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Abstract:
The narratives associated with a landmark constitutional case, including the socio-political struggles that give rise to the dispute and the resulting litigation, are an important, and overlooked, aspect of constitutional understanding. An examination of these narratives can elucidate circumstances that have been overlooked in the formalized articulation of constitutional norms. It can provide a more nuanced understanding of the conflict, and, in some instances, an altered interpretation of doctrine. Traditional legal education typically omits any substantial consideration of the external historical events that give rise to landmark cases. The omission of these external narratives may serve to distort the doctrinal complexity of major cases. This article demonstrates the significance of narrative by examining five stories describing a significant U.S. Supreme Court case, Pierce v. Society of Sisters. These stories illuminate the impact of contextual narrative upon constitutional meaning. The paper argues that contextual narrative should be incorporated into the teaching of constitutional doctrine to ensure a more accurate understanding of constitutional meaning. The article explores various methods of teaching Pierce to demonstrate the marked difference between the highly formalized analysis typical of conventional legal education and the multi-faceted legal, political, and social comprehension gained through contextual narrative.

legal education, constitutional doctrine, constitutional meaning, contextual narrative, socio-political

Abstract:
The population problem is as hard to define as it is to solve. This article discusses the history and problems of population regulation and analyzes the conflicts between present approaches to population policy and environmental sustainability. After describing the history and problems of population regulation theory, the article discusses various sustainability theories and their relationship to population policies. A human rights model is presented as a goal for future policy development, incorporating both human rights and sustainability values. By incorporating both human rights and sustainability values, this model illustrates how both the environment and individual rights can be protected within population control policies.

population, population regulation, population policy, population control, environment, sustainability, human rights

Abstract:
Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amends the Immigration and Nationality Act by specifically extending protection under U.S. asylum law to individuals subjected to involuntary abortion, sterilization, or other coercive population control programs. This amendment raises issues about the scope of reproductive rights violations which may establish eligibility for asylum. International law recognizes reproductive choice as a basic human right that includes the right of an individual to determine the number and spacing of children. Violation of this right can occur when a government limits reproduction or denies access to contraception or family planning services. To be consistent with these human rights principles, coercion under Section 601 should not be so narrowly defined as to be limited to actions such as forced abortion or sterilization. It should include any program that substantially prevents the exercise of reproductive choice.

This article examines which government practices should be considered coercive population control programs. It analyzes the international protection of reproductive rights and discusses how population control programs may violate reproductive rights. While the new law laudably authorizes grounds for asylum that were categorically denied by the INS and the courts prior to the amendment, the article argues that both the language and current application of Section 601 are inconsistent with human rights principles.

population, US Asylum, section 601, immigration, abortion, sterilization, reproductive rights, reproductive choice, population control, contraception, coercion, family planning

Abstract:
The 1994 Cairo Population Conference established a consensus that governmental population policies must be built on the cornerstones of human rights. Central to these rights is the principle of reproductive self-determination; individuals should be able to make informed choices about their reproductive activity, including the number and spacing of their children. This principle is of particular importance to women, who often lack control over their reproductive decision making. But population policies, utilitarian programs designed to manipulate birthrates to achieve demographic goals, rarely protect reproductive self-determination.

This article examines the dynamics of population policies and their effect on human rights. It analyzes the role of law in the formulation and implementation of population policies, particularly as it concerns the protection of women's reproductive rights. It argues that the law has been an ineffective mechanism for protecting women's reproductive rights because of legal and social marginalization or disregard of women's reproductive interests. The article begins by examining the theoretical tensions between utilitarian population theory and human rights principles. It then explores the conflict between women's rights and cultural relativism. The article concludes that legal norms alone are insufficient to protect reproductive rights in many societies; reproductive self determination will only become a reality in these cultures if the law serves also as an educator and motivator of social reforms.

Cairo Population Conference, population policy, human rights, reproductive rights, reproductive self-determination, cultural relativism

Abstract:
The controversy over the use of the initiative process to enact social policy began in the progressive era and remains heated today. Direct legislation eliminates the deliberative process of legislative and executive review, circumventing the checks and balances that define representative democracy. The absence of these checks and balances poses a high risk that voters will act on the basis of inaccurate or biased information. Appeals to voter prejudice can be a particularly potent and harmful strategy to agitate the majority against minority groups.

This article examines deception and discrimination in the initiative process by presenting a case study of one of the earliest and controversial initiatives, the Oregon School Bill. The School Bill mandated public education for all children, effectively destroying private, particularly Catholic, education. The challenge to Oregon’s compulsory public education law yielded a landmark U.S. Supreme Court decision, Pierce v. Society of Sisters. This article offers case-specific insight into how voters can be manipulated by misinformation and prejudice. It explores the tension between representative democracy and direct legislation, particularly how the initiative undermines the deliberative process. The article analyzes how voter ignorance, fear, and prejudice toward minority groups may taint the initiative process. Finally, the article examines legal solutions and recommends that the courts closely scrutinize direct legislation that harms historically disadvantaged groups.

Initiative, direct legislation, direct democracy, Pierce v. Society of Sisters, Guarantee Clause, representative democracy, compulsory public education, voter prejudice, constitutional law

Abstract:
Law derives in large part from tradition. Western tradition valued women primarily for their role in procreation. These cultural traditions influenced both the formulation of law and legal decision making. Tradition plays a very specific role today in the Supreme Court's analysis of reproductive autonomy for the Court looks to tradition to determine whether an unenumerated right is so rooted in the traditions and conscience of our people as to be deemed fundamental. This article argues that tradition is a flawed framework for analyzing women's reproductive rights because a tradition-based inquiry fails to address the gender discrimination that shaped legal and cultural practices. The traditional valuation of women as procreators evolved into laws promoting reproduction and authorizing state control over women's reproductive functions. Since these traditions are not normatively neutral, tradition-based analysis of reproductive regulation primarily serves to advance cultural stereotypes.

This article explores Western traditions concerning reproduction. It examines religion, philosophy, and politics to illuminate the cultural assumptions and biases about women and reproduction. It discusses how these traditions evolved into written law and analyzes deficiencies in reproductive fundamental rights analysis. The article concludes that reproductive regulation should be analyzed primarily as a question of gender equality.

Tradition, procreation, reproduction, reproductive rights, reproductive regulation, women, gender equality

Abstract:
This article examines a landmark constitutional law case, Pierce v. Society of Sisters. Pierce is a product of the post World War I era, when nativist sentiments and fears of communism created a culture that was hostile to immigrants and to ideas that were seen as anti-American. Assimilation of immigrants became a patriotic mission to protect national security and education became the vehicle for assimilation. In 1922, Oregon passed a law requiring all students to attend public school.

The Court of that era grappled with the massive political, economic, and social upheavals rendered by the war. The vast and rapid technological and social changes occurring throughout the country brought cases to the Court that pressed the Justices to address the proper balance between state control and individuality in a constitutional democracy. This focus on defining the limits of government power in a constitutional democracy illuminates Pierce, one of only two substantive due process cases from the Lochner era based on personal rather than economic liberties. The Court struck down the Oregon law because it unreasonably interfered with the liberty of parents to direct the upbringing and education of their children. This article examines Pierce in its historical context. Its thesis is that the parental rights protected in Pierce augment an opinion concerned primarily with whether state monopoly of education is permissible in a democracy. While Pierce is legitimately viewed as a seminal case for the constitutional protection of parental rights, the case provides far greater insight into fundamental attributes of democracy.

Pierce, Society of Sisters, World War I, communism, immigrant, national security, education, Lochner, Oregon, parental rights, democracy