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Index
Discourses of Law
Contents
Acknowledgements
Introduction
PART ONE Why Constitutional Identity and for Whom?
CHAPTER 1 The Constitutional Subject: Singular, Plural or Universal?
1.1 Who Is the Constitutional Subject?
1.2 Constitutional Identity and the Dynamic Between Sameness and Selfhood
CHAPTER 2 The Constitutional Subject and the Clash of Self and Other: On the Uses of Negation, Metaphor and Metonymy
2.1 The Constitutional Self and the Clash Between Self and Other
2.2 Construction, Deconstruction and Reconstruction of Constitutional Identity
2.3 The Constructive Tools of Constitutional Discourse: Negation, Metaphor and Metonymy
2.3.1 Negation
2.3.2 Metaphor
2.3.3 Metonymy
2.4 Constitutional Discourse as Interplay Between Negation, Metaphor and Metonymy
2.5 The Constitutional Subject and the Potential Reconciliation of the Singular, the Plural and the Universal
PART TWO Producing Constitutional Identity
CHAPTER 3 Reinventing Tradition Through Constitutional Interpretation: The Case of Unenumerated Rights in the United States
3.1 Building and Differentiating Constitutional Identity
3.2 Setting American Unenumerated Rights Against Tradition
3.3 The Metaphoric and Metonymic Dimensions of Tradition
3.4 Reinventing Tradition Through Overdetermination: From the Sanctity of Marriage to the Dignity of Homosexual Sex
3.4.1 Griswold and the Metonymic Path from Marriage to Contraception
3.4.2 The Lockean Gloss on Griswold
3.4.3 Eisenstadt and Molding the Tradition to Encompass Non-Marital Heterosexual Sex
3.4.4 Roe and the Challenge of Fitting Abortion within the Reinvented Tradition
3.4.5 The Reinvented Tradition’s Contradictory Approaches to Homosexual Sex
3.4.5(i) Bowers: Drawing the Line at Homosexual Sodomy
3.4.5(ii) Lawrence’s Encompassing of Homosexual Sex within the Reinvented Tradition
3.5 The Reinvented Tradition and the Clash Between Liberalism and Illiberalism
3.6 The Reinvented Tradition and Reliance on Foreign Legal Authorities
3.7 Concluding Remark: Overdetermination and Blending Tradition and Counter-tradition
CHAPTER 4 Recasting and Reorienting Identity Through Constitution-Making: The Pivotal Case of Spain’s 1978 Constitution
4.1 Constitution-making in Context
4.2 The Place of Violence in Constitution Making
4.3 The Extraordinary Case of Spain’s Peacefully Pacted Constitution
4.3.1 The King as Repository of National and Constitutional Unity
PART THREE Constitutional Identity as Bridge between Self and Other: Binding Together Citizenship, History and Society
CHAPTER 5 Constitutional Models: Shaping, Nurturing and Guiding the Constitutional Subject
5.1 The German Constitutional Model
5.2 The French Constitutional Model
5.3 The American Constitutional Model
5.4 The British Constitutional Model
5.5 The Spanish Model
5.6 The European Transnational Constitutional Model
5.7 The Post-Colonial Constitutional Model
CHAPTER 6 Models of Constitution Making
6.1 The Revolution-Based Model
6.2 The Invisible British Model
6.3 The War-Based Model
6.4 The Pacted Transition Model
6.5 The Transnational Model
6.6 The Internationally Grounded Model
6.7 Constitutional Amendment, Revision and Reform
CHAPTER 7 The Constitutional Subject and Clashing Visions of Citizenship: Can We Be Beyond What We are Not?
7.1 The Theoretical Foundations of Modern Citizenship: Universal Equality within a Particular Nation
7.1.1 Historical Nexus Between Equal Citizenship and the Nation-State
7.1.2 Social Contract Theory and Modern Equal Citizenship
7.2 The Functional Dimension of Citizenship
7.3 The Identitarian Dimension of Citizenship and the Evolution from the Mono-Ethnic to the Multi-Ethnic Polity
7.3.1 The Feminist Case for Differentiated Citizenship
7.3.2 National Minorities and the Problematization of Differentiated Citizenship
7.4 Global Migration and the Decoupling of the Functional and the Identitarian Dimensions of Citizenship
7.5 Transnational Citizenship and Recasting the Dynamic between Function and Identity
7.5.1 The Case of EU Citizenship
7.5.2 The Changing Dynamic between EU and Member-State Citizenship
7.5.3 Transnational Citizenship Beyond the EU?
CHAPTER 8 Can the Constitutional Subject Go Global? Imagining a Convergence of the Universal, the Particular and the Singular
8.1 Constitutional Reordering in an Era of Globalization and Privatization
8.2 The Nexus between Human Rights and Constitutional Rights
8.3 Constitutional Patriotism as Transnational Constitutional Identity?
8.3.1 Constitutional Patriotism in Historical Perspective
8.3.2 Constitutional Patriotism in a Layered and a Segmented Transnational Legal Order?
8.4 Concluding Remarks: Reaching for the Transnational Constitutional Subject by Reconciling the Universal and the Singular Through the Plural
Notes
Bibliography
Index
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