Search Results

This chapter explores how students' private concerns came to occupy the center of campus and national politics in the 1960s and in so doing thrust higher education into the thick of the nascent rights revolution. Students' rights-based reconstruction of the educated citizen marked a departure from the older reciprocal-based formulation that had been decisive in the creation of past higher education policy. From the 1930s through the 1950s, the state provided citizens with educational opportunities in order to repay them for their sacrifices during the Great Depression and the brutal war years that followed. But the gradual expansion of educational access and of federal involvement in higher education set in motion a sequence of unexpected social and political reactions that prepared the way for the shift from a reciprocal to a rights-based conception of the educated citizen founded on the principle of diversity.

This introductory chapter begins with a discussion of the explosion of fundamental rights into all corners of the French and European judiciaries, which is transforming the judicial landscape. It shows that for many high courts, these developments have effectively forced them to translate their prior procedural, doctrinal, and conceptual schemes into fundamental rights terms. The chapter then explains the methodology used in this book. An overview of the subsequent chapters is presented.

This chapter analyzes the nature and direction of reforms in the French system. Are they destroying the French republican tradition of judicial decision-making, transforming it inexorably into a more pluralist and even liberal judicial model? Or are they proposing minor adjustments whose significance pales in comparison to all that remains unchanged? Does the explosive emergence of the fundamental rights idiom, further effectuated by the capacity of individual litigants to intervene more directly in the judicial decision-making processes, represent the dreaded incursion of libéralisme onto French soil? Or can these developments instead be understood as a long overdue renewal of the republican model, one that improves, rather than dismantles, the representative and participatory capacities of French judicial institutions? The chapter concludes by moving beyond a reading that reduces the current French judicial transformations to a straightforward shift either from an inquisitorial to an adversarial model, or from a republican to a liberal one.

The key question is whether enough remains of the traditional French republican package to counterbalance the dramatic procedural, doctrinal, institutional, and conceptual changes that have already taken place. This Epilogue addresses the most recent and striking evidence: in July 2008, the French Constitution was amended to permit individuals to raise constitutional objections to existing legislation before the ordinary and administrative courts. In the shadow of Europe, the French judiciary has been transformed; and the European judiciary is being transformed along with it.

This chapter lays the groundwork for making sense of the charged debates currently swirling in French legal circles. It begins with the heated discussions over prospective overruling. This controversy spills over into several others, including the traditional theoretical questions over the proper ‘sources of the law’, recent policy discussions concerning the promotion of ‘legal certainty’, and methodological arguments over the pros and cons of judges engaging in a more ‘realist’ and economically informed mode of legal analysis. The chapter then explains how this cluster of issues has also been linked to the nagging question of the proper role of the Advocates General at the Cour de cassation. Finally, the chapter explains that these procedural, methodological, and conceptual controversies can only be decoded and understood in the context of the ongoing (and interrelated) French and European rights revolutions.

This chapter examines whether reforms in the French system represent major transformations of, or merely minor adjustments to, the traditional French judicial order. Do the procedural reforms instantiated in response to the European Court of Human Rights' (ECHR) Article 6(1) ‘fair trial’ jurisprudence profoundly alter the institutional dynamics and conceptual parameters of judicial decision-making? Have they prompted a large-scale reconsideration of the nature and function of the judiciary? Or do these adjustments represent little more than pouring old French wine into new casks?

This chapter inventories the accomplishments and defeats of the conservative legal movement. It argues that the conservative legal movement has a high degree of professionalism, financial stability and intellectual capital. The question now is whether it possesses sufficient intellectual and organizational resources to adapt successfully to a changed environment of institutional and political hostility. The chapter concludes that it does, although it will be severely tested in the process. The chapter examines the conservative legal movement's record in four areas: court appointments, litigation, administration, and institutionalization. It then goes on to analyze the movement's foundational commitment—originalism—and predicts a reformulations of the concept with a keener appreciation of originalism's limitations and a greater emphasis on complementary legal values of constitutional rights, structure, and limited government.

The growing capacities of a government preoccupied by the urgent need for mobilization provided an opportunity for those seeking full citizenship. A heightened wartime sense of national citizenship and responsibility—encouraged by the sudden surge of influence of the Army and Navy, as well as the new proliferation of power of federal agencies—enabled activists, in return, to demand new rights from the federal government. This would, in due course, lead to the so-called “rights revolution” of the 1960s, a revolution that underpinned by the civil rights movement. Yet during the war, the state’s need to foment nationalism and preempt unrest prevented groups that were seeking consumer rights and civil rights from making much headway. After all, the state’s concern was not with minority rights, but maintaining morale. To do so, federal agencies co-opted African American officials, giving them a semblance of influence but constraining their freedom to dissent. Ironically, it was precisely because African American morale—in other words, their willingness to fight without disruption—could not be taken for granted, that African American officials had any power to shape policy at all.

This chapter examines the transposition of the rules of political mobilization in San Francisco, California during the Civil War. It traces the ways in which the rights revolution of the Civil War unleashed the genie of social groups from within the republican logic of tyranny, dependence, and corruption by analyzing the careers of representative party leaders and their methods of mass mobilization. The chapter highlights the conversion of race from an identity of exclusion from citizenship into a fault line of mobilization within citizenship.

This chapter explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living constitution: the commitments “hammered out” through the processes of popular sovereignty during the Civil Rights Revolution. This chapter reconstructs Ackerman’s living constitutionalism as a moral reading in which faithful interpretation requires normative judgments about the best understanding of the constitutional commitments that have been built out over time.

This chapter considers three impulses of the post-World War II era. Two of them deal with the economy, bracketing its course from an inspiration flowing out of the war through an ideological and policy retake a generation later. The other impulse covers one of the major developments of American, not to mention transnational, history—the civil rights revolution of those times. In the three impulses detailed here, economic planning devices, energy supply, the cities, travel, infrastructure, the tax code, industrial structure, the workplace, immigration, demographic patterns, the electorate, rights standards, and relations among the races, gained lasting imprints from U.S. government participation, among others.

Being a realist about human rights requires a sober understanding of the dynamics of power. Yet conventional realist accounts of power, which relegate human rights to the margins of world politics, misunderstand power’s complexities. Rights revolutions have transformed world politics, not the least by driving the shift from empires to a universal state system. This chapter explains this more complex relationship between rights and power, drawing on recent theories of ‘protean power’, where it emerges from innovation under conditions of uncertainty. Uncertainty is ubiquitous in world politics, but is accentuated by meaning indeterminacy and institutional complexity, conditions that are inherent to the politics of rights. The chapter concludes by illustrating this argument with a critique of recent accounts of the post-1945 politics of human rights.

The realignment of the Solid South from a Democratic stronghold into a conservative bastion remains the most glaring example of liberalism's demise. For generations, specialists have understood that realignment came from the Civil Rights Revolution and the white South's (bigoted) reaction. Harold Ford, Sr.'s congressional career and the 1982 Voting Rights Act's inception of majority-minority districts complicate this tidy morality tale. In capturing a majority white congressional district in 1974, Ford reveals that biracial political coalitions were possible. Ford's wanton corruption destroyed any hopes of building upon his initial victory. In the same way, the 1982 Voting Rights Act, which created majority-minority congressional districts across the South also undermined opportunities to sustain already existing biracial coalitions. With black majority congressional districts moving left and white dominated districts swinging right, the region became more polarized. In this way, the South's realignment is more complicated than is commonly believed.

This chapter shows how much of the white South fought tooth and nail to preserve the racial caste system until blacks took to the streets and demanded change. National leaders found southern segregation an embarrassment in international relations. By the early 1960s, the civil rights revolution was gripping the land. Within the South, especially North Carolina, a few elected officials began to support more racial equality, some overtly and others covertly. The Civil Rights Act of 1964 ended legal segregation in public places. The Voting Rights Act of 1965 eliminated political stratagems that southern states had adopted to block African Americans from voting. Race remained a powerful undercurrent in politics. Yet over the decades, attitudes gradually began to soften.

The cultural transformations of the 1960s and 1970s created problems and opportunities for elites. In these decades the upper- and middle classes went from being seen as the wellspring of social virtue in Victorian culture to being perceived as repressed, stuffy, and out of touch; after all, they were the prime beneficiaries of a status quo that was now found wanting. From lording it over commoners in the eighteenth century, to loathing the dangerous classes in the nineteenth century, many elite New Yorkers came around to romanticizing African-Americans and other lower-class groups as exemplars of human spirit and social justice. These actions were in many cases genuine, yet in espousing civil rights causes and tackling discrimination and poverty, in exposing the falseness and superficiality of genteel society, upper-class New Yorkers also established their own heightened sensitivity as anti-elitists and their own legitimacy. Corporate elites thus championed achievement and diversity as the foundation of a more democratic, anti-elitist elite.