Suchergebnisse

Maintains that the US Supreme Court's current "minimalism" was clearly demonstrated in their decisions related to the 2000 presidential election, especially their unanimous decision to remand to the FL Supreme Court for clarification in Bush v. Palm Beach County Canvassing Board. The 5-4 decision in Bush v. Gore was also minimalist because it professed to resolve the issue without proposing any future remedies. Although the US Supreme Court did the nation a service by ending the chaotic postelection period, & might even have avoided a constitutional crisis, it is argued that the decision not only was bad from the standpoint of legal reasoning, but also produced "order without law." The process of the US Supreme Court's involvement in the 2000 presidential election is outlined, & each step is discussed in terms of both its merits & its problematic reasoning. Possible outcomes if the Court had affirmed the FL Supreme Court are explored & the implications of the Court's decision for the future of equality in voting are discussed. J. Lindroth

The 2000 presidential election illustrated many of the discriminatory practices that continue to exist in the US. (1) Expensive, & more accurate, vote tabulating machinery is more likely to exist in wealthier non-minority communities. (2) Maneuvering around existing rules by both contestants led to favoritism for the candidate with the most powerful "connections." (3) The Supreme Court's conservative majority decided this election. Finally, the jurisprudential underpinnings of Bush v. Gore are weak, & the Court's recommendations in this case will never be considered constitutional law. These weaknesses were not alleviated once Bush took office. Instead of working to form a true coalition government, he exaggerated his legitimacy problems by continuing the pursuit of one-party rule. Meanwhile, questions remain as to the continued validity of the electoral college. Each of these elements points to the inconclusive nature of the 2000 election -- a topic that merits further scholarly consideration. K. A. Larsen

"The enactment and enforcement of law is regarded as one of the most important attributes of sovereign statehood. Traditionally, 'sovereignty' has been understood as meaning the special quality of a state expressed in its ability to shape its own legal system and to enforce it within the territorial limits of its jurisdiction. Hence the question of the extent to which member states of the European Union are still masters of their legal systems turns out to be a crucial test of their sovereignty. This chapter argues that the legal system of Germany is a Europeanized legal system, in terms both of a European modification of national laws and of a Europeanization of legal culture and modes of governance. This argument takes the form of testing the degree of Europeanization in six different cases, including the field of constitutional law. The conclusion is that the legal system of Germany is a Europeanized legal system and that the German legal profession is quite aware of this development. However, the relationship between the EU and the member states is not to be regarded as an exclusive 'top-down' process. Looking at two examples drawn from public law, the chapter shows that the political and legal European multi-level system can be understood as an ongoing process of interaction between the EU and the national legal systems." (author's abstract)

A constitutional focus is applied to a consideration of the concept of "the people" & their role in Australia's evolving deliberative democracy in light of the persistence of the monarchy in the body politic. Following a brief explication of the concept of "the people" & their ambiguous position in the Australian constitutional landscape, a particular manifestation of the people is examined in terms of the constitutional notions of sovereignty & public trust. It is contended that these approaches offer an adequate understanding of the foundational role of the people; however, using this idea in other than an aspiration form foregrounds issues of political representation & democracy. Attention is given to Dicey's notions of parliamentary sovereignty & supreme court challenges to it, before addressing Australian republicanism & the public trust vis-a-vis the judiciary. J. Zendejas

Acknowledging that a certain "rule of law" does not necessarily advance freedom, it is contended that the content & administration of law do affect human freedom. It is asserted that freedom is not located in the legislation, constitutional ideology, or common law of a given political system. Using Cicero's aphoristic contention that slavery is necessary for freedom, it is argued that freedom in law is incompatible with absolute freedom; however, freedom is contingent on certain constraining conditions. Consequently, freedom according to the law is embedded in the assertion that law & freedom are capable of being intertwined. Three conclusions from an analysis of the delimitation of law & freedom on an international level are advanced (eg, law is dependent on the prior exercise of freedom). It is concluded that law is most easily located in judicial explanations of legal principles. 20 References. J. W. Parker

Considers the actions of the US Supreme Court in Bush v. Gore within the larger context of an emerging constitutional law of democratic politics as a systemic whole. An exploration of earlier Supreme Court constitution cases involving democratic politics focuses on the question of "judicial culture," described as historical interpretations, empirical assumptions, & normative ideals of democracy that appear to inform & influence the constitutional law of democracy. It is maintained that certain justices consistently lean toward the same side even though none of the cases examined had obvious partisan consequences. There is a point beyond explicit legal judgment where judges work on the basis of their implicit understandings of conflict, order, stability, & competition in democracy, & that is seen as the place where they have the greatest latitude to operate. Defining moments in the recent law of democracy are drawn on to shed light on images of democracy that played a role in Bush v. Gore & to emphasize that patterned responses are often the result of historical interpretations & cultural assumptions. J. Lindroth

A defense of the US Supreme Court decision in Bush v. Gore relies on Chief Justice Rehnquist's argument that overturning the decision of the FL Supreme Court was proper because its rulings were contrary to Article II, Section 1, Clause 2 of the US Constitution, which states, "Each State shall appoint, in such Manner as the Legislature Thereof May Direct," electors for the offices of President & Vice President. Difficulties involved in the equal protection argument used by the five conservative justices to support their decision are examined in light of past cases. Although their rationale would require equal standards across different precincts, it is maintained that it could not demand adoption of any single standard, & therefore called for the case to be sent back to the FL Supreme Court for a final decision on the result of the vote. The rationale behind Rehnquist's alternative ground for decision is said to be much stronger because it involves alleged unconstitutional deviation from state law on the part of the FL Supreme Court. J. Lindroth

Argues that the decisions of the US Supreme Court in Bush v. Gore are an example of a new model of equal protection that emerged with earlier Court decisions regarding race-conscious redistricting. Attention is called to George W. Bush's earlier appearance before the US Supreme Court in Bush v. Vera, a highly partisan challenge to 1991 congressional redistricting in TX. It is contended that both Bush cases involve "structural equal protection" that is aimed at regulating institutional arrangements within which politics are carried out, rather than at protecting the rights of individuals or groups, especially disadvantaged groups. Numerous cases that paved the way for the establishment of the new equal protection doctrine are examined, along with the Court's rationale for intervening in the 2000 presidential election. It is contended that the equality problems stressed by the Court in Bush v. Gore were not as severe as those that could have been resolved with a manual recount, & the Court's recent use of equal protection produces less, not more, equality & democracy. J. Lindroth

An introductory chapter maintains that the controversial decisions of the US Supreme Court in Bush v. Gore raise significant questions about the nature & practice of political equality. A chronological overview of events in the 2000 presidential election details the legal process from early TV announcements that Al Gore had won FL, through attempts at certification, calls for hand counts, injunctions to stop them, the struggle between Florida's secretary of state & the FL Supreme Court, & the final appeal to the highest court in the land. The essays by leading scholars of constitutional & electoral law offer differing opinions about the legality & defensibility of the US Supreme Court's actions. It is contended that their decision fits within the framework of a "neorealist account of legal judgment," which suggests that, in some cases, people's ultimate judgments are dominated by their initial emotional evaluation. Other factors involved in how people, including judges, make decisions in controversial situations are discussed. A synopsis of each chapter is included. J. Lindroth

The Equal Protection Clause of the Fourteenth Amendment has allowed the Supreme Court to intervene in the political process from the 1800s through the US presidential election of 2000. The landmark case, Bush v. Gore, rudely awakened Americans to the fact that the Constitution does not grant individual citizens the right to vote. The Equal Protection Clause itself makes no mention of voting as an inherent right. In the 1960s, the Court used the Equal Protection Clause to involve itself in the causes of reapportionment, vote dilution, & disenfranchisement. However, in many of these cases, it is evident that without Congress, the Court decisions are worth little more than lip service. This reliance on Congress, & a barrier of distrust, led directly to the Court's decision in Bush v. Gore. In fact, it was ultimately the Supreme Court's distrust of Congress's ability to protect the Equal Protection Clause that caused the Court to halt the FL recount. Though the Court's decision in Bush v. Gore was unprecedented, it represents only the latest incarnation of the Supreme Court's inherently regulatory nature. It is unfortunate that this decision has degraded both the Court's reputation & the spirit of American democracy. K. A. Larsen

Maintains that the US Supreme Court's actions in Bush v. Gore represent determination on the part of several justices to overturn any ruling of the FL Supreme Court that was unfavorable to George W. Bush because they believed that court would use any means to give the election to Al Gore. It is argued that these justices acted on the basis of intuitions about the outcome, rather than about the law, when they reversed the FL Court's decision, thereby replacing the supposed lawlessness of the FL Court with lawlessness of their own. An examination of how the justices approached Bush v. Gore, especially in regard to the Equal Protection Clause of the constitution, shows that only two justices concluded that the recount ordered by the FL Supreme Court violated Equal Protection. Not only was there no credible evidence that the FL Supreme Court's decision was a partisan effort to influence the election, but the US Supreme Court made a mockery of the law by acting without a sound legal basis to do so. J. Lindroth

Gives the US Supreme Court "two & a half cheers" for its actions in Bush v. Gore, maintaining that the loss of a half cheer was due to their failure to render a bipartisan consensus on the remand issue, which tarnished both the Court & the Bush presidency. Even though Bush probably would have won the recount in FL, & the FL Supreme Court placed the US Supreme Court in an awkward position, the US Court was correct in finding that a standardless recount would violate the 14th Amendment. However, it is contended that the outcome would have been more legitimate if the majority of the justices had joined Justices Souter & Breyer in requiring a remand under strict constitutional standards. The constitutional problem involved in the unequal treatment of identical voters is discussed, along with the often dubious strategies of both Al Gore & George W. Bush's legal teams; much criticism could have been avoided if Gore's position had been a little fairer, & Bush's position a little more accommodating. J. Lindroth

A concluding chapter emphasizes the wide range of opinions generated by the 2000 presidential election, especially the intervention of the US Supreme Court, & examines the impact of these divisions on both the future nature of legal reasoning, & the relation between law & politics. Calls for reform that have emerged from the Bush-Gore contest are reviewed, including changes in the actual operation of election campaigns to afford equal & fair representation. Bush v. Gore put the spotlight on mundane aspects of elections that previously went unnoticed, such as different types of voting machines with varying patterns of failure rates. The call for reform via constitutional litigation is focused primarily on the Electoral College system & the division of power between large & small states. Historical reasons for the Electoral College system are examined, along with the possible consequences of abolishing it. The belief that the Bush-Gore election was a statistical tie is discussed, & suggestions are made for ways to improve the election process without making radical changes to the electoral system. J. Lindroth

Discusses the potential of various sensory-enhancing technologies in terrorist situations & the legal & constitutional questions raised by their use. The utility & efficiency of ambient light magnification, audio amplification, infrared lighting, & radar are compared. The potential for abuse of Fourth Amendment privacy rights, as seen in the 1967 Katz v. US case, & the legal implications of specific applications of these technologies in "classic" (drug interdiction) & "nonclassic" (counterterrorist) situations are assessed. It is shown how courts rely on passive vs penetrative technology distinctions to resolve these issues & how improvements in technology could provide a more accurate audio & visual record of terrorist incidents. These distinctions may influence the development & marketing of future sensory-enhancing technologies. T. Arnold

Describes delegation & accountability in the Federal Republic of Germany, especially in light of the German Basic Law of 1949. The establishment of democratic delegation & accountability was profoundly informed by the country's pursuit of political stability & consensus, & the desire to permanently eradicate dictatorship. Consequently the constitutional design was characterized by a comparatively robust dispersion of political power that facilitated bargaining among various political & economic elites. It is posited here that the Basic Law was effective in realizing democratic regime stability, a wide consensus, & a high caliber of government & policy cohesion. But it has been less successful in terms of efficiency, accountability, & transparency. 1 Table, 70 References. K. Coddon