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

Overview

The last fifty years has seen a worldwide trend toward constitutional democracy. But, can constitutionalism become truly global?

Relying on historical examples to successfully implanted constitutional regimes ranging from the older experiences in the United States and France to the relatively recent ones in Germany, Spain and South Africa, Michel Rosenfeld sheds light on the range of conditions necessary for the emergence, continuity and adaptability of a viable constitutional ...

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

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Overview

The last fifty years has seen a worldwide trend toward constitutional democracy. But, can constitutionalism become truly global?

Relying on historical examples to successfully implanted constitutional regimes ranging from the older experiences in the United States and France to the relatively recent ones in Germany, Spain and South Africa, Michel Rosenfeld sheds light on the range of conditions necessary for the emergence, continuity and adaptability of a viable constitutional identity - citizenship, nationalism, multiculturalism, and human rights being important element.

The identity of the Constitutional Subjects is the first systematic analysis of the concept, drawing on philosophy, psychoanalysis, political theory and law from a comparative perspective to explore the relationship between the ideal of constitutionalism and the need to construct a common constitutional identity that is distinct from national, cultural, ethnic or religious identity.

The identity of the Constitutional Subject will be of interest to students and scholars in law, legal and political philosophy, political science, multicultural studies, international relations and US politics.

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Editorial Reviews

From the Publisher
"The Identity of the Constitutional Subject is a book of breadth, depth and impressive learning. It sets a new standard in comparative constitutional analysis." - Joseph Weiler, University Professor and Joseph Straus Professor, New York University School of Law

"When the Constitution "speaks", who is actually speaking? And to whom? What about? These old questions are treated by Michel Rosenfeld in an exciting and refreshingly novel way. Using his formidable philosophical and comparative-constitutional expertise, oscillating effortlessly between legal systems as different as the United States and France, Spain and Hungary; referring to thinkers as different as Freud and Rawls, Lacan and Rousseau – Rosenfeld has offered a profound and powerful analysis of "the constitutional subject" that will become essential reading for all those dealing with constitutional theory, comparative law, and political philosophy." - Wojciech Sadurski, Challis Professor of Jurisprudence, The University of Sydney

"The challenge of pluralism, writes Michel Rosenfeld, is to forge a political structure held together by a fixed set of norms while leaving room for an accommodation with those who do not accept those norms. The promise and the difficulties of this necessary project are the subjects of Rosenfeld’s magisterial synthesis of political, psychological, theological and theoretical perspectives on the subject of constitutionalism. The result is a trenchant and historically nuanced exploration of issues no one and no nation can afford to ignore."Stanley Fish, Professor of Law, Florida International University

"Michel Rosenfeld has written a provocative and erudite exploration of paradoxes of identity, national and constitutional. Informed by his wide knowledge of constitutionalism around the world, the book offers an account of the different ways in which a nation whose population changes over time can have an enduring national identity and how those different ways can be tied to different forms of national constitutions which do not change over time. As with all important contributions to constitutional theory, not all readers will agree with Professor Rosenfeld's arguments, but the field will surely benefit from his work." Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

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Product Details

  • ISBN-13: 9780415949736
  • Publisher: Taylor & Francis
  • Publication date: 12/14/2009
  • Pages: 344
  • Product dimensions: 6.30 (w) x 9.30 (h) x 1.00 (d)

Meet the Author

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).

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Table of Contents

Dedication vii

Acknowledgements xiii

Introduction 1

Part 1 Why Constitutional Identity and for Whom? 15

1 The Constitutional Subject: Singular, Plural or Universal? 17

1.1 Who Is the Constitutional Subject? 18

1.2 Constitutional Identity and the Dynamic Between Sameness and Selfhood 27

2 The Constitutional Subject and the Clash of Self and Other: On The Uses Of Negation, Metaphor and Metonymy 37

2.1 The Constitutional Self and the Clash Between Self and Other 38

2.2 Construction, Deconstruction and Reconstruction of Constitutional Identity 41

2.3 The Constructive Tools of Constitutional Discourse: Negation, Metaphor and Metonymy 45

2.3.1 Negation 46

2.3.2 Metaphor 51

2.3.3 Metonymy 53

2.4 Constitutional Discourse as Interplay Between Negation, Metaphor and Metonymy 58

2.5 The Constitutional Subject and the Potential Reconciliation of the Singular, the Plural and the Universal 65

Part 2 Producing Constitutional Identity 71

3 Reinventing Tradition Through Constitutional Interpretation: The Case of Unenumerated Rights in the United States 73

3.1 Building and Differentiating Constitutional Identity 73

3.2 Setting American Unenumerated Rights Against Tradition 75

3.3 The Metaphoric and Metonymic Dimensions of Tradition 78

3.4 Reinventing Tradition Through Overdetermination: From the Sanctity of Marriage to the Dignity of Homosexual Sex 81

3.4.1 Griswold and the Metonymic Path from Marriage to Contraception 82

3.4.2 The Lockean Gloss on Griswold 90

3.4.3 Eisenstadt and Molding the Tradition to Encompass Non-Marital Heterosexual Sex 96

3.4.4 Roe and the Challenge of Fitting Abortion within the Reinvented Tradition 99

3.4.5The Reinvented Tradition's Contradictory Approaches to Homosexual Sex 104

3.4.5(i) Bowers: Drawing the Line at Homosexual Sodomy 105

3.4.5(ii) Lawrence's Encompassing of Homosexual Sex within the Reinvented Tradition 110

3.5 The Reinvented Tradition and the Clash Between Liberalism and Illiberalism 116

3.6 The Reinvented Tradition and Reliance on Foreign Legal Authorities 119

3.7 Concluding Remark: Over determination and Blending Tradition and Counter-tradition 123

4 Recasting and Reorienting Identity Through Constitution-Making: The Pivotal Case of Spain's 1978 Constitution 127

4.1 Constitution-making in Context 128

4.2 The Place of Violence in Constitution Making 132

4.3 The Extraordinary Case of Spain's Peacefully Pacted Constitution 134

4.3.1 The King as Repository of National and Constitutional Unity 142

Part 3 Constitutional Identity as Bridge between Self and Other: Binding Together Citizenship, History and Society 147

5 Constitutional Models: Shaping, Nurturing and Guiding the Constitutional Subject 149

5.1 The German Constitutional Model 152

5.2 The French Constitutional Model 156

5.3 The American Constitutional Model 158

5.4 The British Constitutional Model 163

5.5 The Spanish Model 169

5.6 The European Transnational Constitutional Model 172

5.7 The Post-Colonial Constitutional Model 179

6 Models of Constitution Making 185

6.1 The Revolution-Based Model 188

6.2 The Invisible British Model 191

6.3 The War-Based Model 194

6.4 The Pacted Transition Model 197

6.5 The Transnational Model 201

6.6 The Internationally Grounded Model 206

6.7 Constitutional Amendment, Revision and Reform 209

7 The Constitutional Subject and Clashing Visions of Citizenship: Can We Be Beyond What We are Not? 211

7.1 The Theoretical Foundations of Modern Citizenship: Universal Equality within a Particular Nation 213

7.1.1 Historical Nexus Between Equal Citizenship and the Nation-State 215

7.1.2 Social Contract Theory and Modern Equal Citizenship 217

7.2 The Functional Dimension of Citizenship 221

7.3 The Identitarian Dimension of Citizenship and the Evolution from the Mono-Ethnic to the Multi-Ethnic Polity 223

7.3.1 The Feminist Case for Differentiated-Citizenship 225

7.3.2 National Minorities and the Problematization of Differentiated Citizenship 227

7.4 global Migration and the Decoupling of the Functional and the Identitarian Dimensions of Citizenship 233

7.5 Transnational Citizenship and Recasting the Dynamic between Function and Identity 235

7.5.1 he Case of EU Citizenship 236

7.5.2 he Changing Dynamic between EU and Member-State Citizenship 239

7.5.3 ransnational Citizenship Beyond the EU? 241

8 Can The Constitutional Subject Go Global? Imagining a Convergence of the Universal, the Particular and the Singular 243

8.1 Constitutional Reordering in an Era of Globalization and Privatization 245

8.2 The Nexus between Human Rights and Constitutional Rights 251

8.3 Constitutional Patriotism as Transnational Constitutional Identity? 258

8.3.1 Constitutional Patriotism in Historical Perspective 259

8.3.2 Constitutional Patriotism in a Layered and a Segmented Transnational Legal Order? 261

8.4 Concluding Remarks: Reaching for the Transnational Constitutional Subject by Reconciling the Universal and the Singular Through the Plural 269

Notes 281

Bibliography 309

Index 319

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