The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community

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  • Edition: 1st
  • Format: Hardcover
  • Copyright: 2009-11-19
  • Publisher: Routledge

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The last fifty years has seen a worldwide trend toward constitutional democracy. But Identity of the Constitutional Subject asks, can constitutionalism become truly global? Relying on historical examples of successfully implanted constitution regimes, ranging from the older experiences in the United States and France to the relatively recent one in Germany and Spain, Rosenfeld sheds light on the range of conditions necessary for the emergence, continuity and adaptability of viable constitutional identity-citizenship, nationalism, multiculturalism, and human rights are important examples--Identity of the Constitutional Subject will be the first systematic analysis of the concept.

Author Biography

Michel Rosenfeld is Justice Sydney L. Robins Professor of Human Rights, at the Benjamin N. Cardozo School of Law. Rosenfeld teaches and is widely published in the fields of American and comparative constitutional law and legal philosophy. His books include Affirmative Action and Justice: A Philosophical and Constitutional inquiry (1991); Just Interpretations. Law Between Ethics and Politics (1998); and Comparative Constitutionalism: Cases and Materials (2003).

Table of Contents

Dedicationp. vii
Acknowledgementsp. xiii
Introductionp. 1
Why Constitutional Identity and for Whom?p. 15
The Constitutional Subject: Singular, Plural or Universal?p. 17
Who Is the Constitutional Subject?p. 18
Constitutional Identity and the Dynamic Between Sameness and Selfhoodp. 27
The Constitutional Subject and the Clash of Self and Other: On The Uses Of Negation, Metaphor and Metonymyp. 37
The Constitutional Self and the Clash Between Self and Otherp. 38
Construction, Deconstruction and Reconstruction of Constitutional Identityp. 41
The Constructive Tools of Constitutional Discourse: Negation, Metaphor and Metonymyp. 45
Negationp. 46
Metaphorp. 51
Metonymyp. 53
Constitutional Discourse as Interplay Between Negation, Metaphor and Metonymyp. 58
The Constitutional Subject and the Potential Reconciliation of the Singular, the Plural and the Universalp. 65
Producing Constitutional Identityp. 71
Reinventing Tradition Through Constitutional Interpretation: The Case of Unenumerated Rights in the United Statesp. 73
Building and Differentiating Constitutional Identityp. 73
Setting American Unenumerated Rights Against Traditionp. 75
The Metaphoric and Metonymic Dimensions of Traditionp. 78
Reinventing Tradition Through Overdetermination: From the Sanctity of Marriage to the Dignity of Homosexual Sexp. 81
Griswold and the Metonymic Path from Marriage to Contraceptionp. 82
The Lockean Gloss on Griswoldp. 90
Eisenstadt and Molding the Tradition to Encompass Non-Marital Heterosexual Sexp. 96
Roe and the Challenge of Fitting Abortion within the Reinvented Traditionp. 99
The Reinvented Tradition's Contradictory Approaches to Homosexual Sexp. 104
Bowers: Drawing the Line at Homosexual Sodomyp. 105
Lawrence's Encompassing of Homosexual Sex within the Reinvented Traditionp. 110
The Reinvented Tradition and the Clash Between Liberalism and Illiberalismp. 116
The Reinvented Tradition and Reliance on Foreign Legal Authoritiesp. 119
Concluding-Remark: Overdetermination and Blending Tradition and Counter-traditionp. 123
Recasting and Reorienting Identity Through Constitution-Making: The Pivotal Case of Spain's 1978 Constitutionp. 127
Constitution-making in Contextp. 128
The Place of Violence in Constitution Makingp. 132
The Extraordinary Case of Spain's Peacefully Pacted Constitutionp. 134
The King as Repository of National and Constitutional Unityp. 142
Constitutional Identity as Bridge between Self and Other: Binding Together Citizenship, History and Societyp. 147
Constitutional Models: Shaping, Nurturing and Guiding the Constitutional Subjectp. 149
The German Constitutional Modelp. 152
The French Constitutional Modelp. 156
The American Constitutional Modelp. 158
The British Constitutional Modelp. 163
The Spanish Modelp. 169
The European Transnational Constitutional Modelp. 172
The Post-Colonial Constitutional Modelp. 179
Models Of Constitution Makingp. 185
The Revolution-Based Modelp. 188
The Invisible British Modelp. 191
The War-Based Modelp. 194
The Pacted Transition Modelp. 197
The Transnational Modelp. 201
The Internationally Grounded Modelp. 206
Constitutional Amendment, Revision and Reformp. 209
The Constitutional Subject and Clashing Visions of Citizenship: Can We Be Beyond What We are Not?p. 211
The Theoretical Foundations of Modern Citizenship: Universal Equality within a Particular Nationp. 213
Historical Nexus Between Equal Citizenship and the Nation-Statep. 215
Social Contract Theory and Modern Equal Citizenshipp. 217
The Functional Dimension of Citizenshipp. 221
The Identitarian Dimension of Citizenship and the Evolution from the Mono-Ethnic to the Multi-Ethnic Polityp. 223
The Feminist Case for Differentiated Citizenshipp. 225
National Minorities and the Problematization of Differentiated Citizenshipp. 227
Global Migration and the Decoupling of the Functional and the Identitarian Dimensions of Citizenshipp. 233
Transnational Citizenship and Recasting the Dynamic between Function and Identityp. 235
The Case of EU Citizenshipp. 236
The Changing Dynamic between EU and Member-State Citizenshipp. 239
Transnational Citizenship Beyond the EU?p. 241
Can The Constitutional Subject Go Global? Imagining a Convergence of the Universal, the Particular and the Singularp. 243
Constitutional Reordering in an Era of Globalization and Privatizationp. 245
The Nexus between Human Rights and Constitutional Rightsp. 251
Constitutional Patriotism as Transnational Constitutional Identity?p. 258
Constitutional Patriotism in Historical Perspectivep. 259
Constitutional Patriotism in a Layered and a Segmented Transnational Legal Order?p. 261
Concluding Remarks: Reaching for the Transnational Constitutional Subject by Reconciling the Universal and the Singular Through the Pluralp. 269
Notesp. 281
Bibliographyp. 309
Indexp. 319
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