Progressive Constitutionalism

Reconstructing the Fourteenth Amemdment

Progressive Constitutionalism

Constitutional Conflicts

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Book Pages: 368 Illustrations: Published: December 1994

Author: Robin L. West

Law > Legal Theory, Politics > Political Theory

The Fourteenth Amendment guarantees all citizens equal protection 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 private 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 equal protection against private domestic violence, permitting a "private sovereignty" of patriarchal power within the home, to the the state’s failure to provide equal protection against material deprivation, allowing "private sovereignty" between economically privileged and desperate people in private markets.
West’s argument extends to the "liberty" prong of the due process clause, seen here as a protection 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.


"This book will be an extremely important and influential contribution to the literature. Readers will find the book of great help in understanding the important differences between various strands of constitutional and interpretative theory." — Mary E. Becker, University of Chicago Law School

"West takes on the challenge of developing a transformational constitutionalism with great energy, eloquence, and intellectual integrity. Her argumentation throughout is forceful, clear, well-reasoned, and at the same time gives the sense of being driven by passionate commitments crystallized into broad principles. It is an exciting combination, and it makes an exciting book, one that should find a wide and ready audience." — Thomas C. Grey, Stanford Law School


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Author/Editor Bios Back to Top

Robin West is Professor of Law at Georgetown University Law Center, where she teaches and writes in the fields of constitutional law, feminist legal theory, and law and literature. She is the author of Narrative, Authority, and Law.

Table of Contents Back to Top
Introduction 1

Part I. Equal Protection of the Laws

1. Toward an Abolitionist Interpretation of the Fourteenth Amendment 9

2. Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment 45

3. The Meaning of Equality and the Interpretive Turn 73

Part II. Due Process of law

4. Reconstructing Liberty 105

5. The Ideal of Liberty 129

6. Toward a First Amendment Jurisprudence of Respect 144

Part III. Institutional Responsibilities

7. Constitutional Skepticism 155

8. The Authoritarian Impulse in Constitutional Law 190

9. Progressive and Conservative Constitutionalism 211

10. The Aspirational Constitution 290

Notes 319

Index 355
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Cloth ISBN: 978-0-8223-1525-4
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