertisements regarding issues of public importance or interest (“public issues”), and 3) political advertisements.” The Court upheld the first provision, but found the others unconstitutional. The decision can be found here; a Constitutional Law Prof Blog entry can be found here. Expect increased advertising on public television and radio.

The UK Coalition Government has been ramping up its calls for reform of the European Court of Human Rights (ECtHR). In the main, the UK Government is advocating for “greater subsidiarity,” which means locating the primary responsibility for protecting rights with the Member States (see, for example, the Guardian’s report on Prime Minister David Cameron’s speech to the Parliamentary Assembly of the Council of Europe, here). Over on the UK Constitutional Law Group’s site, Helen Fenwick takes a look at the issue of reform of the ECtHR, and asks whether the Court is adopting an approach that appeases signatory states calling for reforms. She analyzes two recent ECtHR decisions, Austin v UK (2012) and Von Hannover v Germany (2012), and suggests that they may indicate “a very recent reversal of certain trends in the reasoning of the Court, and may be intended to deflect the criticism that the Court has been too interventionist.”

 

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