Convention on the Prevention and Punishment of the Crime of Genocide

Can a constitutional amendment be unconstitutional? Prima facie, this seems like a paradox. This vexing issue has attracted increased attention in recent years. Whereas the definition of the nature of constitutional amendment power is among the most abstract questions of constitutional theory, the question of limits on constitutional amendments is not purely of academic interest. It has practical application; the issue has already been adjudicated in numerous countries and is likely to arise, sooner or later, in other countries as well. This issue of limits is a fundamental one and much could be gained from comparative study. This Article aims to trace the migration of limited amendment power and of judicial review of constitutional amendments through different jurisdictions and to paint a broad pattern of “constitutional behavior.” It appears that the global trend is moving towards accepting the idea of limitations - explicit or implicit - on constitutional amendment power. Bearing in mind the difficulties of borrowing (or transplanting) constitutional ideas from different jurisdictions into other legal cultures, this Article claims that limitations upon the amendment power is just one example of the larger phenomenon of the migration of legal ideas. At times, the notion of limited amendment power migrated intact into other jurisdictions, but on other occasions it also absorbed local content, primarily to acknowledge prior events and past experiences. The fact that this concept traveled across continents and entered different legal systems shows that borrowing a constitutional idea can be successful, even within very dissimilar legal systems. This comparative investigation into the origins and the migration of the idea of limits to the amending power will highlight the uniqueness of each legal system and unravel the conundrum of unconstitutional constitutional amendments itself.

Unconstitutional Constitutional Amendments - The Migration and Success of a Constitutional Idea

Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea

This paper takes a human rights approach to lesbian and gay oppression and critically explores the arguments used to oppose equality in the debates about the age of consent for sex between men. A thematic analysis of Hansard and newspaper reports produced in Britain during the 1990s showed that opponents of the amendment to equalise the age of consent countered with three key arguments laying claim to ethical principles overriding the principle of equality. These were: (1) Principles of right and wrong take precedence over equality; (2) Principles of democracy take precedence over equality; (3) Principles of care and protection take precedence over equality. Two additional arguments (the health risks of anal intercourse, and escalating demands for gay rights) are also outlined. Our findings are discussed with reference to debates on other lesbian and gay rights issues, and we consider the ways in which we might best counter these arguments.

/pdf/denying-equality-an-analysis-of-arguments-against-lowering-2fekj2ob1g.pdf

Denying equality: an analysis of arguments against lowering the age of consent for sex between men

Preface. Acknowledgements. Global Bioethics, Global Dialogue: Introduction J.T.L. Po-Wah. Morality, Universality, and Particularity: Rethinking the Role of Community in the Foundations of Bioethics H.T. Engelhardt, Jr. Part I: Community and Care: Lost Perspectives? Is Just Caring Possible? Challenge to Bioethics in the New Century J.T.L. Po-Wah. Living and Dying in a Post-traditional World Fr.T. Joseph. Part II: The (Im)Possibility of Global Bioethics. The Tension between Biomedical Technology and Confucian Values R.-Z. Qiu. Relational Paradigm in Bioethics H. Xinhe. The Ethics of Prenatal Screening and the Search for Global Bioethics G.K. Becker. Genetic Engineering and Social Justice: Towards a Global Bioethics? I. Holliday. Global Biomedicine, Human Dignity, and the Moral Justification of Political Power C. Delkeskamp-Hayes. The Reappraisal of the Foundations of Bioethics: A Confucian Perspective L.S. Chuen. Part III: Moral Dilemmas in Health Care. Self-ownership and its Implications for Bioethics Y.K. Por. Health Inequalities and Justice S. Marchand, D. Wikler. Managing Medical Information: The Moral Dilemmas in Postmodern Societies C.H. Mun, A. Fung. Stabilizing or Changing Identity? The Ethical Problem of Sex Reassignment Surgery as a Conflict among the Individual, Community, and Society K.W. Schmidt. Homosexuality and the Use of the Reproductive Technology S. Man-Hung Sze. The Domain of Parental Discretion in Treatment of Neonates: Beyond the Impasse Between a Sanctity-of-Life and Quality-of-Life Ethic G. Khushf. Ethics and Narrative in Evidence Based Medicine D.K.S. Au. Part IV: New Strategies, New Possibilities. Local Bioethical Discourse: Implications for Understanding Disease M.A.G. Cutter. Bioethics and Philosophy of Bioethics: A New Orientation C.-Y. Cheng. A New Possibility of Global Bioethics as an Intercultural Social Tuning Technology H.A. Sakamoto. Moral Theories vs. Moral Perspectives: The Need for a New Strategy for Bioethical Exploration R. Fan. Notes on Editor and Contributors. Index.

Cross-cultural perspectives on the (im)possibility of global bioethics

/pdf/can-a-constitutional-amendment-be-unconstitutional-3ngb42ofg8.pdf

Can a Constitutional Amendment Be Unconstitutional

Preface Introduction: A Word about Politics and Original Intent Part I: Theory 1. The Objects of Legal Privacy Analyzing Privacy Historical Antecedents Privacy in the Law Today How Courts Justify Decisions 2. The Concept of Legal Privacy Problems with the Current Definitions A Conceptual Methodology The Definition of Legal Privacy The Coverage-Protection Distinction 3. A Justification for Legal Privacy A Normative Methodology What a Privacy Justification Is Privacy and Autonomy Part II: Practice 4. Legal Epistemology and Privacy Dworkin's Interpretative Theory Mohr's Privacy Justification Hixon's Utilitarian Approach to Privacy 5. Applications Criteria for Dispute Resolutions The Openly Gay or Lesbian Teacher Gay and Lesbian Parenting and Marriage Surrogate Motherhood Privacy and AIDS Adult Consensual Sodomy Statutes The Justification of Abortion Computer Data Banks and Electronic Funds Transfer Services Pornography and Drugs in the Home Employer Drug and Polygraph Testing The Right to Die Epilogue: Autonomy: The Ultimate Question Conclusion Notes Selected Bibliography Index

The right to privacy : gays, lesbians, and the Constitution

This essay explores, in two parts, the problems of justifying civil rights legislation for gays, lesbians, and bisexuals. Part I shows that discrimination against gays and lesbians at least in respect to employment, housing, and public accommodations is an evil unsupported by ethical traditions in utilitarianism, rights theory, and communitarianism. It also shows that two theories, Kantian theory and natural law theory, which do support such discrimination on the claim that homoerotic behavior is universally or objectively immoral only do so because of a failure to make precise the concept of "natural" which underlies those theories. Part II argues that anti-discrimination legislation is both an appropriate and effective means to promote the idea that discrimination against lesbians and gays in respect to most employment, housing, and public accommodations is sufficiently injurious to both individuals and society that it should not be tolerated. The section also explains how such legislation might succeed practically in eliminating discrimination in these areas.

A Moral Justification for Gay and Lesbian Civil Rights Legislation

INTRODUCTION Recently, North Carolina, Kentucky, Florida, and Texas have either adopted, are considering adopting, or have failed to adopt statutes requiring all persons within the state to only use the public bathroom or locker room associated with their "biological sex at birth." (1) These efforts have given rise to cries of discrimination and persecution by transgender people. (2) The U.S. Departments of Justice and Education have responded with lawsuits challenging the validity of these laws under both Title VII of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. (3) However, these states are claiming that notwithstanding the Obama Administration's interpretation of the language of these federal statues, individual privacy and security justify sex segregated bathrooms and locker rooms. (4) This article will explore how persuasive these latter justifications really are after first presenting exactly what laws have been enacted or proposed, a brief history of transgender people in the United States, and the federal government's grounds for believing bathroom and locker room sex-segregation laws to be a form of sex discrimination. Part I will identify relevant provisions of the current North Carolina statute requiring sex-segregated bathroom and locker room use, as well as provisions of the proposed statutes in Kentucky, Florida (which, for the time being, is no longer in play), and Texas. Part II will provide a brief history of who transgender people in the United States are and why laws such as these may be devastating to their well-being. Part III will address the Title VII and Title IX claims likely to be raised by the Departments of Justice and Education in upcoming court cases against states having adopted sex-segregation laws. Part IV will review the merits of the alleged justifications of privacy and security that these states will rely on to attempt to defend their adoption of sex-segregated bathroom/locker room laws. A brief conclusion follows. I. SINGLE-SEX MULTIPLE OCCUPANCY BATHROOM AND CHANGING FACILITIES LAWS North Carolina's Public Facilities Privacy & Security Act was adopted by its legislature and signed by Governor Pat McCrory for the stated purpose of protecting the individual privacy and security of those using multiple occupancy bathrooms and changing facilities. (5) Under the provisions of this law, people in North Carolina are required to use in schools and public buildings the bathroom or locker room that corresponds to their "biological sex" as "stated on a person's birth certificate." (6) The law also forbids North Carolina counties and cities from requiring or mandating, by way of regulations or controls, a private contractor's employment practices or provision of "goods, services, or accommodations to any member of the public, as a condition for bidding on a contract or a qualification-based selection, except as otherwise required by State law." (7) In effect, this last provision ensures that no North Carolina city or county may refuse to contract with a private company that mandates its employees or the public at large to use, at any of its facilities, only the bathroom or changing room that corresponds to their "biological sex." This law forces transgender people in North Carolina, whose stated biological sex does not conform to their gender identity or who have a diagnosis of gender dysphoria, to use in public buildings the bathroom and locker room facilities of the gender they do not identify with, or to use a private single-use facility if available. Arguably, being forced to use a bathroom/locker room inconsistent with one's gender identity or to use a single-use facility, when others do not have to, can have devastating effects on the physical and psychological well-being of transgender people, who struggle for most of their lives with others telling them to conform to a gender identity with which they were not comfortable. …

Vincent J Samar

Papers

Can a Constitutional Amendment Be Unconstitutional

The right to privacy : gays, lesbians, and the Constitution

A Moral Justification for Gay and Lesbian Civil Rights Legislation

The Right to Privacy and the Right to Use the Bathroom Consistent with One’s Gender Identity

Just Society: A review of John Rawls, Political Liberalism - Political LiberalismJohn Rawls New York: Columbia University Press, 1993