In this article I review the Supreme Court’s current use of its major questions doctrine to see if the justifications commonly offered for its existence can explain its current use. In the process of doing so, I examine what the doctrine is about, how it came into existence and how the Court has applied it, especially in context to two recent cases, West Virginia v. EPA and Biden v. Nebraska. As both of these cases implicate the regulatory state, I place (...) the primary focus of this article on how the doctrine should apply in context to judicial evaluation of the regulatory state. In so doing, I discover that the Court’s current reliance on constitutional separation of powers and checks and balances analyses seem too narrow both with respect to the concerns of the founding generation but also, and perhaps more importantly, to the Constitution’s goals for the kind of government it sought to establish going into the future. (shrink)

A central question that arises when interpreting the U.S. Constitution is which theory of interpretation is the best? In his recent book, “How to Interpret the Constitution,” Cass Sunstein reviews various theories of constitutional interpretation currently in vogue and then offers what he believes would be the best approach going forward. In this Article, I want to take up a more basic question presupposed by the very idea of a theory of interpretation. That is, whether it is even possible to (...) arrive at more than a provisional understanding of what would be the best interpretation in any given area of study, including constitutional law. That said, I do believe some of the interpretations suggested by Cass Sunstein and elsewhere by myself and others to be more persuasive than most others, even if only partially so. For, as Sunstein himself points out, no theory seems perfect to figure out the Constitution’s meaning in every possible world in which we could imagine it to exist. So, we best just focus on our own world or what we take to matter in our world. In keeping with this idea, I plan to begin by looking first at how we might interpret the world around us based on our past experiences by considering a somewhat imaginative recent experience of my own. Next, I consider some recent studies in the neurosciences and a previous but highly influential article by the philosopher Donald Davidson concerning conceptual schemes and whether we could ever hope to make any sense of a scheme radically different from our own. Here it should be pointed out that I will use the word “scheme” when referring to a very broad system of thought for which there may not be much outside, versus when I use the word “framework,” as referencing something far narrower than a whole system of thought, even if what is referenced might purport to be a significant part of a still larger system. My goal is to eventually adopt John Rawls’ public reason method to separate out non-workable systems of thought as might be part of a particular religious or philosophical tradition that cannot be easily tied to any other system of thought easily imagined within a pluralistic society. I plan to do this by relating how Rawls’ public reason might allow for the creation of a moral interpretation of the Constitution adopting the moral theory of Alan Gewirth. The latter I adopt because its grounding does not presuppose any prior moral or religious framework. I then apply that interpretative method to five cases Sunstein believes are fixed points in our current constitutional understanding. In short, I plan to isolate out an area of human rights where even very different understandings of the world might be able to meet, while acknowledging that there will still be other areas that simply evade any common connection. I hope what I offer here to be of help for a theory of constitutional interpretation that focuses on morality, without having to compete with various religious frameworks going forward. (shrink)

The Lumad struggle in the Philippines, embodied in its various indigenous peoples (IPs), is still situated and differentiated from modern understandings of their plight. Agamben notes that the notion of ‘people’ is always political and is inherent in its underlying poverty, disinheritance, and exclusion. As such, the struggle is a struggle that concerns a progression of freedom from these conditions. Going over such conditions means that one shifts the focus from the socio-political and eventually reveals the ontological facet of such (...) knowledge to reveal the epistemic formation of the truth of their experience. It is then the concern of this paper to expose the concept of freedom as a vital indigenous knowledge from the Mamanwa of Basey, Samar. Using philosophical sagacity as a valid indigenous method, we interview ConchingCabadungga, one of the elders of the tribe, to help us understand how the Mamanwa conceive freedom in the various ways it may be specifically and geographically positioned apart from other indigenous studies. The paper contextualizes the diasporic element and the futuristic component of such freedom within the trajectory of liberation. The Mamanwa subverts the conception of freedom as a form of return to old ways and radically informs of a new way of seeing them as a ‘people.’ It supports recent studies on their literature that recommend the development of their livelihood rather than a formulaic solution of sending them back to where they were. The settlement in Basey changes their identification as a ‘forest people’ into a more radical identity. (shrink)

The aim of the study is to develop theoretic and methodological recommendations and practical activities for the positive social, managerial, organizational and economic development of historical and cultural tourist destinations. In theoretical terms: the role of historical and cultural tourist destination in the development of the region has been established; the historical and cultural tourist destinations have been identified; the author’s classification of historical and cultural tourist destinations has been developed basing tourist visiting activeness; the author’s methodological approach to the (...) diagnosis and creating tools for development of historical and cultural tourist destinations, comprehensively taking into account resource and factor components, has been presented. In practical terms: variations of the activities aimed at the positive development of historical and cultural tourist destinations have been proposed; the description of measures aimed at the creation of a historical and cultural complex on the example of the designed historical and cultural complex “Stara Samar” has been given. The results of the study are applicable for a wide range of historical and cultural tourist attractions: territories, landscapes and elements of landscapes, historical settlements, parks, film studios, historical and cultural heritage sites, history and culture monuments, burial sites, places of worship, sites of social cultural infrastructure. The author’s recommendations provide obtaining commercial results and ensuring a social and cultural effect for businessmen, managers, local communities in the management of existing or in the creation of new historical and cultural tourist destinations. (shrink)

The Mamanuas of Basey, Samar have been in an itinerant state since the 1950s. Their indigenous experience can be capped in the term ‘diaspora,’ which pictures their plight as dispersive habituation, moving from town to town away from their homeland. In a recent study which this paper hinges upon, the concept of diaspora can no longer work and is argued to imperatively function as a vanishing mediator so that indigeneity must come to mean as a constant identity of becoming. (...) Following from such a theoretical lens, this paper delves again into the concept of ‘diaspora’ in the Mamanuan indigenous experience to argue further that its act of mediating functions as performative indigeneity. To do this, the paper runs in three parts: first, it plots the Mamanuan diaspora experience; second, it briefly reiterates the core argument of diaspora as vanishing mediator; and finally, it theorizes on a concept of what Judith Butler calls ‘performative indigeneity’ that takes its form from the mediation of an indigenous diaspora experience. (shrink)

Ito ay pag-aaral sa ibat-ibang form ng nawn preys sa isla ng Biri, Northern Samar. Ang balidasyon, muling pagsusuri, at pag-aanalisa sa mga datos ay ginawa mismo ng mananaliksik bilang taal na mananalita ng Biri-Waray. Inilimita lamang ang pagsusuring ito sa mga fityur at istraktyur ng nawn at mga konstityuwent na bumubuo sa nawn preys sa Biri-Waray. Ang analisis sa pag-aaral na ito ay ibinatay lamang mula sa nakalap na datos mula sa siyam na informant na nagmula sa walong (...) (8) barangay (Poblacion, Sto. Nino, Progress, Pio Del Pilar, Causwagan, MacArthur, San Pedro, at San Antonio) ng munisipalidad ng Biri. Batay sa ginawang pagsusuri, ang NP sa Biri-Waray ay isang preys na maaaring: (1) binubuo ng marker, pronawn, kwantifayer at adjektiv na kumakatawan bilang hed ng nawn, at (2) binubuo ng nawn bilang hed at sinusundan ng mga konstityuwent na nagsisilbing modefayer. May mga form ang NP sa Biri-Waray na binubuo ng mga marker at nawn na kung saan ang marker ang nagpapakilala sa gamit at relasyon sa iba pang mga konstityuwent sa loob ng sentens. May kaibahan ang mga form ng NP ng Biri-Waray sa wikang Tagalog at iba pang mga Bisayan na mga dayalekto kapag binubuo ang NP ng posesiv pronawn + nawn (possessed) dahil hindi nagyayari ang pagkakabit ng ligatyur bilang pang-ugnay. May mga NP rin sa Biri-Waray na nabubuo sa pamamagitan ng relatibisasyon. Sa pamamagitan nito, nangyayari ang pagkatanggal sa nawn na minomodify ng predikeyt na hindi nawn at relativizer na at ang predikeyt na hindi nawn ang sumusunod sa nominativ marker an ‘ang’. Ang pag aaral na ito ay nakitang kahalagahan ng pagsusuri na magagabayan higit lalo na ang mga hindi taal na mananalita ng Biri-Waray sa pag-unawa sa gramatikal na istukrtura ng naturang wika. (shrink)