Comparative Study and Contextual Study of Constitutionalization of National Identity

The relationship between law and national identity is complex, with legal frameworks often reflecting and shaping the cultural and historical narratives of a nation. Constitutional documents serve as foundational texts that codify the values, principles, and aspirations of a nation, providing a framework for governance and shaping its collective identity. The study focuses on the constitutionalization of national identity as an incorporation of identity elements into constitutional documents. The dissertation is constructed to answer explanatory and exploratory questions. First, the dissertation focuses on exploring general patterns of the practice. Second, the dissertation attempts to explain the drafters\u27 intention(s) behind the incorporation of a national identity into a constitution. There is no sufficient attention given to the issue of constitutionalization of national identity in comparison to the literature on constitutional identity. Methodologically, the study approaches the first question through a legal textual analysis in which the study examines the wording of a text to identify a taxonomy. For the explanatory question, this study utilizes a discourse theory to approach the issue. By using a discourse theory, attempts to locate the text within its social and political contexts. This should enable the study to associate the text with ideological and nationalist trends that influence the drafting process. The study finds that the practice of constitutionalization has evolved from a symbolic to an instrumental one where symbolic constitutionalization refers to the wording of a text that does not empower an individual, group, or the state. On the other hand, instrumental constitutionalization refers to a constitutional text that empowers an individual, group, or state, and it may influence the institutional design. The evolution of the practice stems from international changes in the world and theoretical influences such as the collapse of the Soviet Union and the rise of multiculturalism. In addition, the study finds that the analyzed constitutionalization process demonstrates an attempt to control or influence discourse on national identity. This function is symbolic, and it conceals different purposes such as transformative, hegemonic, legitimation, and negotiation. The study\u27s main contribution is conceptual where the study defines the concept and illustrates the different uses of it. This should inform studies on constitutional design

The Antitrust Text

The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world. This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it? Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects

The Living Constitution: Why the Supreme Court Must Part Ways with Exclusionary Eminent Domain

The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public use” requirement through a living constitutional framework justifies heightened judicial review for blight removal takings and simultaneously justifies takings for the provision of affordable housing. With the post-Kelo legislative backlash shifting the doctrine into an exclusionary practice, an adjustment must be made to combat the affordable housing crisis. As this Note suggests, a reinterpretation of the “public use” requirement and accompanying doctrinal shift in the use of eminent domain is not only constitutional but better aligned with current public opinion and values

Alternative Routes for Military Grievance

Once a country experiences a coup, that country is likely to experience another coup within six years and, since 1950, there have been at least 240 military coups. On average, about half of all coup attempts involve fatalities, with most resulting in governmental and civilian deaths. So, once a country experiences a coup, it is statistically likely that another coup will expose citizens to more uncertainty about their safety. For a citizen whose country has experienced a recent coup, this data is alarming as an incident of one coup starts the stopwatch for another coup occurring within a few years. This paper contributes to this underdeveloped area of constitutional design by proposing a framework for the constitutional contextualization of military provisions so that constitutions can better respond to coups. Specifically, this paper focuses on the constitutional contextualization of military provisions for countries with a history of recurring military coups. Considering the statistics, countries with recurrent coups suffer from an acute risk to the security of their citizens. More-over, these countries face the greatest democratization challenges as one coup effectively jeopardizes constitutional order. This paper proposes that a new military constitutional design frame-work may advance democratization by thwarting subsequent coups, which otherwise significantly stall progress. This paper is organized into four sections. The first section overviews what I have termed the “common military constitution design model.” In this section, I lay out the typical model and explain how this model fits within the broader separation of powers structure. The second section analyzes the coup experiences of Thailand, Bangladesh, Cambodia, and Burma; details the motivations that prompted the coup; and discusses the consequences of the first and subsequent coups. Through all four countries, I show how the legislative and judicial branches failed as constitutional avenues for the military to express its grievances against the executive. In providing these histories, I do not claim that any of the militaries’ rationales for waging coups were legitimate. Rather, the purpose of this section is to demonstrate how—legitimacy notwithstanding—military officers’ subjective perspective that they lack adequate means to air their grievances thereby justifies a coup that dismantles democratization progress. The third section builds off the first two sections by explaining how the common military constitutional design framework perpetuates coup occurrences in democratizing countries that have already experienced a coup. Finally, the fourth section outlines my military constitutional design framework, which reorients the constitutional position of the military to provide the military an appropriate method to air its grievances against the executive. The goal is to deter the military from waging a coup by providing a constitutional avenue for military officers to air their grievances against the executive

State Taxes and Pike Balancing

For many decades, the Supreme Court has applied different doctrinal frameworks in evaluating whether state laws violate the dormant Commerce Clause depending on whether the law at issue was a regulation or a tax. For state regulations, the Court’s test has included asking whether the regulation imposes costs on interstate commerce that are “clearly excessive” relative to its local benefits. But the Court has never applied this so-called “Pike balancing test” to state taxes. In its most recent state tax decision, however—South Dakota v. Wayfair, Inc.—the Court indicated Pike offers a basis for challenging state tax schemes under the Commerce Clause. Wayfair has thus created a puzzle: How should undue burden analysis apply to state taxes? Contrary to the positions of several courts and scholars, this article contends that the best understanding of governing constitutional law is that state tax liabilities themselves—independent of any costs of compliance—are categorically incapable of imposing burdens that are constitutionally “undue.” A survey of the different types of incidental costs state taxes might impose on interstate commerce shows that those costs cannot be “clearly excessive” in a constitutional sense—either because precedent forecloses that conclusion or because the inquiry Pike posits is not amenable to judicial resolution. This explains why the Court has never invalidated a state tax liability due to its incidental burden on interstate commerce. And it explains why the Court mentioned Pike specifically in Wayfair, which concerned the burden of a tax compliance obligation, not a tax liability. In short, the only state tax disputes for which undue burden analysis is appropriate are those involving the costs of tax compliance obligations. In every other type of state tax case, “Pike balancing” is beside the point

Henderson named one of the most influential people in legal education

Indiana University Maurer School of Law Professor Bill Henderson has once again been recognized as one of the most influential people in legal education, but he’s not the only one with ties to the Law School on this year’s list. The National Jurist ranked Henderson #18 on its list. Kellye Testy, a 1991 alumna of the Law School and president and CEO of the Law School Admission Council, is ranked second