Abstract This paper defines the doctrine of eclipse and its relationship to the Indian Constitution. The author points out that, by virtue of this doctrine, the legislature can simply revive an inconsistent pre-constitutional law by amending the Constitution. This results in legislative inertia. Thus, the paper concludes the doctrine largely benefits the executive and not the people.
Table of Contents:
Introduction
Nature and Scope
Research Questions
Doctrine of Eclipse
Applicability of Doctrine of Eclipse with regard to Post-Constitutional Laws
Article 13(1) is Not Retrospective
Distinction between Unconstitutionality from Lack of Legislative Competence and from Violation of Constitutional Limitations on Legislative Power
Distinctions between Article 13 (1) and 13 (2)
Supreme Court Decisions which point out the Distinctions between Articles 13 (1) and 13 (2) of the Constitution Distinction between Voidness in the case of Pre-Constitutional Law and Post-Constitutional Law
Amendment can Revive a Pre-Constitutional Law but not a Post-Constitutional Law Declared Invalid
A Critical Analysis of Doctrine of Eclipse
Conclusion
From the Paper "The amendment to the Constitution can revive pre-Constitutional laws if it removes the inconsistency associated with that law. This is by virtue of the application of doctrine of eclipse on pre-Constitutional laws which were not still born and would exist though eclipsed on account of the inconsistency to govern pre-existing matters. In the case of post-Constitution laws, they would be still born to the extent of the contravention. This would mean that the doctrine of eclipse is inapplicable in this case. There is no scope for the revival of a post-Constitutional law by an amendment of the Constitution."
State constitutions tend to show deviation from the structure of federal rule maintained by the U. S. Constitution. In the case of the Nevada State Co...
675 words (approx. 2.7 pages), 2 sources, 2005, $ 26.95
Abstract The paper explains how state constitutions tend to show deviation from the structure of federal rule maintained by the U. S. Constitution. The paper describes how, in the case of the Nevada State Constitution, there is ample evidence that this document sets forth a policy of law that is far more democratic in tone and in application than the constitution. The paper further discusses how there are strong similarities between the two documents, both, for example, stress the rights of the citizenry and even focus on issues such as the right to assemble and a citizen's ability to refuse to quarter other citizens in their homes upon order from the government.
From the Paper "It is generally understood that the United States is built upon the principles of democracy, in which the majority consensus of the citizens helps to define the shape of issues or elections. However, in assuming that the Constitution - the document upon which such practices are founded - is inherently democratic is only partially accurate. Indeed, it has been frequently argued that the U. S. Constitution is representative of the rule of law from a federation as opposed to a pure democracy; in a federation, elections occur among the majority of the citizenry but this process results in elected officials who then determine the direction of the country. In short, a federation transforms a democracy from the rule of the many back into the rule of the few, with the "few" in this sense being the elected officials selected through an elections process."
Explores constitutional issues in racial profiling and discrimination in the wake of 9/11. Examples of profiling are derived from general minority experiences and specifically Arab/Muslim discrimination after 9/11.
2,200 words (approx. 8.8 pages), 4 sources, 2001, $ 68.95
Abstract This paper presents a detailed examination of racial profiling. The writer addresses four scenarios and argues for or against their legal and moral foundation based on the 14th amendment of the United States Constitution. In addition to the writer's belief regarding each scenario, we are given key elements of the opposition's argument and the writer's rebuttal to that opposition.
From the paper:
"Following the attacks on America September 11, 2001, there were cries for revenge throughout the nation. Anyone who looked Muslim was endangered as Americans took their anger to the streets. Following the attack there were several instances in which pilots refused to fly planes until Muslim looking passengers were removed and angry residents threatened those who looked like one of "them". The initial rage died down and in its place we were given many new security measures that we have been told are for the good of national security. The measures boil down to legalized racial profiling in some cases. Racial profiling is not a new event. It has been around for many years. Racial profiling goes against everything the constitution of this nation stands for; yet in light of the attacks in New York, Americans are less vocal about it then they have been in the past. Now, instead of denouncing all profiling as unconstitutional and wrong, we find ourselves looking at individual profile scenarios and holding them against the constitution to see if we can slide them through. We have entered a new world since the attacks. It is a world in which we are trying to walk a much thinner line between protecting the safety of those who live here and protecting the constitution."
Tags: racism, profiling, 9/11, constitution, Blacks, Arab, Muslim
Abstract This paper looks at the origins and objectives of the European Union's Constitution. Some of its shortcomings are explored, and the complications and difficulties that have arisen as a result of the constitution are also studied. The paper also looks at the legal implications of creating a European Constitution with respect to implementation, the appeals process, and dispute resolution.
From the Paper "The civil justice system in the United Kingdom is based on the precedent of common law rather than the "code Napoleon" of France and other European countries. In many ways, this has made it extremely successful: Hernando de Soto and others have commented on how the nature of private property had first been enunciated properly in the English-speaking word, and how civil institutions such as consumer lending were soon to follow. To many, the English system is a model for the world. However, the current system has developed internal complexities, which make it unintelligible to the layman."
Abstract This paper explains that, in the ratification debate over the Constitution, Madison's perspective appears more persuasive because it is clear that his observations concerning selfish and ambitious human motivations and inherent character weaknesses are accurate. The author points out that Madison felt that the Constitution must address these issues and establish safeguards against them. The paper relates that protecting the citizenry from governmental abuses of power caused by ambition, political faction, and human motivations and weaknesses could only be achieved by the constitutional measures Madison supported.
From the Paper ""Gentlemen of this convention, I stand before you as an advocate of the Constitution, and submit to you that it must be ratified if this nation is to truly attain the ideals of freedom and self-government that we all fought for with such dedication during the War of Independence." A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. Such advice is still relevant, for precautions against government power is the only effective way to preserve the rights of citizens. (Madison) The separation of power established by the Constitution will preserve us from the danger of factions, for ambition must be made to counteract ambition."
Abstract The paper examines the nature of the constitutional debates between the Federalists and the anti-Federalists that led to the adoption of the US Constitution. The paper offers an understanding of the history both leading up to and during the period of debate. The paper relates that because of the debate that surrounded the document from the start, the terms of the Constitution are ambiguous, flexible and thus always open to debate.
From the Paper "The Constitution of the United States of America is perhaps the world's oldest written national constitution. Adopted on September 17, 1787, the Constitution is the result of a significant and heated debate between who have become known as Federalist and Anti-Federalist. It was largely due to the arguments and propaganda of these two groups that lead to the final form of the document that was adopted. This debate was far reaching in that it occurred physically both in the various forms of the constitutional conventions and in the streets and homes in the form of editorials."
Abstract The nature of the U.S. Constitution is another of these perennial debates. A product of the American Revolution, some historians regard it as evidence of the revolutionary nature of the new Republic. However, other historians argue that it was a reactionary document designed to mitigate political and social change in the wake of the severance of the connection to Great Britain. Was the Constitution an attempt to prevent internal disruption in the wake of international dispute? The following brief discussion will address this issue.
Abstract This paper reviews the ongoing public debate in the UK (United Kingdom) on whether or not the UK needs a written constitution. The author explains the advantages and disadvantages. The paper considers other areas of constitutional reform including establishing of an independent judicial.
From the Paper "...an assessment of the advantages and disadvantages of a written constitution for the United Kingdom together with conclusions as the whether the United Kingdom should adopt a written constitution. = The current public debate concerning the need or ..."
Abstract The following paper briefly adumbrates ten constitutional amendments this writer believes can safeguard individual rights in America. The paper looks at the constitutions of other lands to arrive at a better idea of what revisions will serve America best. The paper concludes that American problems need uniquely American solutions.
From the Paper "Proposing amendments to the United States Bill of Rights is a favorite activity of many Americans. With that in mind, the following paper will offer up ten amendments, in order of significance, aimed at bolstering individual rights. To perform this rather ardurous task, it is necessary - among other things - to speak with various individuals who are of voting age and of sound mind to gain their input into what amendments will most advance the cause of liberty and the pursuit of individual happiness. The paper will also review the constitutions of at least a handful of other nations with an eye towards determining which aspects of them, if any, may be worthy of incorporation into the revised Bill of Rights. Finally, this paper will conclude with a table that delineates each of the ten amendments and offers a brief explanation of the meaning and intent of each amendment."
Abstract The following paper outlines a number of constitutional issues pertaining to the United States' Constitution. Specifically the paper reviews some general interpretations vis-a-vis the separation of powers as well as the history of equal protection under the law as mandated by the fourteenth amendment. Finally the paper looks at the differing views of four significant legal minds as they grapple with the issue of genuine equality under the law.
From the Paper "Topics Pertaining to the United States Constitution: Separation of Powers, Equal Protection under the Law, and the Views of Justice Antonin Scalia et al. Part I: Separation of Powers The three departments of the United States Federal Government share power in various ways. The following paper will examine this and also examine how different views on the United States separation of powers have been articulated by various individuals and in various legal cases. To begin with, in a June, 1807 letter to George Hay, Jefferson argued that the three branches of American government were intended to be independent of one another. More specifically, Jefferson held that activities or responsibilities expressly granted to one branch of government by the constitution were not to become the purview of another branch of government (para.1). In drawing his letter to Hay to a close, Jefferson wrote that he was steadfastly opposed against any"
Abstract This paper summarizes the debate between the Federalists and Anti-federalists of the constitutional congress. It suggests some ongoing problems in American public life which demonstrate the main issues which drove that debate, far from being resolved during the constitution's ratification, continue to resonate in current events. This paper discusses the Ratification Debate and the major issues which drove the debate between the Federalists and the Anti-federalists: Distribution of power, protection of rights, limitations of institutions and the ongoing Relevance.
From the Paper "In the last few days of September in 1787, the Confederation Congress met to debate and construct a new Constitution of the United States. The document they wrote and sent for ratification to the thirteen states that made up the newly-formed country was intended to replace the Articles of Confederation that had ordered the nation since its inception. The nation was reaching a crisis point, as the experiment had been going poorly. Surprisingly, perhaps, the problem was not one of the many possible economic problems that new nations are likely to experience when reconstructing after a long and difficult war. As Gordon Wood (1969) argues, the general economy was running well and people felt comfortable and even prosperous (p. 395). Rather, the concerns that brought the nation's leading politicians together were primarily political. "
This paper discusses the political, economic and social conditions in America that created the need for a strong federal government in early America and led to the eventual ratification of the United States Constitution.
1,350 words (approx. 5.4 pages), 2 sources, 2006, $ 53.95
Abstract This paper explains that the Articles of Confederation allowed states the ability to create their own laws and govern citizens prior to the ratification of the constitution. The paper also discusses the weakness of such a system, pointing out that under it federal authority was very weak and failed to unify the states, regulate taxation or control commerce. In the years previous to the ratification of the US Constitution, the country was experiencing rebellion and the growing tensions and unrest in the states was creating a sense that the nation would experience destruction if action were not taken. The paper further explains that because of these conditions, the concept of altering the framework for the nation was proposed and supported by federalists who were all of the wealthiest Americans. These individuals contended that there had to be strong federal government that would serve as a universal body over the states and control how the nation functioned economically, militarily and through law.
Abstract This paper recounts the drafting, implementation, amendment, and eventual rejection of the Articles of Confederation. The paper states that its main failure was that it was aimed primarily to prevent usurpation of power by the government, rather than provide for effective governance. A more effective Constitution was drafted as a result, which reduced state sovereignty and allotted greater power to the central government. In summary, the paper contends that the Articles of Confederation reflected the fear of governmental usurpation of power and created a government so powerless it could not function, while the Constitution gave the new government the power it needed to function.
From the Paper "In Federalist # 51, James Madison argued that the government was structured to preserve liberty. No one branch could hold sway over the others, and judge, appointed by the other branches, would be selected for quality, not popularity. (Federalist # 51) By creating the checks and balances, the government could control public excesses, but could not itself usurp power. The legislature, the most dangerous branch, was the most checked. Meanwhile, the size of the nation would prevent mob rule, because factions would check one another. (Federalist # 51)"
Abstract The Constitution of Slavery is analyzed and examined including how it was effected in practice on the people living in the States where it was implemented. The process of moving from a slave culture towards equal rights is also looked into.
From the Paper "Although the Civil War period is commonly thought of as the time when the issue of slavery was addressed, the moral and ethical debate over slavery was already well underway by the time the United States Constitution was drafted in 1787 and then ratified in 1788. Eleven years prior to the ratification, Vermont had already amended its constitution and banned slavery. "
Tags: slavery, slave, constitution, ban, south, north, civil, war, america, state, states
Abstract This paper attempts to answer the question: How has the meaning of the U.S. Constitution been shaped by the personalities, philosophies, and composition of the members of the Supreme Court by comparing two judges with different philosophies of law and interpretation with examples of specific cases and their impact on the United States.
