A federalism process for Cyprus: An american constitutional perspective on the Cyprus problem

Cyprus Review

Volumn 8, Issue 2, 1996, Pages 7-23

  Neisser, Eric ^a  

^a NONE

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EID: 0012254162     PISSN: 10152881     EISSN: 25478974     Source Type: Journal    
DOI: None     Document Type: Article

References (20)

1. Eric Neisser is a professor of constitutional law at Rutgers University Law School in Newark, New Jersey and author of Recapturing the Spirit: The Bill of Rights at 200. He was a Senior Fulbright Scholar in Cyprus in constitutional law from January to April 1996, affiliated with, and presenting a series of lectures at, lntercollege in Nicosia.
2. I am aware that some members of the Turkish Cypriot community do not like it to be referred to as a "minority" or a "minority community," because those terms are seen as undermining the key concept of "political equality." There is, of course, no dispute that, whatever the precise numbers, there are far fewer Turkish Cypriots than Greek Cypriots on the island. Reference to a numerical minority here reflects solely this demographic reality, not a political conclusion or preference on my part.
3. See, e.g., Sotiris Drakos, Cyprus: A Constitutional Motion for Mediation (1995)(presenting a comprehensive proposal for resolution of the Cyprus Problem based on the Swiss canton federation model).
4. Blatchford v. Native Village, 501 U.S. 775, 779 (1991).
5. Seminole Tribe, 116 S.Ct. at 1122, quoting Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
6. See, e.g., G. Codding, The Federal Government of Switzerland (1961).
7. I recognize that many of these questions have been expressly discussed, and tentatively resolved, in prior negotiations about a Cypriot federation. See, e.g., Set of Ideas on an Overall Framework Agreement on Cyprus (1992), Appendix 16 in Z. Necatigil, The Cyprus Question and The Turkish Position in International Law (2nd ed. 1993). I mention them both to highlight aspects of sovereignty and because my proposal for a very limited initial federal structure with aprocess for anevolving federalism would probably force the communities to review even some of the most basic points again.
8. For a period of time, some of the colonies and early states were far more homogeneous than they are in modern times. Thus, for example, the Pilgrims predominated for a long time in what became Massachusetts. Also, many northern and western states and territories were overwhelming white over the first century of the country, prior to the end of slavery, the northern migrations of African Americans, and the immigration influxes of Asians and Latin Americans. Even so, given the differing European immigrations and the differing religious groupings even among the English migrants, none of the American states have, since the Constitution's adoption, been as homogeneous as the two Cypriot communities are at the present time. See, e.g., David Potter, "Social Cohesion and the Crisis of Law," in American Law and the Constitutional Order: Historical Perspectives (L.Friedman & H. Scheiber eds., 1978).
9. Compare, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995)(striking down an affirmative action program in federal contracting and imposing the strictest constitutional review on all affirmative action programs) with Fullilove v. Klutznick, 448 U.S. 448 (1980)(upholding a short-term congressional contracting program with a fixed percentage of funds designated for minority contractors under a more lenient constitutional standard of review).
10. Shaw v. Reno, 509 U.S. 630 (1993).
11. Miller v. Johnson, 115 S.Ct. 2475 (1995);
12. Shaw v. Hunt, 116 S.Ct. 1894 (1996);
13. See, e.g., Bush v. Vera, 116 S.Ct. 1941 (1996);
14. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960)(invalidating an Alabama statute that had altered a city's boundaries from a square to an irregular 28-sided figure in order to remove almost all African American voters).
15. Set of Ideas, supra note 12, at 457-58 (providing, for example, that seventy percent of the lower legislative house seats would be Greek Cypriot and thirty percent Turkish Cypriot and that seven Ministers would be Greek Cypriot and three would be Turkish Cypriot).
16. See, e.g., Michael S. Michael, Cyprus Under the Common Agricultural Policy: The Impact Effect, 19 J. Econ. Studies 22 (1992).
17. The Fifth Amendment to the United States Constitution assures private property owners of "just compensation," to be determined, if necessary, by independent courts, for any "taking" of private property "for public use." U.S. Const. amend. V. Thus, in the United States, both the federal and the state governments, are free to take overprivate property at any time-as long as the taking is for a "public use" and the government pays "just" monetary compensation.
18. See, e.g., Oliver Richmond and James Ker-Lindsay, The Conflict Researcher and the Strategist: Theoretical Approaches to the Analysis of the Cyprus Problem, 7 Cyprus Rev. 35 (1995).
19. Gibbons v. Ogden, 22 U.S. 1 (1824).
20. Set of Ideas, in Z. Nectagil, supra note 12, at 459 (specifying that freedom of movement would be implemented immediately but that freedom of settlement and property wouldbe implemented only after the resettlement process arising from territorial adjustments).