Book manuscript (under contract with Cambridge University Press)
Christina’s book manuscript, Republican Constitutionalism and 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.
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.
Articles
Horizontal Rights: A Republican Vein in Liberal Constitutionalism. Polity, Volume 52, Issue 3, July 2020, Pages 401-429, DOI: 10.1086/709494. View article online.
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.
“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.
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.
The Past, Present, and Future of Constitutional Identity in Deciphering the Genome of Constitutionalism: Essays on Constitutional Identity in Honor of Gary Jacobsohn (with Connor Ewing), Ed. Ran Hirschl and Yaniv Roznai. Forthcoming.
We identify two potent contributions of the concept of constitutional identity, underscoring and exploring its relationship with the associated ideas of disharmony and difference. We first discuss the relationship between constitutional identity and constitutional development, before turning to lessons that the concept of constitutional identity offers both scholars and practitioners. Against this background, we then identify three promising areas for future scholarly reflection and briefly sketch the first steps of a research agenda oriented towards carrying forward the project limned in this volume. Inspired by the analytic purpose underlying the concept of constitutional identity, our comments in this section are intended to be less prescriptive than interpretive. The scholarly futures we discuss emerge as much from the political world in which constitutional governance must now proceed as from the progress that scholars have made towards understanding the aspirations of that enterprise.
The Promise of Virtue, Old and New: On Building Bridges in Contemporary Politics. Forthcoming in Political Science Reviewer.
In response to communitarian critiques, liberal theorists have argued that liberal thought and politics is not neutral, but rather depends on certain liberal virtues. Can such theories of liberal virtue respond to today’s post-liberal and progressive critics of liberalism? This paper argues that as long as theories of liberal virtues hold autonomy as their animating principle–while remaining agnostic on questions of the human good–they are ill-equipped to respond to today’s critics of liberalism. In contrast, earlier instances of liberal thought, such as those we find in many American founders’ thinking, build on the fundamentals of classical virtues, a position that coheres well with much of postliberal thinking. These liberal-classical accounts of virtue, I argue, offer a more thorough justification for liberalism to those who find themselves outside the liberal tent. The paper concludes by addressing various objections to these kinds of virtues, including the position that advancing any virtues is coterminous with authoritarian perfectionism and paternalism. In sum, liberals today would do well to look beyond a neutral or subjective autonomy, unsatisfying to several powerful movements within our society, and advance a broader conversation about human virtue.
The Blame Game: Elite Incentives to Constitutionalize the Private Sphere. (with Maureen Stobb). In progress.
Prior research indicates that constitution-makers transfer power to courts for insurance— future protection of their rights against political opponents who may assume power. This logic fits the decision to place constraints on government action, but not the increasing trend to apply constitutional duties to private actors, holding them liable for rights violations. Existing scholarship on the application of duties to private actors examines this practice in popular efforts to promote more democratic societies and broader rights protections. We instead identify conditions under which political elites would choose to empower the courts in this manner. We argue the application of duties to private actors is worthwhile to political elites in order to deflect blame for the country’ problems onto private actors and courts that may (or may not) enforce these new duties. Such elite maneuvering threatens significant implications for the legitimacy of courts and may exacerbate existing popular-elite divides.