Dawn E. Johnsen
Bio: Dawn E. Johnsen is an academic researcher from Indiana University. The author has contributed to research in topics: Presidential system & Supreme court. The author has an hindex of 9, co-authored 26 publications receiving 283 citations. Previous affiliations of Dawn E. Johnsen include University of Michigan & Fordham University.
TL;DR: The social determination of how the legal system should view the fetus should be informed by a careful consideration of all potential implications, and the desire to provide legal protection to the fetus often motivates this consideration.
Abstract: Our legal system historically has treated the fetus as part of the woman bearing it and has afforded it no rights as an entity separate from her. A few exceptions to this general rule have been created where necessary to protect the interests of born individuals. In recent years, however, courts and state legislatures have increasingly granted fetuses rights traditionally enjoyed by persons. Some of these recent "fetal rights" differ radically from the initial legal recognition of the fetus in that they view the fetus as an entity independent from the pregnant woman with interests that are potentially hostile to hers. In 'extreme cases, the state has curtailed the autonomy of women during pregnancy to further what were perceived as adverse fetal interests. For example, women have been compelled to submit to surgery in the form of cesarean sections although they preferred to deliver their children through vaginal childbirth. Similarly, a state court has held that a child may sue her or his mother for injuries resulting from the woman's actions during pregnancy. The social determination of how the legal system should view the fetus should be informed by a careful consideration of all potential implications.1 Although the desire to provide legal protection to the fetus often
TL;DR: In this paper, the authors consider the appropriate role of Congress and the President in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine.
Abstract: Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on its own constitutional views). The article proposes what I call functional departmentalism as an alternative approach that would recognize the shared nature of the interpretive enterprise and only limited, context-dependent authority to act on constitutional views at odds with the views of the other branches. Issues of nonjudicial interpretation and competing constitutional views arise, of course, in diverse contexts (currently ranging, for example, from executive branch authority to engage in torture to the appropriate standards for judicial selection). To illustrate, the article concludes with a functional departmentalist approach to congressional legislation that would regulate abortion premised on constitutional views arguably inconsistent with Supreme Court doctrine (including the Partial Birth Abortion Ban Act of 2003 and versions of the Freedom of Choice Act' introduced, but never enacted, beginning in 1989).
TL;DR: The role of non-judicial entities in the development of constitutional meaning has been extensively studied in the last few decades as mentioned in this paper, with a focus on the role of Congress and the President.
Abstract: I INTRODUCTION One of the vibrant constitutional debates at the turn of the twenty-first century concerns enduring questions about the appropriate role of nonjudicial entities--especially Congress and the President--in the development of constitutional meaning. (1) The Supreme Court, of course, asserted its own authority to act on its interpretations of the Constitution two hundred years ago in Marbury v. Madison. (2) Although academic debate over judicial review continues, the Court's authority to review the constitutionality of acts of Congress and the President today is integral to our constitutional system. Judicial review, though, is distinct from judicial supremacy. As growing numbers of commentators note, the Marbury Court claimed relatively limited interpretive authority for the courts: to interpret and apply the Constitution only in the course of resolving justiciable cases and controversies. The Court did not purport to resolve whether and when fidelity to the Constitution requires Congress and the President to adhere to the Court's interpretations as they exercise their own constitutional powers. Congress and the President, too, are constitutionally obligated to uphold, and thus must first interpret, the Constitution. How should they approach this responsibility? Should they follow relevant Supreme Court precedent, even precedent with which they disagree, or may they take official action premised on constitutional views at odds with those of the Court? Abortion provides one context in which to contemplate interpretive authority: What should guide a member of Congress in voting on a bill that would restrict the performance of abortions, or a President contemplating whether to sign or veto such a bill? What about a President faced with how (or even whether) to enforce constitutionally dubious abortion restrictions in a federal statute, or whether to defend the law in court against constitutional challenge? Should the political branches (that is, Congress and the President) invariably seek to conform their actions to the Court's then-current standard, whether it is the Roe (3) strict scrutiny standard, the less protective Casey (4) "undue burden" standard, or some future test? Or is it ever constitutionally appropriate for their actions to vary, for example, with whether they agree with the Court's decision in Roe or Casey? Such questions lie at the heart of a debate sometimes characterized as a choice between "judicial supremacy," which emphasizes the need for the political branches to defer to the Court as the "ultimate interpreter of the Constitution," (5) and "departmentalism," which recognizes the authority of each federal branch or "department" to interpret the Constitution independently. One striking aspect of this debate is the limited relevance of ideology. Legal scholars across the ideological spectrum increasingly endorse roles for the President and Congress and processes for constitutional interpretation that are less dominated by the courts. A divide does exist, though, between those academics who write about nonjudicial interpretation and almost everyone else. Judicial supremacy is unquestionably the dominant view in United States law, politics, and society, including among lawyers, who study, teach, and practice law almost entirely from the perspective of judicial doctrine. (6) Two major developments during the 1980s and 1990s elevated both interest in and the practical importance of nonjudicial interpretation: President Ronald Reagan's support for strong presidential interpretive independence, and the Rehnquist Court's subsequent adoption, seemingly to the contrary, of an extremely strong version of judicial supremacy. The Reagan Administration asserted broad and controversial interpretive authority, especially through Attorney General Edwin Meese III. The Department of Justice under Meese's leadership developed comprehensive and detailed constitutional positions at odds with Supreme Court precedent on a broad range of issues, including abortion, congressional power, federalism, and affirmative action. …
TL;DR: In this article, the authors report on 413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a women's physical liberty.
Abstract: In November 2011, the citizens of Mississippi voted down Proposition 26, a "personhood" measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on preg- nant women have been published. Such cases, however, have never been systemati- cally identified and documented, nor has the basis for the deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty. First, we describe key characteristics of the cases and the women, including socioeconomic status and race. Second, we inves- tigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.
TL;DR: In this paper, an "overcoming obstructions" account of why judicial review might be supported by existing power holders is presented. But it is not clear why current officeholders might tolerate an activist judiciary.
Abstract: The exercise of constitutional review by an independent and active judiciary is commonly regarded as against the interest of current government officials, who presumably prefer to exercise power without interference. In this article, I advance an “overcoming obstructions” account of why judicial review might be supported by existing power holders. When current elected officials are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions and disrupt the status quo. This provides an explanation for why current officeholders might tolerate an activist judiciary. This dynamic is illustrated with case studies from American constitutional history addressing obstructions associated with federalism, entrenched interests, and fragmented and cross-pressured political coalitions.
TL;DR: In a national survey, the scope and circumstances of court-ordered obstetrical procedures in cases in which the women had refused therapy deemed necessary for the fetus are investigated.
Abstract: In a national survey, we investigated the scope and circumstances of court-ordered obstetrical procedures in cases in which the women had refused therapy deemed necessary for the fetus. We also solicited the opinions of leading obstetricians regarding such cases. Court orders have been obtained for cesarean sections in 11 states, for hospital detentions in 2 states, and for intrauterine transfusions in 1 state. Among 21 cases in which court orders were sought, the orders were obtained in 86 percent; in 88 percent of those cases, the orders were received within six hours. Eighty-one percent of the women involved were black, Asian, or Hispanic, 44 percent were unmarried, and 24 percent did not speak English as their primary language. All the women were treated in a teaching-hospital clinic or were receiving public assistance. No important maternal morbidity or mortality was reported. Forty-six percent of the heads of fellowship programs in maternal-fetal medicine thought that women who refused medical advice and thereby endangered the life of the fetus should be detained. Forty-seven percent supported court orders for procedures such as intrauterine transfusions. We conclude from these data that court-ordered obstetrical procedures represent an important and growing problem that evokes sharply divided responses from faculty members in obstetrics. Such procedures are based on dubious legal grounds, and they may have far-reaching implications for obstetrical practice and maternal and infant health.
•29 Mar 2016
TL;DR: In this article, a wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia is presented, arguing that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded.
Abstract: This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.