The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.

This chapter shows that constitutional intolerance is not only about religion or ethnoreligious identities. Much like ethnic and religious identities, LGBT identities have been subject to the regulation of their visibility in public space. This chapter discusses the anti-genderism of the Law and Justice party in relation to the hyphenation of Polish-Catholic identity and the historical role of the Catholic Church in promoting Polish independence, as well as the instrumentalisation thereof towards political polarisation in its domestic and European context. This chapter does not focus on the toolkit of illiberalism per se, but on the pseudo-constitutional anti-LGBT resolutions, declarations, and Family Charters targeting LGBT identities. A collaboration between the Law and Justice party and a think-tank called the Ordo Iuris Institute accounts for the first wave of this backlash, which invoked the constitution and legal language to allude to a semblance of constitutionalism.

This chapter explores the impact of science and technology’s objectifying gaze on society, Culture, and politics throughout history. It discusses how this gaze has turned the world into an object and humans into observers, diminishing moral, psychological, and political aspects. The chapter analyzes the duality of objectification, which renders man-made objects external despite embodying human values and actions. It examines the Industrial Revolution as a pivotal historical context where technology was seen as a mark of progress and an embodiment of objective Nature. Eventually, the human choices and interests behind technology were exposed, leading to the reconsideration of technologies from ethical, economic, political, and aesthetic viewpoints. The chapter also points to the ambivalence surrounding technology, including both fear and admiration, and how the disillusionment with technology has impacted the democratic epistemological framework. Additionally, it discusses the influence of philosophers-scientists like Descartes and Newton on modern dualistic cosmology, highlighting how science and technology have shaped various socio-political fields such as law, medicine, economics, and political science.

This chapter provides a rough summary of how the United States came to be a federation of states rather than a unitary nation. To that end, it offers a thumbnail sketch of the timeline from the British colonial period to adoption of the US Constitution. The debates at the constitutional convention and the advocacy in both the Federalist and Antifederalist Papers are highlighted, with particular emphasis on the role of state sovereignty and the menu of choices that were open to the framers.

This is the first of two chapters that relate the myriad ways in which state government has impeded true democracy in the United States. In this chapter, the focus is on those counter-majoritarian distortions that are hardwired into the Constitution. These structural barriers to majority rule include equal representation of small states and large states in the US Senate; the Electoral College; the constitutional provision under which a majority of state delegations to the US House of Representatives choose the president when there is no Electoral College majority; and the processes for appointing federal judges and amending the Constitution.

This chapter traces Ottoman responses to the challenge of Europe’s rise and global hegemony – responses that engendered two emergent properties: religious disenchantment and growing resentment at the loss of Muslim primacy. These properties informed new political programs in the buildup to and during critical junctures. Milestones included the Tanzimat (1839) and subsequent, Young Ottoman reforms led by bureaucrats and intellectuals. The result was a framework for multicultural citizenship – an Islamo-liberal project. It bore fruit in the first Ottoman constitution (1878), but was soon suspended by Sultan Abdülhamid II (r.1876–1908/9) who instead developed (pan-)Islamism as a political program. His authoritarian rule, in turn, spurred a coalition of liberal and proto-nationalist Young Turks to revolt (1908), launching the “second constitutional period.” The revolution was then captured by an illiberal Triumvirate espousing a more unitary, proto-nationalist project. No linear or teleological process, the chapter reveals that contests were driven by the complex interplay of ideas, actors, and contextual pressures. These forces informed a new menu of programs for managing religion and diversity that would outlive the empire itself: Islamo-liberalism, liberalism, Islamism, and Turkism.

The process of constitutionalizing intellectual property rights highlights absurdities associated with unequal and asymmetrical power relations within the politics of intellectual property and exposes the inherent conflicts between international legal harmonization and unbalanced trade powers in intellectual property constitutionalism. This chapter begins by demonstrating the gap between the mere existence of a constitutional equality provision and its application on the ground. The chapter then examines how inequality is a defining concept in intellectual property that can be articulated in many forms. It discusses intellectual property constitutionalism and highlights the lack of scholarly attention to intellectual property in formal constitutions and the implications. This chapter further demonstrates the incorrect assumption that adding intellectual property rights to a constitution will provide better protection for these rights and discusses how this assumption is predominantly a result of global political inequality and asymmetrical power relations. The chapter evaluates the ideological motivations of countries to adopt intellectual property as a socio-economic right in their formal constitutions. It further introduces and empirically analyzes the results of the collected data. This chapter concludes by discussing the inequality-related consequences of unbalanced constitutional commitments in the intellectual property area.

The chapter discusses constitutional rules on political and electoral systems and political parties. While constitutions in Anglophone African countries are maximalist, Francophone Africa countries tend to be constitutionally minimalist on electoral and political party regulation, leaving key aspects of electoral systems for presidents, legislature and election management bodies to statutory regulation, which has led to instances of controversial and regressive reforms. Despite the differences, however, the relevant constitutional rules have remained relatively stable, and democratic backsliding often happens through irregular processes and legal reform, rarely through constitutional change, except presidential term limits. Fundamentally, the chapter argues that the winner-takes-all nature of politics constitutes the principal scourge of democratization in Africa, incentivizing attempts to manipulate and violate electoral and party rules. Accordingly, to enable progress in constitutional democracy, ensure stability of the rules of the game, and preclude abusive changes, constitution makers should recognize the manifestations of and tackle winner-takes-all politics, including through the recognition and empowerment of opposition groups.

The national populism of the Brexit movement builds up its political worldview on the basis of an ethnocentric myth of continuous homogeneous British nationhood. This was a construct of the imagination that included nostalgia for lost British empire. It was tightly bound up with the Brexiters’ concept of ‘the people’, which brought into their campaign rhetoric the idea of ‘the will of the people’ and ‘the mandate of the people’, as well as ideas from social contract theory. ‘The will of the people’ was a phrase that ran throughout Brexitspeak, deployed by the ex-Remainer Theresa May and ardent Leavers alike, and backed up by the populist press. Brexitspeakers knew what the people’s will was, by implication at least. And the claim that this ‘will’ gave the government an unquestionable mandate followed automatically, despite the narrow margin by which the Leavers had won, and despite the fact that before it the result had been defined as ‘advisory’ only. There was also the question of who precisely constituted ‘the people’ at the referendum, for there were important groups of potential voters who were excluded by the Brexiter-influenced Referendum Act.

This chapter will address the various peoples, polities, individuals, movements, and the social-political and economic conditions of Nigeria before the colonial era (1900). It will also go over the processes that spurred ongoing transformations in the complex patchwork of political, cultural, and religious entities that dominated what is known today as Nigeria. This chapter names five principal events as the primary catalysts for these transformations. They are the abolition of the slave trade and the switch to legitimate trade; the Sokoto Jihad; the decline and eventual collapse of the Old Oyo Empire; freed captives returning from Sierra Leone along with the arrival of missionaries; and the advent of colonial rule. These events would result in an environment of instability which gave way to new powers prompted by shifting demands from an increasingly industrialized and interconnected world. The chapter explores the social and economic shifts that resulted from these political changes and how these social and economic processes impacted the political changes in question. Finally, the chapter gives specific examples of lifestyle changes experienced by millions during this period, such as changes in clothing, religious practices, and diet.

This chapter explores political developments in the Republic of Vietnam (RVN) from the coup against President Ngô Đình Diệm in November 1963 to the consolidation of General Nguyễn Văn Thiệu’s power as president in late 1968. The dominant feature of politics in the RVN during this time was the monopolization of political power by a divided military. But noncommunist civilian groups challenged military rule in the form of street protests, armed rebellion, and constitutional assemblies, forcing the military to accede to elections and the return to constitutional government in 1967. These changes created limited opportunities for competitive politics but also granted a veneer of legitimacy to military rule as Nguyễn Văn Thiệu won election and outmaneuvered his rivals within the armed forces. The chapter addresses the powerful influence that the United States, as well as historic faultlines in Vietnamese noncommunist nationalism such as religion, regionl and differing experiences of colonialism and communism, exercised on RVN politics. The chapter contends that the RVN was both an outpost of the American empire and a site of febrile postcolonial politics.

This chapter explores symmetry’s implications for the law of democracy. Symmetry has obvious relevance in this area, given the centrality of election-related disputes to maintaining courts’ political neutrality. At a minimum, symmetric interpretation should encourage the Supreme Court to ensure greater consistency in its emergency orders blocking legal changes before an election. In addition, symmetry may help justify the Court’s controversial decisions leaving both partisan gerrymanders and choices about overall districting procedures to the political process. In combination, if not in isolation, these rulings are symmetric because they avoid constitutionalizing one position or the other on politically charged questions about appropriate criteria for districting. Finally, symmetry should support closer scrutiny of voting rules and procedures with skewed partisan effects, provided that challengers can convincingly establish a meaningful impairment of political competition.

This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

This chapter refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

This chapter addresses symmetry’s implications for expressive freedom and religious liberty. Symmetry supports maintaining First Amendment law’s current focus on neutrality, notwithstanding emerging critiques that this approach lacks a strong historical foundation and unduly limits governmental regulation of offensive or dangerous ideas. At the same time, symmetric interpretation counsels against expanding the emerging “First Amendment Lochnerism” that threatens to extend constitutional protections for free expression into areas of economic and workplace regulation. A preference for symmetry also supports protecting religious groups, when possible, through more general protections for freedom of expressive association rather than through religion-specific constitutional doctrines. Although religious liberty may once have been a symmetric principle, today religion-specific protections risk placing constitutional law on one side of a fraught political divide over religion’s place in public life.