Constitutional History Research Articles

Early Delegations of Federal Powers

Conservatives have long tried to eviscerate federal administrative law by divining an implicit constitutional doctrine forbidding Congress to delegate its legislative powers. Contemporary originalists continue the effort, arguing that the original meaning of the Constitution includes this doctrine despite its absence from the document’s text. In response, critics have begun to show that early American constitutional history and theory support contemporary administrative law either as a valid delegation of legislative power to the executive branch or as the executive branch executing a statutory directive (or both). This Article expands on that response and critiques standard originalist arguments for a nondelegation doctrine. It demonstrates that early congressional statutes delegated federal powers to a broad group of actors including private experts acting alone, private experts acting with judicial or executive oversight, and non-federal authorities in addition to federal executive officials. Statutory guidance for exercising the delegated powers was nonexistent, aspirational, or limited to general restrictions. The delegations included areas demanding expertise or flexible decision-making and required the delegate to balance risks against economic costs. They addressed some of the most critical subjects for the nation’s early government: race, shipping, and the public fisc. A 1790 statute, for example, protected the health and safety of sailors on foreign voyages. It specified minimum requirements for the types, amounts, and storage of food and water for every sailor. It also provided that each American ship of a certain size and crew be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled. Food, water, and medicines have costs, of course. Congress could have balanced the costs of medicines to shipowners against the risks to sailors of illness or death at sea. It could have specified minimum required medicines and their proper administration just as it did minimum provisions and their storage. But Congress did not. Instead, it delegated to unelected medical experts the power to evaluate risks and benefits and to impose obligations on private American shipowners without providing any guidance on the types of medicines to include or their administration. The use of experts and administrative law are well within the Constitution’s constraints on the federal government. Conservatives who oppose this exercise of federal power may always do so in Congress or through living constitutional arguments. But they cannot rely on history to claim that the “original meaning” of the Constitution includes a nondelegation doctrine.

Managerial Capitalism and White-Collar Professions: Social Mobility in Australia’s Corporate Elite

This article considers the interdependence of managerial capitalism with the historical constitution of professional work in Australia. Using data on the composition of the boards of Australia’s largest companies between 1910 and 2018, we show a deep connection between the managerial class and the top layers of professional hierarchies. Professionals in Australia forged a managerial-capitalist elite within large corporations, relying on a combination of professional expertise and signals of legitimacy that were enabled through higher education and accreditation structures. Relatively low levels of professional enclosure in the late nineteenth and early twentieth centuries created opportunities for Australians from middle- and working-class backgrounds to move into the capitalist elite. These opportunities were reduced significantly from the 1980s onwards as pathways to managerial roles themselves enclosed and as managerialism - as a mode of production - increasingly dominated global capitalism. The result was that by the end of the twentieth century, Australia’s corporate elite more closely resembled the rest of the world’s in its homogeneity and inaccessibility. This demonstrates the central role of professions in the reproduction of Australian capitalism over time, and the influence of professional enclosure on social mobility and inequality.

SOVEREIGNTY AND THE LEGAL LEGACIES OF EMPIRE IN EARLY NINETEENTH-CENTURY PRUSSIA

AbstractThe traceless disappearance of the Holy Roman Empire from the map and the minds of nineteenth-century Germany was until recently a pervasive historiographical trope. Revisionist scholarship has since uncovered the empire's modern afterlife as a model for federative political order and archetype of the greater German (großdeutsche) nation. This article identifies a different kind of legacy, by examining the empire's role in shaping the constitutional configuration of an individual successor state – Prussia. In a debate over Prussia's unwritten historical constitution unfolding in the 1840s, narratives of the empire's constitutional history became the basis on which the juridical structure of the kingdom's sovereignty was negotiated by jurists and political actors. These included, among others, King Frederick William IV and his brother William, the leaders of the German historical school of jurisprudence Savigny and Eichhorn, and the Prussian statesman Kamptz. The article contrasts two rival interpretations of the imperial legacy: a teleological narrative focusing on the evolution of state sovereignty within the imperial constitution and a genealogical narrative highlighting the origins of sovereignty as a hereditary fiefdom. In doing so, it questions the rigid distinction that historians have drawn between the empire and the statehood that replaced it in 1806.

Karl Marx and the Global History of the Civil War: The Slave Movement, Working-Class Struggle, and the American State within the World Market

AbstractThis essay stitches together the fragments of Marx's work on the United States that are scattered in newspaper articles, letters, notes, in some digressions in his early writings, in his economic manuscripts and in Capital (1867). The main aim is to show that what we can call a “global history of the Civil War” emerges from his pen: a history that is global not simply in a geographical sense, that is, because it expands the European space beyond the Atlantic and towards the Pacific, but also because of the general meaning it takes on in the history of capitalism. The essay highlights how the Civil War opened the Marxian issue of emancipation, his vision of class struggle and his view of the working class, to the presence of a black proletariat that interacted with the struggle of the white working classes, the latter of which until then had been the main focus of his work. It also highlights how the different and disarticulated voices of labor – slave and free, black and white – on both sides of the Atlantic effected a revolutionary shift in the Civil War: interjecting a “revolutionary turn” into what we can call the “long constitutional history” of the political conflict between North and South that changed the economic and social shape of the nation. More importantly, the essay reconstructs what can be termed the “state moment,” which was entangled with the “long constitutional history” and the “revolutionary turn” of the Civil War. As the transnational calls for emancipation from slavery and wage labor impacted the transnational processes of accumulation of industrial capital, the American state became a player in the world market: its financial and fiscal policies became socially linked to the government of industrial capital. In this sense, as the essay underlines in the conclusion, the “global history of the Civil War” that Marx effectively drafted, outlined the theoretical and political hypothesis that formed the basis of his mature reflection in the pages of Capital: the “emancipation of labour” should be thought of as a global issue, “neither a local nor a national, but a social problem.”

Geneza i założenia pierwszej konstytucji Republiki Finlandii z 1919 r.

In the history of constitutionalism, a very important stage was the adoption of new constitutions in many European countries within a few years after the end of World War I. The vast majority of these countries gained independence at that historic moment as a result of the collapse of two great empires: the Russian Empire and the Austro-Hungarian Empire. The constitutions established at that time practically everywhere declared a liberal-democratic model of the political system, an example of which could be the March Constitution in the Second Polish Republic or the fundamental laws of Czechoslovakia, Lithuania, Latvia and Estonia. They also include the then-constitutional regulations in the Republic of Finland, the analysis of which is the main goal of this study. First of all, it is necessary to show the genesis of the adopted legal solutions and patterns that determined their final shape. However, special attention should be paid to the principles and basic institutions of the state system of Finland, as laid down in the Act on the Form of Government of 1919, which was not the only act of constitutional rank defining the system of that state at that time. It is also worth asking why the first constitution of the Republic of Finland adopted at that time, unlike the then constitutions of a significant part of European countries (including the Second Polish Republic), was not replaced in the 1930s by a completely new constitution, creating the basis for an authoritarian system of government. The comments presented in this article are the result of an analysis of the Finnish constitutional acts of the interwar period and the available historical and legal as well as legal and political literature.

We the people: federalism and constitutional reform

It was not by chance that the power of amendment was born with the first democratic and federal constitution in history. Its express recognition arose not only because of tensions between the minority and the majority, but also because of the need to articulate a formula of understanding between the peoples of the states and the federal nation. This latter perspective is what this article examines, from two fundamental axes. The first is based on the idea the constitutional recognition of the power of amendment replaces the classical right of rebellion - which became a right to secession - of member states with a 'constitutional right to block reform', one of the characteristics of federal states. The second axis of analysis is linked to the affirmation that the state is a reality that precedes and conditions the constitution as a law, which is why implicit limits may be inferred to the power of amendment from this pre-existence.

Ustav bez zemlje - nastanak Kraljevine SHS i Vidovdanski ustav u nastavi Ustavnog prava u zemljama naslednicama Jugoslavije

"The Vidovdan" Constitution of the Kingdom of Serbs, Croats, and Slovenes, rendered on 28 June 1921, one hundred years after its adoption, remains an unavoidable topic and an occasion for discussions about the reasons for the failure of the Yugoslav state. The unitarian-centralist system unanimously criticized today as an inadequate constitutional form for the functioning of a complex community such as Yugoslavia was once legitimized by the concept of national unity of Serbs, Croats, and Slovenes. The national conception, the type of state system, and the related disagreements are part of both the political and constitutional history of the states that emerged from the disintegration of Yugoslavia. This paper analyses the content of textbooks of Constitutional Law that are in use at law schools in the successor states, which have existed continuously since the breakup of Yugoslavia until today and are used to educate the vast majority of lawyers in these states. The way in which the shared constitutional history from the first decade of Yugoslavia is presented after the collapse of the socialist paradigm (that mainly was unison) largely follows the national borders of the successor states in terms of its content and interpretation.

Was Polllock V. Farmers’ Loan & Trust Co (1895) Decided Consistently with Existing Tax Principles?

The foundation of the modern tax system in the United States is based on the 16th Amendment passed in 1909. The Amendment was Congress’s response to the Pollock v. Farmers' Loan & Trust Company, 157 U.S. 429 (1895), affirmed on rehearing, 158 U.S. 601 (1895). Pollock held that an income tax levied on the US population based on “dividends, royalties, and rents” was unconstitutional. Because of this, Pollock v. Farmers' Loan & Trust Company was a key case in the history of taxation and tax law in the United States. Theoretically, the key question is whether a tax on property is the same as “dividends, royalties, and rents” arising from that property. Understanding the reasoning of this case illuminates key concepts in taxation, the history of taxation, and has implications on Constitutional history and interpretation.

Il regionalismo italiano a vent’anni dalla riforma del Titolo V: prime riflessioni

During its constitutional history, the Italian regional system has gone through different phases, shaped either by a strong state centralism or by the idea of allowing the Regions to exercise a sort of veto power in several important fields. The Italian constitutional experience has been swinging between these extreme points. A balanced constitutional set-up allowing the regions to participate in the formation of state laws is still lacking. The difficulty of creating a balanced regional system also concerns the special regions, whose future seems uncertain.

The Unfinished Atomic Bomb: Shadows and Reflections ed. by David Lowe et al.

Reviewed by: The Unfinished Atomic Bomb: Shadows and Reflections ed. by David Lowe et al. Chad R. Diehl (bio) The Unfinished Atomic Bomb: Shadows and Reflections. Edited by David Lowe, Cassandra Atherton, and Alyson Miller. Lexington Books, Lanham MD, 2018. xviii, 210 pages. $100.00, cloth; $39.99, paper, $38.00, E-book. The collection of scholarly essays in The Unfinished Atomic Bomb, edited by three Australian scholars, shows that the field of atomic-bombing studies is alive and well. By "unfinished," the editors mean two things. One, despite the more than seven decades of academic scholarship that has been [End Page 464] produced about the atomic bombings and their aftermath, there is still much work left to be done. And, two, the word points to how the "experiences, memories, and aftermath, both physical and psychological, of the A-bomb are without end" (p. xvi). The editors gathered a variety of works for this volume, including essays on literature, commemoration, constitutional history, personal biography, and digital humanities. Even though some of the volume's content has appeared elsewhere, it successfully demonstrates the value of continuing to study and write about the bombings, and reminds us of the ongoing trauma for the atomic-bombing survivors (hibakusha). Among the many important chapters in the volume, a couple deserve special attention. Carolyn Stevens's chapter on article 9 of the constitution is one of the best in the book. In it, Stevens provides a compelling look at the history of Japan's current constitution, especially article 9 and its continued significance over the postwar decades and into the present. Stevens links the creation of the so-called Peace Clause to a desire to overcome the devastation of the war and to protect "the individual from the state, as the renunciation of war prevents a prime minister and the Diet from unilaterally declaring war on another nation while protecting the citizenry's right to live in peace" (p. 55). The function of "protecting" citizens from state-enacted violence is perhaps the most enduring and important legacy of article 9. Moreover, the traumatic memory of the atomic bombings, as conveyed by peace-activist groups, has kept article 9 relevant as a reminder of the importance of peace. Interestingly, Stevens posits that article 9 was not a creation of the Allied occupation personnel who wrote the constitution, but instead was originally suggested to General Douglas MacArthur by Prime Minister Shidehara Kijūrō in late 1945. Here, Stevens is in agreement with historians such as Klaus Schlichtmann, whom she cites. Overall, the chapter is engaging, reads smoothly, and is succinct enough to assign in undergraduate surveys and graduate seminars alike. Alyson Miller's chapter looks at the genre of atomic-bombing literature aimed at children, analyzing two storybooks by hibakusha-author Kodama Tatsuharu, Makkuro no obentō (The lunch box) and Shin-chan no sanrinsha (Shin's tricycle). Miller cogently argues that "through vivid and abject depictions of trauma" related to the Hiroshima bombing, the genre serves as an effective form of antinuclear activism. Miller includes a good discussion of how books authored by hibakusha reflect the nature of their trauma. These books, especially those that take the experience of children as their subjects (and often the authors' own experiences), have a "tendency towards short, fragmented narratives" and "focus on ideas about the futility of extreme violence." This makes it, as Miller puts it, "a genre invested in 'cries for sanity and peace'" (p. 69). The honesty of these texts, then, conveys antinuclear messages to their readers. Kodama's books in particular, which Miller skillfully discusses at length, have additional importance for the peace movement because they contextualize two important pieces of [End Page 465] material history, a charred lunchbox and tricycle in the main museum of Hiroshima. Miller's casual comparison of Eleanor Coerr's book Sadako and the Thousand Paper Cranes (Putnam, 1977) and Kodama's storybooks brings to mind an important issue that deserves addressing. Miller acknowledges that Coerr is not a hibakusha but then goes on to make analytical comparisons between the works of Coerr and Kodama simply because, in Miller's mind, their books belong to the same genre of atomic-bombing literature...

Comparing Constitutional Privacy and Data Protection Rights within the EU

Although both data protection and the right to privacy (or respect for private life) are recognised within the EU Charter, they are otherwise generally seen as having very different constitutional histories. The right of privacy is often seen as traditional and data protection as novel. Based on a comprehensive analysis of rights within EU State constitutions, it is found that this distinction is overdrawn. Only five current EU States recognised a constitutional right to privacy prior to 1990, although approximately three quarters and also the European Convention do so today. Subsidiary constitutional rights related to the home and correspondence but not honour and/or reputation are more long-standing and this helps link the core of privacy to the protection of intimacy. Constitutional rights to data protection emerged roughly contemporaneously and were often linked to a general right to privacy but are still only found in around half of EU States. There is also no clear consensus on specific guarantees, although around half of the States which recognise these do include rights to transparency and a slightly lower number right to rectification. This could suggest that data subject empowerment over a wide range of connected information is an important emerging particularity tied to data protection as a constitutional guarantee.

ESSENCE OF SOMATIC HUMAN RIGHTS IN THE PROCESS OF BIOMEDICAL RESEARCH

The aim: To study the constitutional and legal principles and the influence of various factors on the mechanism of realization of somatic rights in the process of biomedical research. Materials and methods: Formal-logical methods of analysis and synthesis allowed to reveal the content of the concepts that make up the subject of research, to classify them, as well as to formulate intermediate and general conclusions. The systematic method allowed to study the role and significance of somatic human rights among other human and civil rights and freedoms. Using the historical method, the doctrinal basis of the study was analyzed, and the main stages of the formation of biomedical research with human participation were identified. Conclusions: The historiography of somatic human rights in biomedical research in a broad sense is a field of scientific knowledge. Studies the development of constitutional and legal science and its patterns; in the narrow sense, it is a set of works on various problems of the history of modern constitutionalism, human rights, the influence of religion on human rights and the mechanism of their implementation and protection in a certain historical period.

Draco’s Constitution and Political Ideas of Athenian Oligarchs

In the article which serves as a sequel to an earlier one the author argues that Draco’s constitution (DC) in Arist. AP 4 does not derive from an oligarchic political pamphlet in which it served as a prototype of a constitution to be implemented in Athens as the majority of scholars believe. The preponderance of scholars believe, relying on the alleged similarity of DC to the project of the ‘Constitution of Five Thousands’ (AP 30) in 411 BC, that DC emerged in the same ‘moderate’ oligarchic circles as a project of the same kind. Others propose later dates for its appearance but almost unanimously ascribe to oligarchic moderates who pleaded for a ‘hoplite constitution.’ The author argues contra that although DC is not reliable as a historical document, it differs considerably from the known political projects of oligarchs. Its distinguishing features make it anachronistic for conditions of 5th–4th centuries BC, but they are much more at home in the last decades of 7th BC. It is likely that Aristotle found this fictional account in one of the historical sources he used in the AP in which it was fabricated to fill a gap in the lacunose history of the early Athenian constitution and it may have been meant to diminish tendentiously Solon’s contribution, representing the latter as modifying the already existing state order.

Power, constitutional identity and the quest for a peoples' constitution in Tanzania

The history of constitution making in Tanzania since the colonial era to date has been dominated by calls for a peoples' constitution that represents a broader national consensus. Irrespective of their weight, these calls reveal an infancy of constitutional identity in Tanzania. While several antecedents for constitutional identity formation have been recorded since the attainment of independence in 1961, they are still insufficient to provide an anatomy of such identity. This insufficiency has significantly contributed to a national consensus that the country needs a new constitution. This consensus is however, decimated by lack of a common agreement especially among political elites on how the new constitution should be obtained. As constitution making continues to suffer from struggles and factionalism among political elites, securing a broader national consensus is very crucial in making the constitution that bears commonly agreed pillars from which the country's constitutional identity should be built.

The History of Israeli Pre-State Constitutionalism

This chapter, written for the Oxford Handbook of the Israeli Constitution, analyzes the history of constitutionalism in Palestine during the late-Ottoman and British-colonial periods, showing that many of the main features of Israeli constitutional law have long-forgotten pre-state origins. Following a brief Introduction to the chapter, Section II discusses official constitutional texts produced during the late-Ottoman and Mandatory periods and also constitutional scholarship from that time. Section III explores the history of the creation of a Hebrew word for “constitution,” showing how arguments over the term reflected competing conceptions of the nature of constitutions. The last section deals with Zionist constitutional thought, discussing practices and plans for the future Jewish entity in Palestine, created during the pre-state era.

Power, constitutional identity and the quest for a peoples' constitution in Tanzania

The history of constitution making in Tanzania since the colonial era to date has been dominated by calls for a peoples' constitution that represents a broader national consensus. Irrespective of their weight, these calls reveal an infancy of constitutional identity in Tanzania. While several antecedents for constitutional identity formation have been recorded since the attainment of independence in 1961, they are still insufficient to provide an anatomy of such identity. This insufficiency has significantly contributed to a national consensus that the country needs a new constitution. This consensus is however, decimated by lack of a common agreement especially among political elites on how the new constitution should be obtained. As constitution making continues to suffer from struggles and factionalism among political elites, securing a broader national consensus is very crucial in making the constitution that bears commonly agreed pillars from which the country's constitutional identity should be built.

The Wealth of Knowledge: <em>Land-Grab Universities</em> in a British Imperial and Global Context

The Wealth of Knowledge:Land-Grab Universities in a British Imperial and Global Context Caitlin P. A. Harvey (bio) the colonial legacy of the American land-grant university traced by the Land-Grab Universities (LGU) project, of public universities "built not just on Indigenous land, but with Indigenous land," reveals a far-reaching pattern of institutional development that relied on the leasing and selling of enormous tracts of expropriated Indigenous lands to raise universities' endowment capital.1 The mechanism effecting this tremendous land redistribution was the Morrill Act (1862). Yet while it was the largest, the Morrill Act was not the only legislative grant of Indigenous land made to fund higher education in the United States or among settler societies worldwide. Contextualizing the LGU findings within the larger history of land-grant universities in British settlement societies makes clear that the American land-grant phenomenon was just one episode in the expanding territoriality of settler-colonial universities. Particularly in Canada and New Zealand but also in Australia and South Africa, fledgling public universities received substantial blocks of unceded Indigenous territory as financing from their governments. The development of America's educational institutions, therefore, did not unfold in isolation from the trends established in other Anglo-dominant settler societies. When we consider the land-grant university in British imperial and global perspective, the full territoriality of land-grant universities comprises over 15 million acres spread over three continents (table 1). Settlers' provincial and federal governments sponsored land-grant institutions with the aim of applying scientific methods to agriculture, fostering technological innovation, and creating an internationally competitive yet civic-minded workforce.2 In New Zealand (Aotearoa) in 1869, for instance, the Province of Otago's legislators issued deeds of 100,000 acres for the University of Otago, followed by another 100,000 acres on the South Island (Te Waipounamu) in the 1870s.3 The Ngāi Tahu disputed this reallocation. But with the New Zealand Wars ongoing and swayed by the complaints of Otago University's largest land lessee, Robert Campbell, the colonial state evicted the Māori landholders.4 [End Page 97] Click for larger view View full resolution Table 1. Aggregate Totals of University Land by Grant and Location In England, the universities of Oxford and Cambridge had long relied on the rental income generated by landholding. Even today, the Oxbridge colleges "are among the largest institutional landowners" in land-scarce England.5 Settler societies carried on this European custom on a larger and more devastating scale. Particularly where capital was lacking from benefactions, fees, or government subsidies, the resort to land-granting was continuous. As early as 1619, the British government assigned 10,000 acres to a "Henrico College" in Virginia. Warfare with the Powhatan Confederacy and chronic underpopulation ensured that this institution was short-lived.6 Reaching forward to the nineteenth century and prior to the Morrill Act, The Constitutional History of New York indicates that in 1846 the U.S. [End Page 98] government released to "Tennessee 1,300,000 acres of public land in that state for the endowment of a college."7 This land, nearly the size of Delaware, lay to the "south and west of the Congressional reservation line." Supposedly "vacant and unappropriated Lands" existed there after the violent removal of the Cherokee.8 In nearly the same moment, one of the earliest educational land grants in British North America went to King's College, a precursor to the University of Toronto, in 1828. An Anglican bishop, John Strachan, secured 225,944 acres of valuable Crown Reserves for the new college.9 It is likely that much of this property once supported the Mississaugas of New Credit (Mississauga Ojibwa). Under the strain of recurring Indigenous-settler skirmishes, the Mississaugas ceded 250,808 acres of their land—covering most of what is now the city of Toronto and region of York—first to the British Crown in 1787 and then to the Upper Canadian government in 1805. The Toronto Purchase, as these agreements became known, followed the influx of Loyalists into Upper Canada after the American Revolutionary War.10 Following Canadian Confederation in 1867, institutions of higher learning repeated Toronto's (and, by then, also...

Lochner Under Lockdown

In 1905, the Supreme Court rendered two landmark decisions on the scope of individual liberty—Jacobson vs. Massachusetts and Lochner v. New York. The first denied a substantive due process claim and has become the go-to citation in COVID-19 cases. The other upheld a substantive due process claim—but was later overruled and thrown in the dustbin of constitutional history. Yet to address the broad restrictions on liberty caused by current and foreseeable pandemic responses, it is worth noting that the Lochner Court is the Jacobson Court and that the cases were decided within months of each other. The latter’s broad deference to public health authority lived side-by-side with a broader conception of individual liberty. At a time when state police power has imposed unprecedented limitations on individuals’ ability to provide for themselves in dignity, Lochner should be brought out of lockdown.This Essay argues that whatever Lochner’s failings, the rationales for its overruling subsequent are largely inapplicable to the current COVID-19 restrictions. Unlike the laws occasionally struck down by the Lochner Court, shut down orders and the like have an economic effect, but are not economic policy. They regulate people's ability to make a living even more than most economic laws. Lockdown measures are accompanied by a governmental power to determine, often on inscrutable grounds, what callings are sufficiently important or "essential" to some undefined notion of social good to be carried on. This may be one of the broadest assertions of sovereign authority in peacetime. Yet in a post-Lochner world, we lack the constitutional language to deal with the potential danger to liberty implicated by such measures. At the same time, the Jacboson/Lochner juxtaposition demonstrates that taking work-related liberties seriously does not mean jettisoning deep deference to public health measures, especially in infectious emergencies.Lochner is often criticized as an attempt by the Court to second-guess legislative judgements about economic policy and redistribution. This Essay shows that a more modest, focused version of the Lochner doctrine is much better suited to traditional police power measures (such as health and safety) that nonetheless have significant effects on people’s ability to pursue their callings and support themselves. (Lochner itself was the opposite—an economic regulation dressed up as public health measure.) This Essay presents a model for a "little Lochner" that would allow for constitutional scrutiny of unprecedented non-economic policies that broadly interfere with people's ability to pursue their callings, while taking seriously courts' limited expertise and society's need to protect itself for virological externalities.

Bringing Gender and Class into the Frame: An Intersectional Analysis of the Decoloniality-As-Race Critique of the Use of Law for Social Change

During 2017, South African decoloniality theorist Tshepo Madlingozi argued, in relation to the ongoing socio-political and economic exclusion of the black majority in South Africa, that the post-1994 rights-based constitutional order represents more continuity than rupture, consolidating a triumph of social justice over liberation and a privileging of the democratisation paradigm over the decolonisation one. In Madlingozi’s critique of the “neo-apartheid” social justice order, race continues to be the most important dividing line, and human rights constitute a western “perpetuation of the coloniality of being”. This argument resonates with broader contemporary critiques of the weak, compromising and imperial nature of human rights. Against this backdrop, we examine the potential, as well as the limits, of using human rights as a tool for social change. Engaging an intersectional analysis informed by the seminal work of Kimberlé Crenshaw and Nancy Fraser, we find that the focus on decoloniality-as-race obscures other critical fault lines to the detriment of progressive change, and that a radical reading of human rights is capable of correcting this flaw. We argue that the incorporation of gender and class lenses provides a powerful tool to change both the narrative about the drivers of inequality among capitalist democracies and the role of socio-economic rights adjudication within them. Our article is also an invitation to rethink the domestic constitutional histories of the global south by acknowledging rights-based redistributive transformations within the context of market and development policies, and to push for the uptake of rights to empower social struggle and tackle structural disadvantage.

Breaking the Cycle: Rot and Recrudescence in American Constitutional History

This essay for a symposium on Jack Balkin’s The Cycles of Constitutional Time draws on Balkin’s framework to evaluate the prospect of constitutional renewal through judicial review. It begins by questioning Balkin’s conclusion that historical change operates cyclically. It then takes up his assumption that courts have served as a source of constitutional renewal during some periods, including the mid-twentieth century. It argues that the Carolene Products regime that Balkin describes should be understood not as a solution to economic inequality and republican rot in a period of declining political polarization, but rather as a precipitating cause. Indeed, the New Deal settlement may have staved off durable change and thereby produced the seemingly cyclical pattern Balkin observes.