ItemOrdinary Subjects of Tyranny: Practical Constitutionalism and Public Judgement in the Political Thought of George Buchanan(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-06) Lundy, TimothyThe influence of democratic ideas on the political thought of sixteenth- and seventeenth-century Europe is often considered in relationship to history, theology, and law, but less often in relationship to poetry. For this reason, poetry offers unexplored resources for thinking through the value of public deliberation and judgment, even under decidedly non-democratic constitutions. In this paper, I examine the political thought of the Scottish humanist George Buchanan (1506–82) in the context of his philosophical dialogue De iure regni and his Biblical tragedy Baptistes. Buchanan’s political thought was recognized as radical in its own day for the strong limits it placed on monarchical power and prerogative and the authority it vested in the people to restrain kings and depose tyrants. I argue, however, that what is most interesting for the history of democracy—as well as for political thought today—is Buchanan’s development of arguments for the judgment of the common people as a privileged site of political insight and, by extension, for the practical value of public deliberation and transparent government. ItemThe Unhappy Marriage of ‘Queerness’ and ‘Culture’: The Present Implications of Fixating on the Past(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-10) Gupta, ArtiIn September 2018, the Supreme Court of India in Navtej Johar v. Union of India, decriminalised consensual same-sex sexual activities by reading down Section 377 of the Indian Penal Code. A significant aspect of the Court’s reasoning was that Section 377 was an embodiment of ‘Judeo-Christian’ morality and a colonial imposition. In providing that reasoning, the judgment does not stand alone. For a long time, various revisionist accounts of religious texts and scriptures have been presented to argue that ancient ‘Indian culture’ had been tolerant towards non-normative sex and gender, and ‘homophobia’ was simply a British imposition. Such revisionist arguments had initially been put forth by Indian queer rights groups to nullify the orthodox homophobic attitudes, which rested on the claim that homosexuality is alien to ‘our culture’. However, this article argues that there has been an increasing cooptation of such accounts by dominant Hindu Right groups for their political ends. This article also shows that such reliance on the past (through scriptures or otherwise) to confer legitimacy on the present can have the effect of constraining the radical potentialities of that past. At the end, this article argues for a turn towards the future, which, creating new solidarities, can become a horizon of possibilities. ItemCritical Reflections on the Structural Legal Power in Human Rights Law(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-03) Hajyahia, AlaaIn Europe, a wide range of religion-based practices have been at the center of public debate over the last two decades. This paper focuses on one such practice: the wearing of Islamic veils in public spaces in Europe. Through one representative case study, I explore how the Muslim woman is constructed by the European Court of Human Rights. I offer a diagnosis of the Court’s ontological position, which, I argue, is shared by the Court’s legal–feminist critics. Later, I turn to the fields of cultural sociology, social anthropology, hermeneutics, law, and political theory to develop an ‘alternative ontological position’, a position that situates Muslim women as neither ‘political’ nor ‘suffering’ others, but as morally evaluative humans distinctly and deeply informed by their unique cultural experiences. Having set forth that alternative position, this paper argues that in cases involving Muslim women, the determinations of the European Court of Human Rights, serve to – both actively and passively – maintain, protect, and enforce white power and control as defined by critical race scholars, all under the guise of gender equality. ItemThe Legal Impact of COVID-19 on Women's International Human Rights: Analyzing the #NiUnaMenos Movement in Latin America(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-04) Gretzinger, FabiolaThis paper details the history and successes of the #NiUnaMenos movement, and subsequently the Marea Verde (Green Wave) movement, throughout Latin America. After the COVID-19 pandemic, there has been a massive increase in domestic violence and gender-based violence rates throughout the region. Similarly, the United States just stripped women of their constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. This evidences how important this movement is throughout Latin America, and for the rest of the world, to understand how social, political, and legal movements can continue to protect women’s rights. Comparing successes and setbacks both before and after COVID-19, this paper establishes how governments and movements alike should proceed to ensure women’s rights are strengthened and protected. ItemPlain Reading the Constitution: Frederick Douglass, Textualism, and the Pursuit of Racial Justice(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2023-02) Brush, EmmaIn the legal imagination, Frederick Douglass is often viewed as a “constitutional utopian” for his efforts to salvage the prewar Constitution with an antislavery construction. Rejecting the views of both the Taney Court and the followers of William Lloyd Garrison, who saw the Constitution as “a covenant with death, and an agreement with hell,” Douglass and other political abolitionists put forward a redemptive view of the Constitution rooted in both the letter and the spirit of the document. For Douglass, the fierce contest over constitutional meaning suggested the amenability of the Constitution’s “plain meaning” to abolition and the importance of wresting political power, and thus interpretive power, from pro–slavery forces. The long–term potency of Douglass’s adaptive, literalist, and purposive method suggests the importance of his constitutional interpretation for formulating a racial justice jurisprudence today. The textualism practiced by the current Supreme Court, however, poses multiple challenges to the pursuit of that same goal. The questions that occupied Douglass’s day—whether and how to embrace a document tied to foundational injustice—have come to swirl not only around Douglass’s legacy but also around contemporary questions of constitutional theory, particularly pertaining to the relation of the text and textual interpretation to racial justice. In this paper, I will argue that Douglass’s textualism offers progressive constitutionalists a theory of interpretation that meets originalism on many of its own terms but also insists on a radically revised conception of constitutional meaning, one that centers racial justice first and foremost. ItemA Clean State for No One: The Need for Automatic Expungement Policies(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-03) Hiestand, MichaelIn the United States, the “collateral consequences” of a criminal record extend far beyond the period of physical detention. These disadvantages fall disproportionately on the shoulders of people of color, and on Black Americans in particular. Among the numerous policy mechanisms aimed at alleviating these collateral consequences, expungement – the extraction and isolation of official criminal records from public access – stands out as particularly promising in that it promises to provide criminalized individuals a “clean slate.” However, the emerging literature on the uptake rate of expungement policies in their current, petition-based state has been far from encouraging. This paper provides a critical race perspective to this emerging literature through a comparative analysis of expungement policies in New Jersey and Alabama. This analysis reveals that existing expungement policies are not simply ineffective; they are also active contributors to the racial disparities in the impacts mass incarceration. This paper concludes by suggesting that the only equitable path forward for expungement is to follow the lead of New Jersey and other states by providing expungement automatically to those who qualify. ItemPrecarity Capitalism and the Global Value Chain in Beef: The Plight of Meatpacking Workers at JBS Greeley(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2022-02) Fossum, JohnOf the many jobs categorized as “essential” during the first wave of the COVID-19 pandemic, the continued operation of American meatpacking plants stood out. This work was 1) unrelated to critical healthcare services, 2) primarily staffed by minority and immigrant workers, and 3) conducted in conditions that seemed ideal for the coronavirus’ spread. Why and how did meatpacking facilities then remain open through the spring and summer of 2020, despite the proliferation of facility-linked COVID-19 hotspots and worker deaths? Drawing from authors of legal theory on racial capitalism, self-regulatory behavior by transnational corporations, and “precarity capitalism,” this paper builds context for this phenomenon through a case study on JBS USA Beef in Greeley, Colorado, the flagship facility for the American branch of world-leading meat producer JBS S.A. based in Brazil. It frames the protracted battle over production and worker safety as a standoff between workers of minority racial status, in precarious economic and labor conditions, and a winning coalition of powerful political and corporate stakeholders invested in the global value chain in beef. ItemBetween Intra-Group Vulnerability and Inter-Group Vulnerability: Bridging the Gaps in the Theoretical Scholarship on Internal Minorities(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Zucker, MiriamThe scholarship on internal minorities has generated different proposals for addressing concerns about the oppressive impacts of minority cultures’ practices on their more vulnerable members. Critical reflection on this scholarship reveals that it is characterized by a rigid binary choice between an interventionist approach—seeking to eradicate cultural practices that contradict liberal values and norms—and a laissez-faire approach that rejects interference in cultural minority communities’ affairs and instead relies on the right of minority members to exit their community. Despite these two approaches dominating the scholarship, both options under this binary are detached from the interests and needs of minority women. Rarely do women and girls benefit from putting their family members in jail under the interventionist approach, while leaving the community under the laissez-faire approach is either impossible or undesired (or both) because it often requires the individual to “leave her whole world behind.” This paper demonstrates that this binary stems from the fact that scholars have not accounted for the role of the state in the problem of intra-group vulnerability, and illuminates how when one does, one notices other options that better align with women and girls’ interests and needs. ItemDuty to Disobey: Modernism, Autonomy, and Dissidence in the Global 1930(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Saikumar, RajgopalThis essay constellates a set of modernist texts to pursue a question predominantly considered the provenance of legal philosophical studies, namely, a one’s obligation to obey the laws of the state that one belongs to, and its corollary concerning the subject’s autonomy and their duty to disobey unjust authority. By providing examples from the Black radical tradition (Zora Neale Hurston’s 1931 Barracoon), European antiwar pacifism (Virginia Woolf’s 1938 Three Guineas) and South Asian anti-colonial thought (M. K. Gandhi) in the interwar years, I explore heterodox conjugations of commitment (duty, bond, fidelity, attachment etc.) and disobedience (breach, withdrawal, betrayal, insurgence etc.) to juridical authority. ItemAn Ethos of Restitution: Walter Schwarz and the Gloss(The Bernard and Audre Rapoport Center for Human Rights and Justice, 2021) Petersen, LauraBerlin, 1950s. Newly arrived back in Germany after escaping from the NS regime, a Jewish lawyer called Dr Walter Schwarz settles in Berlin. He opens a law practice assisting clients who are making private restitution claims. But Schwarz is not only a lawyer; he is a passionate writer: a jurist. This paper focuses on his writings in the professional journal of restitution, which are in the form of “glosses.” Generally appearing in the margins alongside neutrally worded case notes, these glosses are short, rhetorical commentaries, which often take literary forms. Schwarz uses the gloss, literally situated in the margins of law, as a genre which can return a human dimension to what became a rigid and bureaucratic process. Through his performative language and attention towards the conduct of legal practice, I argue Schwarz’s glosses offer a different ethos of restitution in the aftermath.