Another Birth of Freedom

Author(s):  
Angélica Maria Bernal

This chapter examines a previously unexplored perspective on the US civil rights refounding: Méndez v. Westminster School District et al. (1947), a case reflecting the political and legal struggles of Mexican American parents in 1940s Orange County to challenge their children’s segregation from California’s public schools. Against familiar interpretations that excluded groups advance social-justice claims before the broader society as appeals to the promises of the Founding or Founders, this chapter argues that even when situated as appeals within the law, foundational challenges are better understood as underauthorized ones: actions that self-authorize not on the basis of an order that once was, but on the basis of a citizen-subject position and political order that are at once precarious and yet to come. This type of constitutional politics, the chapter argues, challenges understandings of democratic self-constitution predicated on a unified “We, the People” by bringing to light the constituent power of the excluded.

Author(s):  
Markus Patberg

This chapter addresses the public narrative of ‘We, the people and peoples of Europe’, which presents constituent power in the EU as shared between a European demos and the national demoi, and examines whether it amounts to a systematic model that withstands critical scrutiny. For this purpose, it draws on the political theory of split popular sovereignty, which interprets the EU as a federation (Bund) based on the democratic pillars of European citizens and European peoples. The chapter argues that Jürgen Habermas’s hypothetical notion of a pouvoir constituant mixte, which projects constituent power into the past, can be developed into a future-oriented model for actual decision-making in EU constitutional politics based on Habermas’s own idea of a permanent founding. Assessing the plausibility of this view, the chapter argues that the idea of dual constituent power avoids some of the shortcomings of regional cosmopolitanism and demoi-cracy, but also entails a problematic pre-commitment to the preservation of the EU member states, perplexingly stratifies constituent power across national and supranational levels, and blurs the procedural-institutional line between constituent and constituted powers.


2021 ◽  
Vol 95 (2) ◽  
pp. 335-340
Author(s):  
Laura Phillips Sawyer

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live one's life fully, such as the freedom of religion, speech, or association. The vim in Winkler's argument is that the court blurred this distinction when it applied liberty rights to nonprofit corporations and then, through a series of twentieth-century rulings, corporations were able to advance greater claims to liberty rights. Ultimately, those liberty rights have been employed to strike down significant bipartisan regulations, such as campaign finance laws, which were intended to advance democratic participation in the political process. At its core, this book asks, to what extent do “we the people” rule corporations and to what extent do they rule us?


Author(s):  
Markus Patberg

This chapter deals with the question of whether the public narrative of ‘We, the people of Europe’, which claims constituent power for a cross-border demos composed of EU citizens, can be justified in terms of a systematic model. To that end, it draws on the political theory of regional cosmopolitanism, which holds that even though the EU is not a state, it has its own political community. The literature on regional cosmopolitanism offers two possible strategies of defending the idea of an EU-wide constituent power: a first-principles approach and a reconstructive approach. The chapter argues that only the latter proves viable, and then goes on to examine the merits of the model that it gives rise to. While regional-cosmopolitan constituent power plausibly responds to the fact that the EU has created a new group of addressees and authors of the law, it neglects the continuing importance of the member state peoples and fails to explain how an EU-wide constituent power could be reconciled with the compound and dependent nature of the EU polity.


Author(s):  
Sudeshna Chakravorty

The political and cultural contexts are very important to the experience of trauma (individual or communal), and yet, ultimately every reaction to an event is unique, depending largely on individual positioning and psychic history. ‘True’ versions of traumatic historical events, with minimum contamination or distortion by any specific ideology or unreliable memory, are needed; if these narratives are to have long-term value. Unfortunately, most often the ‘social discourse’ surrounding these is manipulated by institutional forces (including the media) and the main experience gets either downplayed or sensationalised. By focussing on the journey of the Palestinian doctor, Dr. Izzeldin Abuelaish, this essay attempts to highlight such responsible responses to trauma. Dr. Abuelaish, even after growing up in a refugee camp in Gaza, or after witnessing the death of his three daughters by Israeli tank shells that hit his home, rather than seeking revenge or letting intrusive memories fill him with eternal hatred, continues his humanitarian call for the people of the region to come together, promoting understanding, respect, and peace. His experiences, some of which was captured live on TV, and later penned down in his memoir I Shall Not Hate; and his life choices and activities since the tragedy are the best example how unconventional individual reactions can have largescale repercussions; and hence needs to be chronicled. Dominick LaCapra had pointed out that trauma often leads to distorted identity-formation, where either the subject-position of ‘victim’ or ‘perpetrator’ becomes prominent; “wherein one is possessed by the past and tends to repeat it compulsively” (Representing the Holocaust 12). But this article seeks to reveal how, when some individuals find within themselves to rise above such binaries, and tell their stories sensitively yet objectively- they accelerate the healing process, both for themselves and the community.


2020 ◽  
Vol 4 (3) ◽  
pp. 15
Author(s):  
Ross Allan Sempek

With government machinations, scandals, and conflict bombarding our American consciousness, it’s easy to overlook the core of our country’s identity: the US Constitution. The first three words of this dearly regarded text remind us that we are the constituents who fulfill the ideals of this document. We the People are the progressive catalyst this country needs to realize the lofty ideals of our Constitution.


Author(s):  
Ken I. Kersch

Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the president—like judges—also takes oaths to uphold the Constitution and may have their own, perhaps more sensible, interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people (what, in recent years, has come to be called “extra-judicial constitutional interpretation”). For over a century now—beginning with the contestation in the late 19th and early 20th centuries between traditionalist judges wielding their judicial review powers versus the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review have been at the center of academic and popular discussion of US constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle rather than the whole subject.


Author(s):  
Julie Buckner Armstrong

Southern literature provides numerous, diverse responses to the civil rights era. Produced during the movement itself and continuing into the 21st century, southern civil rights writing appears as poetry, drama, memoir, graphic narrative, short stories, and novels, including literary fiction and bestsellers. Movement-related works commemorate events, places, and people both famous and unknown. Authors speak of political awakening to systemic racism and violence. They consider the effectiveness of organizing tactics and the ethical implications of resistance strategies. They write compellingly about the ways segregation, protest, race relations, and sweeping social changes affect individuals and their relationships. Southern literature also exists in complex relationship to the civil rights era due in part to both terms’ fluid, evolving definitions. “Southern literature” can refer to works written in and about the American South, yet both of these categories remain more dynamic than static. The South is demarcated geographically as the United States’ southeastern and south central tier and historically as a region with ties to the former Confederacy. The South’s vexed legacy of slavery and segregation plays a role in defining a regional identity that some consider to be distinctive in terms of dialect, food culture, and an emphasis on conservative views of family, community, religion, place, and history. Many scholars, however, see constructions of a distinct southern identity with an accompanying literature as outmoded, particularly in an era of shifting demographics within the US and globalization more broadly. Like “southern literature,” the “civil rights era” resists rigid definition. The movement itself can refer to the period from the US Supreme Court’s 1954 Brown vs. Board of Education decision desegregating public schools to the 1965 Voting Rights Act—an era focused on specific civil rights leadership, goals, and, notably, the American South. Alternatively, one can define the movement more comprehensively to look at what happened before and after “the King years,” referring to the period’s iconic figure Martin Luther King Jr. This version of civil rights extends the movement to points North and West, includes Black Power (typically focused on the late 1960s and early 1970s), and links it to contemporaneous human rights and post-colonial struggles. Authors from the American South respond to this broader story by connecting the movement to issues such as immigration; policing and incarceration; economic and environmental justice; and lesbian, gay, bisexual, and transgender (LGBT) rights. Here writers depict a dynamic, multifaceted South that continues striving to transform political ideals into realities.


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