Christina’s dissertation, Horizontal Rights: Constitutionalism and the Transformation of the Private Sphere, studies shifting understandings of public and private in comparative constitutionalism, specifically in the United States, Germany, India, South Africa, and the European Union. Jurists have traditionally understood the constitution as a separate kind of law that obligates only the state. However, courts increasingly understand constitutions as creating obligations for private entities such as private individuals, businesses, schools, and hospitals. For example, the South African Constitutional Court decided in 2017 that landlords have a constitutional duty to ensure their tenants live in conditions consonant with human dignity. Similar questions arise even in the United States, which historically has resisted the idea that constitutional rights bind private individuals. Recently, the Supreme Court found itself asking whether a Christian baker must bake a wedding cake for a same-sex couple. The practice of applying rights “horizontally” to private actors raises a range of questions from the theoretical to the practical and from the jurisprudential to the political.
Christina draws on constitutional debates, court cases, and political histories to argue that this development of horizontal effect reflects a republican intervention (as in, classical republican political theory) in constitutionalism, so altering the politics surrounding rights accordingly. While the conventional liberal narrative emphasizes the rights of individuals, horizontal effect builds a catalogue of individual duties as well, corresponding to the commitments and aspirations of a given constitutional order. In addition to examining constitutional histories, therefore, this research draws on classical and contemporary republican political theory.
Supported by University of Texas Graduate School Fellowships, this project is the first sustained effort to understand the practice of horizontal effect in terms of political theory, and only the second comparative monograph in political science on the subject. In accounting for the practical power of constitutional politics to shape the rights and duties of private entities, this research contributes to our knowledge of how governments act on conceptions of public and private in an increasingly pluralistic world.
“Neither Precisely National Nor Precisely Federal”: Governmental and Administrative Authority in Tocqueville’s Democracy in America. Publius: The Journal of Federalism, Volume 48, Issue 4, 1 September 2018, Pages 586–606, DOI: 10.1093/publius/pjy030. View article online.
Abstract: Tocqueville’s insights on local politics in Democracy in America have led some scholars to ask where he fits into longstanding debates about the balance of power between the national government and state governments in American constitutionalism. Although Tocqueville’s observations speak to these questions, he also transcends them by developing the concepts of governmental and administrative (de)centralization. In differentiating governmental and administrative capacities, Tocqueville offers language by which to understand and evaluate the federal system in terms of the nature of the authority each level of government exercises, rather than simply by the objects of national, state, and municipal powers. The purpose of this article is to clarify Tocqueville’s understanding of governmental and administrative (de)centralization and thereby contribute to a better understanding of political authority in the American federal system.
Horizontal Rights: A Republican Vein in Liberal Constitutionalism. Forthcoming in Polity. View working paper.
Abstract: While liberal constitutional theory typically understands constitutions as establishing vertical arrangements in which governments protect individual rights, some courts have introduced doctrines of horizontal effect, holding private bodies responsible for the rights of others, as well. This article argues that we can understand such horizontal rights as a republican vein in the tradition of liberal constitutionalism. While the conventional liberal narrative emphasizes the rights of individuals, horizontal effect builds a catalogue of individual duties as well, corresponding to the commitments and aspirations of a given constitutional order. This article draws on classical and contemporary republican political theory, as well as cases from Germany, India, and South Africa, to demonstrate how the structure of and arguments for horizontal rights reflect proclivities and track commitments associated with republicanism. Though the fact of a republican streak in these rights need not make them antithetical to existing understandings of constitutionalism, it does admit the distinctive potential of horizontal rights to alter elements of the conventional narratives, about the nature, purpose, and limits of constitutionalism.
The Politics of Public and Private: Equality in India and the United States. In progress.
Abstract: This paper examines the application of constitutional rights to non-state actors in India and the United States. Both countries have at some point maintained systems of social stratification, and ultimately rejected such systems through constitutional commitments to equality. Although both India and the United States have sought to bring the principle of equality to bear on the private sphere, the U.S. Supreme Court has largely waited on Congress to bring this change through statutory law, while the Indian Supreme Court has employed its own power to interpret constitutional principles.
Though the courts of each country remain committed to both the principle of equality and the idea of separate public and private spheres, therefore, their practices in applying rights horizontally to private agents clearly differ. I look beyond the strictly jurisprudential to examine the concepts and politics at work as courts decide questions of public and private. Indeed, I argue that the legal doctrines of both countries similarly leave essential questions unanswered and so admit wide discretion of judges to employ reasoning external to the letter of the law. Still, U.S. and Indian doctrinal requirements are importantly different in their presuppositions and in the way they frame the questions courts must ultimately answer.