3320 research outputs found
Sort by
Child Abuse Reporting: Rethinking Child Protection
Get PDFThe general public has been bewildered by the magnitude of sex abuse cases and the widespread failure by pillars of the community to notify appropriate authorities. The crime of sexually abusing children is punishable in all jurisdictions and this article examines the duty to report suspected cases by individuals in positions of trust over young people, such as in the church or university sports. The Federal Child Abuse Prevention and Treatment Act (CAPTA) defines child maltreatment as an act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, sexual abuse, or exploitation, and establishes minimum federal standards. Each state has its own definitions of maltreatment and every state identifies persons who are required to report child abuse. As such, state law is highly variable in defining who has a mandatory duty to report, and clergy and other individuals in close supervision of children (e.g., athletic coaches, scout leaders, volunteers in religious programs, and university officials) may necessarily hold such duty.
The article outlines why there are strong moral reasons the law should require all adults in close supervision of children to report any individual who they have good reason to believe has abused a child and moreover outlines how to ensure prompt reporting of abuse, while still ensuring that respected individuals are not falsely accused
Judicial Engagement Through the Lens of \u3ci\u3eLee Optical\u3c/i\u3e
Get PDFKeynote remarks at the symposium on Judicial Engagement and the Role of Judges in Enforcing the Constitution , delivered on March 22, 2012 at the George Mason University School of Law
Where Liberty Lies: Civil Society and Individual Rights After 9/11
Get PDFHad someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object to measures that sacrificed the rights of others—Arabs and Muslims, and especially Arab and Muslim foreigners—for Americans’ security.
Yet perhaps the most important and surprising lesson of the past decade is that constitutional and human rights, which seemed so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially chafed at the constraints of constitutional, statutory, and international law, which it treated as inconvenient obstacles on the path to security. The administration acted as if no one would dare to—or could effectively—check it. But in time, the executive branch of the most powerful nation in the world was compelled to adapt its response to legal demands.
Equally surprising is that these restraints for the most part were imposed not by the formal mechanisms of checks and balances, but by more informal influences, often sparked by efforts of civil society organizations that advocated, educated, organized, demonstrated, and litigated for constitutional and human rights. The American constitutional system is traditionally understood to rely on the separation of powers and judicial review to protect liberty and impose legal restrictions on government officials. After September 11, however, as in other periods of crisis in American history, all three branches were often compromised in their commitments to liberty, equality, dignity, fair process, and the “rule of law.” By contrast, civil society groups dedicated to constitutional and rule-of-law values, such as the American Civil Liberties Union, the Center for Constitutional Rights, the American Bar Association, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, the Constitution Project, the Muslim Public Affairs Council, and the Council on American Islamic Relations, consistently defended constitutional and human rights—and in so doing reinforced the checking function of constitutional and international law. They issued reports identifying and condemning lawless ventures; provided material and sources to the media to help spread the word; filed lawsuits in domestic and international fora challenging allegedly illegal initiatives; organized and educated the public about the importance of adhering to constitutional and human rights commitments; testified in Congressional hearings on torture, illegal surveillance, and Guantánamo; and coordinated with foreign governments and international nongovernmental organizations to bring diplomatic pressure to bear on the United States to conform its actions to constitutional and international law.
Scholars have long focused on the role constitutions and the formal structures of government that they create play in reinforcing commitments to long-term principles when ordinary political forces are inclined to seek shortcuts. The United States’ experience during the decade following September 11 suggests that this focus is incomplete; we should pay at least as much attention to the work civil society groups do to “enforce” constitutional rights. Much like a constitution itself, such groups stand for, and can shore up, commitments to principle when those commitments are most tested. And while we often speak metaphorically about a “living Constitution,” civil society groups are actually living embodiments of these commitments, comprised of human beings who have joined together out of a shared, lived dedication to constitutional and human rights principles. As such, they are well positioned to influence the polity’s and the government’s reactions in real time, and in crisis periods may be the only institutional counterforce to the impulse to sacrifice rights for security.
In this article, I argue that a more robust understanding of how constitutions work must take into account what I call “civil society constitutionalism,” in which nongovernmental organizations advocate in multiple ways for adherence to the rule of law, in court and out, and in so doing, do much of the “work” of constitutionalism. That role is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function. I argue that the Bush administration was compelled to curtail nearly all of its most aggressive initiatives, and not because a court ordered him to do so, Congress required him to do so, or the American public demanded such change. In the final section, I suggest that the role that civil society organizations committed to constitutional and human rights played in this period has lessons for constitutional theory, constitutional doctrine, and constitutional practice
The Disdain Campaign
Get PDFA response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).
In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as “a thinly veiled critique of Congress: the fools couldn’t even figure out how to structure section § 5000A to render it constitutional.” And of the Chief Justice’s attitude, she says that “[h]e conveyed disdain even as he upheld the Act.” In her conclusion, she asks, “if the Justices disdain us, how ought we to respond?” This question echoes how she begins her provocative piece: “The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them.”
Although Professor Karlan also offers insightful observations comparing the Roberts Court with the Warren Court, her principal theme is reflected in these passages and the very title of her piece: “Democracy and Disdain.” According to Karlan, in addition to whatever may be wrong with their principles and doctrines, the conservative Justices simply have a bad attitude. To paraphrase the Captain in Cool Hand Luke, they don’t have their “minds right.” It is this quite distinctive thesis the author wishes to examine here. For, as it happens, the left knows a thing or two about disdain
Health Care and the Illegal Immigrant
Get PDFThe question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be entitled to take advantage of public benefits. Rather than meaningfully engaging each other, these sides simply square off across a chasm of absolutes. The purpose of this article is to chart a middle course between these extremes that focuses on the practical aspects of the issue while relegating hyperbole and high-minded moral claims to the side. It seeks to answer two questions: First, whether extending health coverage to illegal immigrants is mandated by Constitutional law? Second, whether there are compelling policy reasons for extending such coverage, even if extending coverage is not legally mandated? The conclusion of this article is that while health coverage for illegal immigrants is not required under prevailing constitutional norms, extending coverage as a matter of policy would serve the broader interests of the United States. Extending coverage would be beneficial both as a matter of economics and public health, meaning the spillover benefits to extending coverage would reach all U.S. citizens and all those already entrenched in the U.S. health care and health insurance systems. Although it seems unlikely that the recommendations of this article will, in reality, bridge the gaps between the warring sides, its benefits lay in its pragmatic and practical sketch of how a solution may be reached. Thus, at the least, it presents a blue-print on how best to approach this contentious issue
Reflections on Kony 2012
Get PDFIn spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN
Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption
Get PDFThis essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).
Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: Originalism remains even now a powerful vehicle for conservative mobilization. ... [L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s. [A]ny reasonably well-informed observer knows that the term \u27living Constitution\u27 encodes liberal sympathies, just as originalism encodes conservative ones. ... [O]riginalism cannot easily be appropriated to progressive constitutional arguments. The conventional wisdom associates originalism with the right and living constitutionalism with the left.
But are these claims correct? Could there be a progressive constitutional theory that is consistent with the core premises of originalism? This essay will answer these questions with a focus on the views of Jack Balkin as they were developed in Constitutional Redemption and Living Originalism. Here is the roadmap. Part II will address the question, What is fidelity to the original meaning of the Constitution? by laying out a brief history of originalist theory, identifying the core of originalist thought, and then explicating the idea of constitutional fidelity. Part III will address the question, What is faith in the possibility of constitutional redemption? by explicating the notions of redemption, faith, and possibility. Part IV will then explore the widely held view that belief in progressive constitutional redemption is impossible, and will assess Jack Balkin\u27s arguments for a reconciliation of progressive faith and constitutional fidelity. Part V concludes
The Ninth Circuit\u27s \u3ci\u3ePerry\u3c/i\u3e Decision and the Constitutional Politics of Marriage Equality
Get PDFIn Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”
Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him
A Framework Convention on Global Health: Health for All, Justice for All
Get PDFHealth inequalities represent perhaps the most consequential global health challenge and yet they persist despite increased funding and innovative programs. The United Nations is revising the Millennium Development Goals (MDGs) that will shape the world for many years to come. What would a transformative post-MDG framework for global health justice look like? A global coalition of civil society and academics—the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI)—has formed an international campaign to advocate for a Framework Convention on Global Health (FCGH). Recently endorsed by the UN Secretary-General, the FCGH would reimagine global governance for health, offering a new post-MDG vision. This Special Communication describes the key modalities of an FCGH to illustrate how it would improve health and reduce inequalities. The modalities would include defining national responsibilities for the population’s health; defining international responsibilities for reliable, sustainable funding; setting global health priorities; coordinating fragmented activities; reshaping global governance for health; and providing strong global health leadership through the World Health Organization