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Affirmative Action Reconceived: a Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women

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Affirmative Action Reconceived: a Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women University of Pennsylvania ScholarlyCommons Publicly Accessible Penn Dissertations 2015 Affirmative Action Reconceived: A Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women Abdel Rahman Ford University of Pennsylvania, [email protected] Follow this and additional works at: https://repository.upenn.edu/edissertations Part of the Feminist, Gender, and Sexuality Studies Commons, Law Commons, and the Political Science Commons Recommended Citation Ford, Abdel Rahman, "Affirmative Action Reconceived: A Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women" (2015). Publicly Accessible Penn Dissertations. 1721. https://repository.upenn.edu/edissertations/1721 This paper is posted at ScholarlyCommons. https://repository.upenn.edu/edissertations/1721 For more information, please contact [email protected]. Affirmative Action Reconceived: A Comparative Study of Constitutional Precommitments to Group Preferences for Racial Minorities and Women Abstract The nation-state’s struggle with liberal individualism on the one hand and the recognition of group rights on the other is well documented in the literatures on constitutionalism, constitution-making, comparative politics and racial/ethnic relations. However, the manner in which this conundrum manifests in a state’s acceptance or rejection of affirmative action has been under-discussed. Traditional approaches to the study of affirmative action are inadequate because they tend to circumscribe the universe of policies and programs that may qualify as affirmative action by focusing only on certain groups, issue domains or countries. More specifically, current scholarship on affirmative action suffers from several substantive and methodological shortcomings: (1) a neglect of the constitutional foundations of affirmative action, (2) a fundamental definitional uncertainty when it comes to understanding what affirmative action actually is, (3) a lack of a clear analytical framework with which to classify various types of affirmative action policies, (4) a narrow focus on single-case studies, and (5) a paucity of inter-group and intra-group comparisons. To address these lacunae, this study focuses on constitutional precommitments to affirmative action. Prior to any substantive analysis, this study first proposes a consensus definition of affirmative action and develops a universal typology and sub-typology with which to categorize, analyze and compare affirmative action precommitments. Next, this study employs a large N comparative methodology to examine the constitutions of 30 countries and categorize affirmative action precommitments through the use of constitutional textual analysis and secondary source historical materials. Finally, this study compares affirmative action precommitments – both inter-group and intra-group – for racial/ethnic minorities and women across the sample. There are three principal substantive findings. First, although liberal individualism remains central to the constitution-making process, all cases exhibited constitutional acknowledgement of some form of group rights and/or preferences. Second, for various reasons, racial/ethnic minorities tend to fare better than women when it comes to the overall prevalence of preferential constitutional precommitments. Third, historical evidence suggests that both endogenous and exogenous political pressures, such as internal ethnic conflicts and global human rights movements, matter when it comes to racial/ethnic minorities’ or women’s chances of having affirmative action provisions included in constitutions during the constitution- making process. Degree Type Dissertation Degree Name Doctor of Philosophy (PhD) Graduate Group Political Science First Advisor Rogers Smith Keywords affirmative action, comparative law, constitution, democratization, minority rights, women's rights Subject Categories Feminist, Gender, and Sexuality Studies | Law | Political Science This dissertation is available at ScholarlyCommons: https://repository.upenn.edu/edissertations/1721 AFFIRMATIVE ACTION RECONCEIVED: A COMPARATIVE STUDY OF CONSTITUTIONAL PRECOMMITMENTS TO GROUP PREFERENCES FOR RACIAL MINORITIES AND WOMEN Abdel Rahman Ford A DISSERTATION in Political Science Presented to the Faculties of the University of Pennsylvania in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy 2015 Supervisor of Dissertation Signature _________________ Rogers Smith, Professor, Political Science Graduate Group Chairperson Signature _________________ Dissertation Committee Rogers Smith, Professor, Political Science Brendan O’Leary, Professor, Political Science Devesh Kapur, Professor, Political Science DEDICATION This dissertation is dedicated to all those who have helped me through this tumultuous journey and all of its unexpected twists and turns. Completion of this dissertation was made uncertain as a result of the onset of serious health concerns. Over the years, there were many times that I thought it would be best to leave Penn without finishing. Fortunately, with the encouragement of friends, family, my committee members and Penn staff I stayed, and I believe I am a better scholar, man and human being for it. ii ABSTRACT AFFIRMATIVE ACTION RECONCEIVED: A COMPARATIVE STUDY OF CONSTITUTIONAL PRECOMMITMENTS TO GROUP PREFERENCES FOR RACIAL MINORITIES AND WOMEN Abdel Rahman Ford Rogers Smith The nation-state’s struggle with liberal individualism on the one hand and the recognition of group rights on the other is well documented in the literatures on constitutionalism, constitution- making, comparative politics and racial/ethnic relations. However, the manner in which this conundrum manifests in a state’s acceptance or rejection of affirmative action has been under- discussed. Traditional approaches to the study of affirmative action are inadequate because they tend to circumscribe the universe of policies and programs that may qualify as affirmative action by focusing only on certain groups, issue domains or countries. More specifically, current scholarship on affirmative action suffers from several substantive and methodological shortcomings: (1) a neglect of the constitutional foundations of affirmative action, (2) a fundamental definitional uncertainty when it comes to understanding what affirmative action actually is, (3) a lack of a clear analytical framework with which to classify various types of affirmative action policies, (4) a narrow focus on single-case studies, and (5) a paucity of inter-group and intra-group comparisons. To address these lacunae, this study focuses on constitutional precommitments to affirmative action. Prior to any substantive analysis, this study first proposes a consensus definition of affirmative action and develops a universal typology and sub-typology with which to categorize, analyze and compare affirmative action precommitments. Next, this study employs a large N comparative methodology to examine the constitutions of 30 countries and categorize affirmative action precommitments through the use of constitutional textual analysis and secondary source iii historical materials. Finally, this study compares affirmative action precommitments – both inter- group and intra-group – for racial/ethnic minorities and women across the sample. There are three principal substantive findings. First, although liberal individualism remains central to the constitution-making process, all cases exhibited constitutional acknowledgement of some form of group rights and/or preferences. Second, for various reasons, racial/ethnic minorities tend to fare better than women when it comes to the overall prevalence of preferential constitutional precommitments. Third, historical evidence suggests that both endogenous and exogenous political pressures, such as internal ethnic conflicts and global human rights movements, matter when it comes to racial/ethnic minorities’ or women’s chances of having affirmative action provisions included in constitutions during the constitution-making process. iv TABLE OF CONTENTS CHAPTER 1: INTRODUCTION I. Introduction .................................................................................................................................................. 1 II. Theoretical Framework ............................................................................................................................. 2 III. Goals of the Dissertation ........................................................................................................................ 8 IV. Research Design ....................................................................................................................................... 9 V. Findings ..................................................................................................................................................... 10 VI. Contribution to the Field ...................................................................................................................... 12 VII. Structure of the Dissertation ............................................................................................................... 13 CHAPTER 2: LIBERAL CONSTITUTIONALISM, PRECOMMITMENT THEORY AND MINORITY RIGHTS I. The Fundamentals of Constitutionalism ............................................................................................... 15 II. Constitutionalism and Precommitment Theory .................................................................................
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