Title: Progressive constitutionalism: reconstructing the Fourteenth Amendment
Abstract: The Fourteenth Amendment guarantees all citizens under the law as well as immunity from laws that deprive them of life, liberty, or property without due process of law. In Progressive Constitutionalism, Robin West develops an interpretation of this amendment that contrasts with the views, conservative and liberal, of the Rehnquist, Burger, and Warren Courts, and with the radical antisubordinationist account provided by the critical legal studies movement and many prominent feminist and critical race theorists. Her interpretation consists of a substantive argument regarding the Amendment's core meaning, and a jurisprudential argument regarding the role of the courts and Congress in fulfilling the Amendment's progressive promise. West shows how the equal protection clause, far from insulating the spheres of culture, market, and home life, as is commonly held, directly targets abuses of power within those spheres. She develops a number of arguments for the modern relevance of this understanding, from the failure of the state to provide against domestic violence, permitting a private sovereignty of patriarchal power within the home, to the the state's failure to provide against material deprivation, allowing private sovereignty between economically privileged and desperate people in markets. West's argument extends to the prong of the due process clause, seen here as a of the positive, not negative, liberty of citizens, covering rights in such typically controversial areas as welfare, education, and domestic safety. This interpretation recasts a number of contemporary constitutional issues, such as affirmative action and hate speech, and points to very different problems-notably private, unchecked criminal violence and extreme economic deprivation-as the central constitutional dilemmas of our day. Progressive Constitutionalism urges a substantive, institutional, and jurisprudential reorientation of our understanding of the Fourteenth Amendment, one that would necessarily be pursued through Congressional rather than judicial channels. In doing so, with attention to history and both feminist and critical race scholarship, it should reinvigorate our politics and our constitutional conversations-and, perhaps, point us toward a more just society.
Publication Year: 1995
Publication Date: 1995-05-01
Language: en
Type: article
Indexed In: ['crossref']
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Cited By Count: 16
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