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The article is devoted to the problems and perspectives of the theory of separation of powers. The general aspects of the theory of separation of powers are outlined. The authors say that the multiplicity of types of power and types of social norms and factors, that ensure them, shows that separation is inherent to the phenomenon of power. It was noted that the issue of separation of powers has an important theoretical and practical significance and is closely related to the classification of political regimes into totalitarian, authoritarian, democratic and liberal. It was emphasized that, contrary to the established stereotype, the separation of powers, in certain forms, existed long before the epoch of Ch.L. de Montesquieu. It is noted that the ideas of separation of powers long before J. Locke and Ch.L. de Montesquieu was also expressed by Aristotle and Marsilius of Padua. It was substantiated that, in fact, the separation of powers has existed in some forms since the very beginnings of statehood. So, the theory of the separation of powers does not arise, but is only actualized in the XVII-XVIII centuries in connection with the struggle of the bourgeoisie against absolutism and feudal-clerical orders. It was noted that existence of the separation of powers for a long time before the period of the bourgeois society says that the separation of powers, as such, does not protect society from slavery and serfdom, arbitrariness and tyranny, inquisition and oppression, but, on the contrary, can increase the number of tyrants, independent of each other. The authors say that the separation of powers into the legislative, executive and judicial branches does not protect society from tyranny and usurpation of power by one party, while the incompleteness of the separation of powers (in particular, in the countries of the Anglo-Saxon legal family) does not turn the state into a tyranny. The authors pay attention to the critical view on the separation of powers in the works of J. Bodin, T. Hobbes, G.F. Szerszeniewicz, who say that the real separation of powers is dangerous to the unity of the state. It was emphasized that the theory of separation of powers contradicts the basic characteristics of the state sovereignty, defined by J. Bodin, because if the power is limited and separated into several branches, then it cannot be unified, supreme, absolute and permanent. The historical experience of different riots, rebellions and civil wars, that confirms the validity of the mentioned concerns, was provided. It was noted that the separation of powers in the state can have only a functional nature. It was noted that excessive separation of powers can paralyze state management or significantly complicate the system of state authorities and intensify the struggle between them, which will contribute to the establishment of a dictatorship. The authors support the position of G.F. Szerszeniewicz that the «legal self-limitation of the state» is a fiction and indicate that, theoretically, the limitation of the state by law is most likely in the states of the Anglo-Saxon, religious or traditional legal family, where the legislation, created by the state, is not the main source of law. Following B. Constant, it was stated that, in fact, the number of branches of power in the state is much greater than 3, and it was noted that, in particular, in modern Ukraine, we can talk about 9 branches of government, which creates the need to rethink the classical postulates of the theory of the separation of powers and the mechanism of checks and balances, as well as the necessity of expansion and addition of the typology of political regimes, etc. [ABSTRACT FROM AUTHOR]

The article discusses the history of slavery and antislavery sentiments in the Hispanic world, particularly in Mexico and Texas, from 1789 to 1827. It highlights the efforts of various individuals and groups to abolish slavery, showing a shift towards antislavery sentiments among Mexican political elites. The text explores the complexities of the institution of slavery, the regulations surrounding it, and the eventual abolition of slavery in Mexico and Texas. The article emphasizes the ideological support for abolition and the impact of these measures on the relationship between Texas and the rest of Mexico. [Extracted from the article]

There is a controversy between the application of the principle of state sovereignty and the principle of non-refoulement regarding the entry of Rohingya refugees into Indonesia during the COVID-19 pandemic. The results show that the COVID-19 pandemic is a global threat to human security, regardless of citizenship status. Thus, everyone needs protection and guarantees of human rights, including refugees. Even though Indonesia is not obliged to accept refugees because it has not ratified the 1951 Refugee Convention and its 1967 Protocol, and immigration is tightened to prevent the spread of the COVID-19 pandemic, Indonesia continues to do so. Indonesia's policy justification is based on its interpretation of state sovereignty as a humanitarian and non-discriminatory protection authority. [ABSTRACT FROM AUTHOR]

The relations of production in Deep South regions like the Mississippi Delta require a high degree of control over race and class configurations. While the overt, de jure White supremacy that marked the post-Reconstruction era allowed for effective repression of dissent, the promise of federal intervention and grassroots organizing during the years of the civil rights movement required White elites to recalibrate methods of control. By integrating theories of racialization of space, internal colonialism, and Althusser's (2006) notion of the ideological state apparatus, I suggest that this transition from overt to implicit control was accomplished by creating a culture of neighborly surveillance in which everyday Whites were deputized to surveil and report on civil rights organizing at the grassroots level. By neighborly surveillance, I refer to surveillance between and amongst private citizens enacted outside the purview of the formal state but in the interest of the powerful elite who control the state. I document this process through analysis of the archives of the Mississippi State Sovereignty Commission, an official state agency tasked with spying on and counteracting civil rights activity. These records demonstrate the extent to which non-state actors assumed the roles originally exercised by the de jure Jim Crow regime. Beyond augmenting understandings of the civil rights movement-era US South, this article contributes analytical insights to social and ideological transitions in other post-colonial, post-authoritarian spatial contexts. [ABSTRACT FROM AUTHOR]

Scholars have found that, despite a split on the burden of proof for qualified immunity, courts agreed that defendants must bear the burden of pleading to raise qualified immunity as a defense. This Article is the first to find that, over the past decade, this established consensus has been disrupted, culminating in a fresh circuit split. This Article investigates twelve Federal Courts of Appeals' qualified immunity rulings on 42 U.S.C. § 1983 and finds that six have required plaintiffs to anticipate defendants' qualified immunity arguments at the pleading stage, essentially treating the negating of qualified immunity as an element of § 1983. This Article criticizes this approach, as it distorts the rule-of-law value of the Federal Rules of Civil Procedure, and it cannot be reconciled with the statutory text and the original intent of the forty-second Congress in enacting the Civil Rights Act of 1871. This new circuit split should not be understood as merely a procedural split regarding the pleading burden. Courts often take advantage of procedural law's elusive nature and use it as a veil to shield judicial activism. This circuit split is another example. Behind the veil of the pleading allocation is a clear policy agenda: anti-civil rights and unconditionally pro-law enforcement. Yet, one subtle, albeit salient, theoretical strand remains underexplored: the undertones of states' rights embedded within the contemporary qualified immunity jurisprudence. Both the Rehnquist and Roberts Courts exhibited a predilection for interpreting the objective knowledge test in a manner favorable to law enforcement, leading to a predicament the Reconstruction Congress once grappled with: the enforceability of a federal right today often hinges upon a state actor's acknowledgment of that right. Such an outcome, far from being serendipitous, resonates with the Court's overt pro-states' rights disposition on many civil rights matters. Thus, the contemporary qualified immunity jurisprudence reflects a departure from the vision of the Reconstruction Congress, which envisioned federal courts as guardians of civil rights. The prevailing sentiment of the Court suggests a reimagining of a new role for federal courts: guardians of states' rights. [ABSTRACT FROM AUTHOR]

This article briefly identifies the aspects of public international law related to the Catalan secession process, bearing in mind that Spain is a constitutional social and democratic state governed by the rule of law and a member of both the European Union (EU) and the Council of Europe (CoE). Over 6 years ago, on 27 October 2017, the regional Catalan Parliament proclaimed the independence of the Autonomous Community of Catalonia. From the start, the most recondite stratum of the Catalan pro-independence strategy has consistently invoked international law considerations with no real basis. Here we explain why. First, given the function of state sovereignty (today humanized and, in the context of the EU and CoE, democratized), under international law, these events can only be classified as a secession process (stricto sensu), that is, a revolutionary act in the constitutional order of the state of Spain with undertones that are far from peaceful. Second, we address the facet of the Catalan pro-secession strategy – typical of populist policies today – consisting of abusing terms and concepts, a language policy that, in our view, was and still is intended to win the minds of both the Catalan population and any other uninformed external observers. Finally, we examine how statehood is acquired under international law and its relationship to the 2017 declaration of Catalan independence and the present-day situation. [ABSTRACT FROM AUTHOR]

Under the Virginia Constitution of 1902, for a half-century and more, a tiny electorate ruled over a White supremacist regime, one that proved effective at suppressing dissent at home and deflecting intervention from without. Key policies long kept in place in Virginia during that era included the "one-drop" rule of Black racial identity, a ban on marriages deemed "interracial" (one party, and only one, being "White"), and a system of state-supported schools kept categorically segregated. Leon M. Bazile, a representative--in fact leading--figure from this time, promoted all three policies. Over time, he and his counterparts found themselves and those policies increasingly challenged, especially by Black Virginians and federal authority. Much of this article derives from opinions Bazile authored as a local judge on matters of race and law with regard to schools or marriage: (1) in June 1955, after Brown v. Board of Education, in a case regarding Hanover County school bonds in a new era of mandated desegregation and (2) in January 1965 after Mildred and Richard Loving challenged the sentences imposed on them in January 1959 for their interracial marriage. Leon Bazile highlights the constellation of ideas and values and institutions and power--the entire Jim Crow complex--that the Black Freedom Struggle in Virginia was up against in the 1950s and 1960s. [ABSTRACT FROM AUTHOR]

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States' preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied "structural waiver" of their sovereign immunity in the "plan of the Convention" whenever such immunity would "thwart" or "frustrate" the purpose underlying a congressional power that is "complete in itself." The Court's new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution "aims only at a partial union or consolidation," "the whole tenor of the instrument" requires adherence to "the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor." Under this rule, the "plan of the Convention"--properly understood--divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court's new approach disregards this fundamental rule and thus the Constitution itself. [ABSTRACT FROM AUTHOR]

Geographers have been central to identifying and exploring the shifting spatialities of border enforcement and how different enforcement strategies alter the geography of state sovereignty. Migration-related public information campaigns (PICs) are one strategy that has received increasing attention from geographers and social scientists more broadly in recent years. Although existing research examines the sites and spaces where PICs are distributed, as well as the affective content of their messaging, little research has examined the development of campaigns and the transnational connections that enable their deployment. This article draws on work in the fields of carceral circuitry and transnational enforcement networks to expand our understanding of affective governmentality as a transnational strategy of border governance. Based on data collected as part of a large-scale comparative study of the use of PICs by the U.S. and Australian governments, we argue that this form of affective governmentality relies on transnational circuits through which people, money, and knowledge move to enable the development and circulation of affective messaging. In doing so, we develop the concept of transnational affective circuitry to refer to the often contingent, temporary relations and connections that enable PICs to operate as a form of transnational affective governmentality aimed at hindering unauthorized migration. Our analysis illustrates the transnational connections that enable increasingly expansive and creative forms of border enforcement to emerge while also expanding the scope of examinations of affective governmentality to attend to the relations that undergird and enable this form of transnational governance. [ABSTRACT FROM AUTHOR]

Conservatorships are restrictive arrangements that must be reserved for people with severe intellectual and/or developmental disabilities. However, California probate courts unnecessarily impose conservatorships and forego less restrictive alternatives for the sake of administrative convenience. While AB 1194 will ameliorate California's paternalistic conservatorship system, this Note advocates for requiring courts to appoint counsel to all conservatees and proposed conservatees in every conservatorship proceeding, and to enact conservatorships only after proving less restrictive methods are insufficient. Humans--regardless of their dis/ability--deserve to age with dignity in a conservateecentric system that does not violate their constitutional, federal, and state rights. [ABSTRACT FROM AUTHOR]

Abuse of physician prescribed opioids contributes to health and economic burdens associated with dependency, overdose, and death. Since the 1900s, the United States (U.S.) Congress has legislated use and misuse of controlled substances. Under the U.S. Constitution, states developed prescription drug monitoring programs (PDMPs) that determine how the program is managed, what data to track, and what information to share with other states. Lack of a standard data set that allows providers to see prescribing data for designated controlled substances across state lines, limits benefits of state PDMPs. A federal PDMP with a standard minimal set of variables shared across states could enhance patient care. States would exercise their police powers while sharing standard data to decrease adverse consequences of the opioid epidemic. [ABSTRACT FROM AUTHOR]

This document explores the application of Section 230(e) of the Communications Decency Act to state intellectual property claims, specifically the right of publicity. It discusses the jurisdictional split among different circuits regarding the interpretation of Section 230(e) and its carve-out exception. The document also examines the implications for non-domiciliary plaintiffs and the different types of state statutes governing the right of publicity for such plaintiffs. It suggests that a uniform federal right of publicity statute would be the best solution to ensure equal protection across all states. The document concludes by mentioning the possibility of a Supreme Court opinion in 2023 that could expand the carve-out exception for intellectual property under Section 230. [Extracted from the article]

The US Supreme Court's decision in Dobbs v. Jackson Women's Health ended the federal right to an abortion, first pronounced in the 1973 case Roe v. Wade. Dobbs has immediate implications for American women, but it also exposes a growing hostility by the court to the doctrine of 'substantive due process' on which many other federal rights rely. This article argues that the court's weakening of substantive due process is a direct challenge to the constitutional transformation wrought by the Fourteenth Amendment following the Civil War. The amendment asserted a national standard of fundamental rights, profoundly rebalancing power away from the states. Should the Supreme Court extend the logic of Dobbs, the national basis for many substantive due process rights will be removed. The court is reviving a kind of states' rights constitutional thinking hitherto unseen by the current generation of Americans. [ABSTRACT FROM AUTHOR]

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anti-commandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment's Due Process Clause. We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state law without unlawfully commandeering the states' executive or legislative branches. Congress's power to compel state courts to apply federal law is long established and beyond question. Yet even if some ICWA provisions violated the Tenth Amendment, we argue that Section 5 of the Fourteenth Amendment sufficiently authorizes Congress's enactment of ICWA so as to defeat the anti-commandeering concerns. Strangely, no party ever invoked Congress's power under Section 5 of the Fourteenth Amendment to assess its constitutionality. ICWA seems like an obvious candidate for analysis under Congress's Section 5 enforcement powers. States routinely discriminate against American Indian families on the basis of their race and ancestry (and their religion and culture), and ICWA is designed to remedy the abuses of state courts and agencies. We further have no doubt that the state legislatures that adopted ICWA in whole, in part, or as modified also possessed the power to do so, even in the event the Supreme Court holds all or portions of ICWA unconstitutional. [ABSTRACT FROM AUTHOR]

For Attorney General Wayne Stenehjem: On Friday, January 28, 2022, North Dakota and our nation lost a patriot who fought for the cause of states' rights and cooperative federalism. His work in the courtroom and on North Dakota's Industrial Commission was monumental in positioning the state to be an energy powerhouse while being a steward of the environment. Wayne was also instrumental in procuring the historic stay of the Clean Power Plan from the U.S. Supreme Court. He leaves behind an incredible legacy as the state's longest-serving attorney general and a roadmap for cooperative federalism in environmental policy. Attorney General Stenehjem's servant leadership over the past four decades is woven into the battles, triumphs, and solutions discussed in this piece. God bless his memory. [ABSTRACT FROM AUTHOR]

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This Essay examines how empire invisibly perpetuates itself "through status manipulation." "Status" refers to formal polity-person and polity-place relationships, perceived to be well-defined, pre-established, unchanging, and consequential. Such relationships are envisioned as automatically creating rights and powers. as well as obligations, detriments, and exclusions. The gap between the perceived fixity of status and its actual malleability gapes wide in the case of U.S. empire. The ambiguity is the result of choices by U.S. empire builders. "Manipulation" places the emphasis on this intentionality. It also describes the misdirection by which changes to status and the changeability of status sustain colonialism while hiding it from view. The U.S. empire dangles sovereignty before people in some of its colonies. In others, it strings people along in their beliefs that colonial sovereignty already exists. Doing so divides, frustrates, and seduces anti-colonialists. Like parched and starved Tantalus. whose fruit and water are always just beyond reach, inhabitants of the colonies endure degraded statuses that are tantalizingly close to a redemption that never arrives. Studies of the smallest and largest populated U.S. territories, American Samoa and Puerto Rico, illuminate the mechanics. This Essay concludes with a recommendation: Academic critics of colonialism should not allow the uncertainty that status manipulation produces to induce their silence. They should instead speak carefully, listen hard, recognize their errors and fallibility, and acknowledge and correct their mistakes. [ABSTRACT FROM AUTHOR]

The article offers information on the doctrine of mootness in the U.S. Topics mentioned include the exceptions of mootness, the principles of state sovereignty and its application in the mootness doctrine, and the analysis of several ways used by federal courts to apply the voluntary cessation exception to public defendants.

This paper analyzes legislative debate over Alabama's Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB56). Taxpayers and citizens are colorblind legal categories, but the debate associated "Hispanics" with a history of racism in and beyond the state. I use three methods to analyze the debate. Content analysis identify explicit references to "Hispanics". Second, I analyze legislators' values, attitudes and beliefs. Finally, I use discourse analysis to understand how Black and white legislators raised different concerns as they remembered their own experiences and the state's racial history. These analyses indicate that legislators crafted a relational conception of responsibility that distinguished who should be in Alabama and, by extension, who had a right to citizenship and national inclusion. These debates trace to long-standing struggles between states and the federal government to determine citizenship. I conclude HB 56 reproduces legal definitions of difference that promote racial exclusion. [ABSTRACT FROM AUTHOR]

The article focuses on Indian Child Welfare Act of 1978 (ICWA) was passed as a reparative response to the forced removal of Native American children nationwide from their families and placement into the adoption and foster care systems. It mentions Tenth Amendment's anti-commandeering doctrine protects states' rights by prohibiting the federal government from "commandeering" state officials. It also mentions exception for certain statutes passed under the Commerce Clause.

Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of "dignity" in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustrations. Part V lists other sites of accommodation and briefly discusses how one might use the public/private distinction despite its socially constructed character. [ABSTRACT FROM AUTHOR]

The article examines the approaches of the U.S. Supreme Court to waivers of state sovereign immunity and criminal constitutional protections. Topics discussed include the requirement of the Court that constitutional waivers must meet the voluntariness and knowingness conditions in the case Johnson v. Zerbst, the double standard established by the Court for criminal defendants and states, and the basis of the waiver jurisprudence of the Court.

The COVID-19 pandemic is an unprecedented public health crisis that has prompted an unprecedented response. Drastic and previously unthinkable steps have been taken to "flatten the curve" and avoid overwhelming our health systems. In the absence of a coordinated national response to the crisis, the pandemic has underscored both the promise and limits of the Tenth Amendment. As state and local actors have scrambled to adopt policies to protect their residents and minimize the loss of life, the result has been a patchwork of advisories and orders that reveal stark regional disparities and some confounding inconsistencies. The reliance on state and local actors has produced many innovative programs and novel attempts at regional coordination, but has also led to direct competition between and among jurisdictions as they vie for desperately needed resources. Moreover, it has elevated the friction between the federal government and state and local leaders to alarming levels. This Article examines the role of federalism in the early days of the COVID-19 pandemic in the United States. It explores the dangers that arise when disaster relief is politicized and proposes failsafe mechanisms to prevent key institutions from abdicating their responsibility to the American people. The first section reviews our current preparedness and response policy, which is grounded on a strong vision of cooperative federalism where a response is federally supported, state managed, and locally executed. The second section uses the lens of comparative institutional analysis to evaluate the shortcomings of this approach, specifically in the context of pandemic planning. By addressing three core institutional considerations--competency, political responsiveness, and stability--this Article maps out potential gaps that have the potential to compromise response efforts. The third section discusses failsafe provisions to ensure that disaster relief does not fall victim to partisan wrangling. A brief conclusion notes that the reliance on state and local actors in this pandemic has been a pragmatic, but also imperfect, institutional choice because state and local level initiatives are by their nature partial and porous. They are necessarily hampered by the lack of uniformity and certainty that could come from a federal pandemic response, and, unfortunately, they are ill-suited to stop a novel virus in search of its next host. [ABSTRACT FROM AUTHOR]

The devastating toll of gun violence has given rise to hundreds of lawsuits seeking justice on behalf of victims and their families. A significant number of challenges against gun companies, however, are blocked by courts' broad reading of the Protection of Lawful Commerce in Arms Act (PLCAA) — a federal statute often interpreted to shield the gun industry from civil liability. This article reexamines PLCAA in light of the Supreme Court's recent federalism caselaw, which counsels courts to narrowly construe federal laws that could otherwise upset the balance of power between states and the federal government. Since PLCAA infringes on traditional areas of state authority, the Supreme Court's federalism jurisprudence requires lower courts to interpret PLCAA narrowly, to not bar states from imposing negligence, nuisance, product liability, or other common law liability on gun companies. Reading PLCAA in line with federalism principles would preserve states' traditional authority over their civil justice laws, and enable gun violence victims, and their families, to hold gun companies responsible for wrongdoing. [ABSTRACT FROM AUTHOR]

The article focuses on decision of U.S. Supreme Court in the cases such as Fletcher v. Peck and Whitney v. California. Topics discussed include ratification of the Eleventh Amendment, which has since spawned its own tale of movement and counter movement; issues related to freedom of speech and sensitiveness to state rights and generally cautious in his affirmations of federal power.

The article addresses the background and historical context of the people as used in the Tenth Amendment to the U.S. Constitution. Topics discussed include the use of corpus methodology for analyzing this research question; comparative analysis of the words people and citizens; and Bill of Rights of the U.S. citizens.