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

by Rosenfeld; Michel

• ISBN13: 9780415949743
• ISBN10: 0415949742
• Edition: 1st
• Format: Nonspecific Binding
• Copyright: 2009-11-11
• Publisher: Routledge

Summary

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

Dedication	p. vii
Acknowledgements	p. xiii
Introduction	p. 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 Selfhood	p. 27
The Constitutional Subject and the Clash of Self and Other: On The Uses Of Negation, Metaphor and Metonymy	p. 37
The Constitutional Self and the Clash Between Self and Other	p. 38
Construction, Deconstruction and Reconstruction of Constitutional Identity	p. 41
The Constructive Tools of Constitutional Discourse: Negation, Metaphor and Metonymy	p. 45
Negation	p. 46
Metaphor	p. 51
Metonymy	p. 53
Constitutional Discourse as Interplay Between Negation, Metaphor and Metonymy	p. 58
The Constitutional Subject and the Potential Reconciliation of the Singular, the Plural and the Universal	p. 65
Producing Constitutional Identity	p. 71
Reinventing Tradition Through Constitutional Interpretation: The Case of Unenumerated Rights in the United States	p. 73
Building and Differentiating Constitutional Identity	p. 73
Setting American Unenumerated Rights Against Tradition	p. 75
The Metaphoric and Metonymic Dimensions of Tradition	p. 78
Reinventing Tradition Through Overdetermination: From the Sanctity of Marriage to the Dignity of Homosexual Sex	p. 81
Griswold and the Metonymic Path from Marriage to Contraception	p. 82
The Lockean Gloss on Griswold	p. 90
Eisenstadt and Molding the Tradition to Encompass Non-Marital Heterosexual Sex	p. 96
Roe and the Challenge of Fitting Abortion within the Reinvented Tradition	p. 99
The Reinvented Tradition's Contradictory Approaches to Homosexual Sex	p. 104
Bowers: Drawing the Line at Homosexual Sodomy	p. 105
Lawrence's Encompassing of Homosexual Sex within the Reinvented Tradition	p. 110
The Reinvented Tradition and the Clash Between Liberalism and Illiberalism	p. 116
The Reinvented Tradition and Reliance on Foreign Legal Authorities	p. 119
Concluding-Remark: Overdetermination and Blending Tradition and Counter-tradition	p. 123
Recasting and Reorienting Identity Through Constitution-Making: The Pivotal Case of Spain's 1978 Constitution	p. 127
Constitution-making in Context	p. 128
The Place of Violence in Constitution Making	p. 132
The Extraordinary Case of Spain's Peacefully Pacted Constitution	p. 134
The King as Repository of National and Constitutional Unity	p. 142
Constitutional Identity as Bridge between Self and Other: Binding Together Citizenship, History and Society	p. 147
Constitutional Models: Shaping, Nurturing and Guiding the Constitutional Subject	p. 149
The German Constitutional Model	p. 152
The French Constitutional Model	p. 156
The American Constitutional Model	p. 158
The British Constitutional Model	p. 163
The Spanish Model	p. 169
The European Transnational Constitutional Model	p. 172
The Post-Colonial Constitutional Model	p. 179
Models Of Constitution Making	p. 185
The Revolution-Based Model	p. 188
The Invisible British Model	p. 191
The War-Based Model	p. 194
The Pacted Transition Model	p. 197
The Transnational Model	p. 201
The Internationally Grounded Model	p. 206
Constitutional Amendment, Revision and Reform	p. 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 Nation	p. 213
Historical Nexus Between Equal Citizenship and the Nation-State	p. 215
Social Contract Theory and Modern Equal Citizenship	p. 217
The Functional Dimension of Citizenship	p. 221
The Identitarian Dimension of Citizenship and the Evolution from the Mono-Ethnic to the Multi-Ethnic Polity	p. 223
The Feminist Case for Differentiated Citizenship	p. 225
National Minorities and the Problematization of Differentiated Citizenship	p. 227
Global Migration and the Decoupling of the Functional and the Identitarian Dimensions of Citizenship	p. 233
Transnational Citizenship and Recasting the Dynamic between Function and Identity	p. 235
The Case of EU Citizenship	p. 236
The Changing Dynamic between EU and Member-State Citizenship	p. 239
Transnational Citizenship Beyond the EU?	p. 241
Can The Constitutional Subject Go Global? Imagining a Convergence of the Universal, the Particular and the Singular	p. 243
Constitutional Reordering in an Era of Globalization and Privatization	p. 245
The Nexus between Human Rights and Constitutional Rights	p. 251
Constitutional Patriotism as Transnational Constitutional Identity?	p. 258
Constitutional Patriotism in Historical Perspective	p. 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 Plural	p. 269
Notes	p. 281
Bibliography	p. 309
Index	p. 319
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