Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution

The Borders of Citizenship: The Politics of Race and Metropolitan Space in Silicon Valley

“Compelling action by authorities of the states through the power of mandamus is an inherent power vested in the judiciary,” said India's Prime Minister, but warned that “substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach…these are all delicate issues which need to be addressed cautiously.” Manmohan Singh was speaking at a conference of regional chief ministers and high court chief justices in April 2007. A similar point was made by a former Chief Justice of the Supreme Court in March 2007 who cautioned the courts on legitimate and illegitimate intervention; and also by the Speaker of the legislature who said, “I will be failing in my duty if I do not point out that there has been an encroachment in the legislative arena.” These cautionary words from the heads of the legislature, executive, and the judiciary imply that the Indian courts have not just been activist, but over-activist. Is that true? In the last two decades, the higher judiciary in India transformed non-justiciable economic and social rights such as basic education, health, food, shelter, speedy trial, privacy, anti–child labor, and equal wages for equal work into legally enforceable rights. In a famous judgment on the right to education, the judges even said that a right could be treated as fundamental even if it was not present in the fundamental rights section of the constitution.

Courting Social Justice: Courts and Socioeconomic Rights in India

This article traces the origins of affirmative action in post-New Deal liberalism. Both racial liberals and their critics used rights discourse to shape their demands for equality and security. Civil rights activists responded to the problem of racial discrimination through strategies of moral reform, education, and persuasion that emphasized universalistic goals of equality. Their efforts yielded numerous state fair employment practices laws in the 1950s that were seldom effective. When antidiscrimination laws failed to desegregate labor markets, many Black activists called for more radical change. When the federal government began to demand racial preferences in the workplace during the mid-1960s, White opponents of racial equality recast their opposition in the same universalistic rights language that civil rights activists had used in the 1940s and 1950s. The result was an impasse that continues to shape the debate over affirmative action.

The Tangled Roots of Affirmative Action

What is the point of constitutional government in the United States of America? It is the eventual redemption in history of the principles of our founding document. I do not mean the written Constitution of 1787. I mean the Declaration of Independence of 1776. American constitutionalism is and must be a commitment to the promises the Declaration makes about our future as a people. Our country sprang forth from a revolution in political and social structure. The Declaration explains the point of that revolution, and hence the point of our constitutional enterprise.

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1257&context=fss_papers

The Declaration and the Promise of a Democratic Culture

In the landmark 1971 case of James v. Valtierra, the Supreme Court ruled that municipalities could block housing for the poor, bolstering a trend toward exclusionary zoning and economic segregation...

Why Is This Rights Talk Different from All Other Rights Talk? Demoting the Court and Reimagining the Constitution

Citations

The Borders of Citizenship: The Politics of Race and Metropolitan Space in Silicon Valley

Courting Social Justice: Courts and Socioeconomic Rights in India

The Tangled Roots of Affirmative Action

The Declaration and the Promise of a Democratic Culture

A Right to Housing in the Suburbs: James v. Valtierra and the Campaign against Economic Discrimination

Related Papers (5)

Protecting Constitutionalism in Treacherous Times: Why 'Rights' Don't Matter

The European Court of Human Rights: What It Is, How It Works, and Its Future

The Legal Protection of Human Rights: Sceptical Essays

Protecting rights: how do we stop rights and freedoms being a political football?

Evans v. UK – European Court of Human Rights