Freedom of Religion and Belief in India and Australia: An Introductory Comparative Assessment of Two Federal Constitutional Democracies

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, that protection is far from comprehensive. Instead, unlike its Indian counterpart, the Australian federal democracy depends upon a piecemeal collection of Constitutional, legislative, and common law provisions which, when taken together, seem to achieve plenary protection for free exercise. Still, while India protects free exercise within a comprehensive constitutional framework, and while Australia does so in a disjointed and fragmentary way, both arrive at the same place: a constitutionalism characterized by secularism/separation of church and state combined with a corresponding comprehensive protection for free exercise

Balancing Justice Needs and Private Property in Constitutional Takings Provisions: A Comparative Assessment of India, Australia, and the United States

This Article explores the relationship between justice needs and private property in the constitutional takings provisions of the Indian, Australian, and American constitutions. Building upon established scholarship, it develops a theoretical framework within which to consider the way in which a state balances the requirement to provide minimal levels of justice for its citizens through the re-distribution of goods and resources with the need to protect the private property of individuals. We summarize this framework in what we refer to as the “Justice Needs-Protection of Private Property Continuum.” Using the framework developed, the Article provides an outline of the takings provisions found in the Indian, Australian, and American constitutions. Part I examines Article 300A of the Constitution of India, which contains the scope of the power of compulsory acquisition exercised by the Indian state. Part II assesses Section 51(xxxi) of the Australian Constitution which, unlike its American and Indian counterparts, operates as both a grant of power to the federal government, as well as a limitation imposed upon that power, which may, it seems, operate so as to provide some minimal protection for individual private property interests. Part III considers the Takings Clause of the Fifth Amendment to the United States Constitution which, as interpreted by the Supreme Court, provides perhaps the most robust means among the three jurisdictions considered for protecting the individual private property interests as against state takings. The Conclusion offers comparative reflections on the nature of the takings provision found in each jurisdiction.Krithika Ashok, Paul T. Babie, & John V. Ort

Property, Unbundled Water Entitlements, and Anticommons Tragedies: A Cautionary Tale From Australia

As water becomes an increasingly scarce resource, a lack of clarity in relation to its use can produce both conflict among and inefficient use by users. In order to encourage markets in water and to ensure the viability and functionality of those markets, governments in many jurisdictions have moved away from commons property as a means of water allocation, and towards systems of private property in water. In doing so, one policy and legal option is “unbundling”, which seeks carefully to define both the entitlement to water and its separation into constituent parts. Advocates claim that unbundling makes water rights easier to value, monitor, and trade. But is unbundling the most efficient means of allocating water use rights? Or might such fragmentation produce what has come to be called an “anticommons tragedy”? To answer these questions, this article contains four parts. The Introduction provides the legal background to the modern means of allocating the use of water amongst competing, or rivalrous, users. Part I considers the theoretical nature of property, and the way in which such theory might be extended to water allocation through unbundling. Part II presents unbundling as it has been implemented in the Australian state of South Australia. This allows us to assess the extent to which the stated policy rationale for unbundling—certainty and transferability of entitlements—has been achieved and the extent to which this is a desirable outcome. Our analysis can be applied to any jurisdiction, most notably the arid and semi-arid southwestern United States, considering unbundling as a legal and policy option for the allocation of water use. The Conclusion reflects upon the potential for unbundling water entitlements in arid or semi-arid environments. The South Australian experience reveals a reluctance to embrace unbundling, both on the part of the state in terms of implementing, and on the part of market actors holding existing proprietary interests in water. This reluctance ought to be viewed by other jurisdictions as a warning about the effectiveness and efficiency of unbundling. We show that unbundling efforts may not only fail to provide efficiency gains, but also, and much more worryingly, may in fact drive anticommons tragedies that entirely inhibit any beneficial use. We propose that our anecdotal and theoretical analysis of South Australia requires empirical research both in Australia and in other jurisdictions climatologically, hydrologically, and in underlying legal framework, similar to Australia. Such empirical research will test our conclusions in relation to South Australia, both in respect to the operation of the water market and as to the behavior of market actors

Not Child’s Play: A Constitutional Game of Pass the Story in \u3ci\u3eDobbs\u3c/i\u3e, \u3ci\u3eShurtleff\u3c/i\u3e, and \u3ci\u3eKennedy\u3c/i\u3e

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, what happens next cannot be predicted at the outset. This ongoing quest, though, comes with a cost: certainty. Adding to a story might be a good literary device to keep a listener or reader interested, but it is of little use in a system that at least pays lip service to stare decisis and the rule of law

No Amendment? No Problem: Judges, “Informal Amendment,” and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

No Amendment? No Problem: Judges, Informal Amendment, and the Evolution of Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and the United States

This article considers the way in which judges play a significant role in developing the meaning of a constitution through the exercise of interpretive choices that have the effect of “informally amending” the text. We demonstrate this by examining four written federal democratic constitutions: those of the United States, the first written federal democratic constitution; India, the federal constitution of the largest democracy on earth; and the constitutions of Canada and Australia, both federal and democratic, but emerging from the English unwritten tradition. We divide our consideration of these constitutions into two ideal types, identified by Bruce Ackerman: the “revolutionary” constitutions of the United States and India, and the “adaptive establishmentarian” constitutions of Canada and Australia. In this way, we show that judicial informal amendment changes constitutional meaning in both revolutionary and adaptive settings. We conclude that whatever the origins of a federal democratic constitution, be it revolutionary or adaptive establishmentarian, and whatever the background of the judges and the text with which they work, in the absence of formal amendment, judges use an image of the constitution to give and to change the meaning of a written text over time. This allows a constitution to adapt to changing social, economic, and political conditions where formal amendment, for whatever reason, proves difficult. But, in some cases, it might also leave a federal democracy with a constitution which the Framers did not intend. Whatever the outcome, though, the judges play a central role in the evolution of constitutional meaning over time, for good or for ill

Politics! ? Of Course! A Reflection on Washington v. Trump

Were the decisions in Washington v. Trump political? Of course they were! While some may not care to admit it, President Trump correctly identifies\u27albeit for the wrong reasons\u27the political nature of the decisions. Rather than rendering them illegitimate, as the President suggested, the political nature of the District Court and Ninth Circuit Court of Appeals decisions is the very essence of their legitimacy and validity. This Essay explains why

Ukraine’s Transition from Soviet to Post-Soviet Law: Property as a Lesson in Failed Regulation

Abstract: This article traces the parallel developments of the Ukrainian transition from Soviet to post-Soviet law and from state to private property. To do this, the article is divided into four parts. The first examines the transition of the Ukrainian legal system from pre-Soviet to post-Soviet law. The second traces the microcosm of that transition as it occurred through the failed adoption of private property introduced in the law of post-Soviet Ukraine. The third demonstrates that the flawed approach by which private property has been adopted, with little if any real and effective regulation in post-independence Ukraine, has produced negative consequences for the Ukrainian people. The final part concludes. Keywords: Ukrainian Law, Soviet Law, Civil Law, Post-Soviet Law, Property, Obligation, Regulatio