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Fall 2021 Seminar

Human Rights in Transformative Constitutionalism

Prerequisite: None

Exam Type: No Exam

This seminar explores the role of human rights in the constitutionalism of the Global South. The post-Cold War democratization wave in the Global South adopted constitution-making as one of the markers of a state’s transition to democratic governance. Since then, scholars have used the term transformative constitutionalism to distinguish between the traditional liberal constitutionalism of the North and a post-liberal constitutionalism of the South. The new constitutions enacted in the Global South, from Africa to Latin America, and the judicial activism that followed, have sought not only to establish a rule-of-law order, but also to change political institutions and power relations to reflect peoples’ aspirations for a more democratic, participatory, egalitarian and multicultural order.

How have the liberal and post-liberal elements coexisted in transformative constitutionalism? Economic and social rights have occupied a central role in the constitutions enacted in the Global South, how have these rights intersected with traditional civil and political rights? Has the emphasis on collective self-determination and substantive equality undermined democratic pluralism?

Our focus will be on the aspiration for social change at the basis of transformative constitutionalism. We will therefore focus on economic and social rights. How have these rights been constitutionalized? What is the place of international human rights treaties in these constitutions? Have rights to health, education, housing, food or water brought about social justice? How do different mechanisms of enforcement and justiciability shape the realization of economic and social rights? Can we recognize constitutional mechanisms other than economic and social rights to produce egalitarian transformations?

This seminar will explore these and other questions comparatively. On the one hand, we will examine the constitutional trajectories of countries that have been, since the 1990s, considered examples of transformative constitutionalism, like South Africa, India, Brazil, or Colombia. On the other hand, we will study these questions in relation to a current constitutional process. In Chile, a Constitutional Convention is now working on a new text that will replace the country’s authoritarian, neoliberal constitution. We will look at the translation of egalitarian demands into the new text and specifically at the inclusion of economic and social rights. Throughout the semester, we will interact, and potentially, collaborate with members of the Constitutional Convention.

Students will complete four short papers in response to course readings, and a longer paper at the end of the course. Alternatively, students may substitute the longer paper with two memos on constitutional questions relevant to a member of the Convention.