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Harming Constitutional Change HARMING CONSTITUTIONAL CHANGE: THE ROLE OF COUNTERMOVEMENTS IN CONSTITUTIONAL EQUALITY LITIGATION IN THE UNITED STATES, BRAZIL AND SOUTH AFRICA By- Thiago de Souza Amparo Department of Legal Studies, Central European University 2018 CEU eTD Collection © Thiago de Souza Amparo, 2018. This dissertation may not be copied, reproduced or transmitted without prior permission of the author. CEU eTD Collection 2 This dissertation contains no materials accepted for any other degrees in any other institution; and no materials previously written and/or published by another person, except where appropriate acknowledgements are made in the form of bibliographical reference. s/Thiago de Souza Amparo CEU eTD Collection 3 ABSTRACT The dissertation entitled Harming Constitutional Change: The Role of Countermovements in Constitutional Equality Litigation in the United States, Brazil and South Africa narrates the ways through which constitutional equality jurisprudence have redefined what it means to be harmed in constitutionally relevant way, largely due to the influence of legal mobilization led by countermovements in and out of courts. By looking at three jurisdictions and their constitutional equality jurisprudences and frameworks, namely: Brazil, South Africa and the United States, this dissertation addresses analyzes countermovements’ legal mobilization in those countries, inside and outside courts; and inquire the roles of apex courts in light of countermovements’ legal mobilization, in particular how such courts make sense of new claims of harm. This dissertation focuses on countermovements which seek to protect traditional family values – developed to oppose LGBT rights in Brazil, South Africa and the United States, and the anti-affirmative action countermovements – reacting to race-related affirmative actions in those countries. Through analyzing the constitutional changes in constitutional equality the legal mobilization of countermovements has promoted, this dissertation challenges the traditional way scholars have understood the role of apex courts amid legal mobilization by social movements and countermovements. It concludes by outlining what kinds of new claims of constitutional harm (e.g. complicit CEU eTD Collection claims) apex courts will have to deal with in the future of constitutional equality. 4 To my mom (1958-2017), in memoriam. CEU eTD Collection With deepest love and saudades 5 “Can any one of us here still afford to believe that efforts to reclaim the future can be private or individual? Can anyone here still afford to believe that the pursuit of liberation can be the sole and particular province of any particular race, or sex, or age, or religion, or sexuality, or class? Revolution is not a one-time event. It is becoming always vigilant for the smallest opportunity to make a genuine change in established, outgrown responses; for instance, it is learning to address each other’s difference with respect.” Audre Lorde In: Sister Outsider: Essays and Speeches (Crossing Press, 2012), p. 265-266. "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used." Justice Oliver Wendell Holmes Jr. CEU eTD Collection The US Supreme Court In: Towne v. Eisner, 245 U. S. 425 (1918) 6 ACKNOWLEDGEMENTS First of all, I would like to thank Professor Renáta Uitz. I thank her not only for her detailed and attentive handwritten comments throughout the past six years I have had the pleasure of knowing her. I thank her specially for believing in this work until its conclusion, for providing me with the critical encouragement necessary to make lonely, silent hours bearable and at times even inspiring. With her, I learned not only to be a better scholar, but more importantly to think better. I also thank Central European University for providing me with generous support throughout these years, allowing me to work as a visiting scholar both in São Paulo at Getulio Vargas Foundation’s Law School as well as in New York City at Columbia University, and attend numerous conferences. I am greatly indebted of those three universities’ academic, administrative and student bodies, in particular Professors Csilla Kollonay-Lehoczky, Conrado Mendes, Eszter Polgari, Kendall Thomas, Mathias Möschel, Oliver Lewis, Oscar Vilhena Vieira, Tanya Hernandéz, Tibor Tajti and many others who enriched my research with their particular insights and kind words. I am also extremely grateful for the amazing fellow SJD students at Central European University, in particular Alexandra Horváthová and Debjyoti Gosh, who always pushed me forward, even in the darkest times. Last but certainly not least, I am grateful for my family’s immense support and love. Losing my mother slowly for the past 2 years taught me a considerable deal about strength and perseverance. This thesis is a humble tribute to her great legal mind CEU eTD Collection grounded on a solid conviction that law ought to treat us all equally, in our differences. 7 TABLE OF CONTENTS Table of Contents ABSTRACT .............................................................................................................................................................. 4 ACKNOWLEDGEMENTS ...................................................................................................................................... 7 TABLE OF CONTENTS ......................................................................................................................................... 8 INTRODUCTION ..................................................................................................................................................10 PART 1: CONCEPTUAL FRAMEWORK .........................................................................................................15 CHAPTER 1 CUTTING BOTH WAYS: ............................................................................................................16 NON-TEXTUAL CONSTITUTIONAL CHANGE, CONTENTION AND THE ROLE OF COURTS .......16 1. THE BASICS: THE ARCHITECTURE OF THE CONSTITUTIONAL FRAMEWORK OF THE THREE COUNTRIES 18 2. SOCIO- LEGAL MOBILIZATION ON RACIAL AND LGBT EQUALITY: ................................................................. 27 3. RISE OF LITIGATION BY COUNTERMOVEMENTS: CONTESTING CONSTITUTIONAL CHANGE ....................... 36 4. UNDERSTANDING NON-TEXTUAL CONSTITUTIONAL CHANGE FROM US EXPERIENCE ................................. 45 4.1. Constitutional Moments and Canons as Solidifying Constitutional Change.....................47 4.2. ‘Our’ Constitution as ongoing change ...............................................................................................53 5. UNDERSTANDING NON-TEXTUAL CONSTITUTIONAL CHANGE FROM BRAZIL’S AND SOUTH AFRICA’S EXPERIENCES .......................................................................................................................................................................... 56 5.1. Latin America’s Neoconstitutionalism..............................................................................................58 5.2. Transformative Constitutionalism In and Beyond South Africa............................................63 6. CONCLUSION: MAKING SENSE OF COUNTERMOVEMENTS’ LITIGATION TO UNDERSTAND CONSTITUTIONAL CHANGE BETTER .................................................................................................................................. 70 CHAPTER 2 A TRIPARTITE CONCEPTUAL FRAMEWORK: ..................................................................73 INSTITUTIONAL OPENNESS, CONTESTATION AND HARM-MANAGEMENT .................................73 1. LAW AND SOCIAL MOVEMENTS IN CONSTITUTIONAL CASES ........................................................................... 74 2. SOCIAL SCIENCE LITERATURE ON COUNTERMOVEMENTS ................................................................................ 80 2.1. Why Countermovements?: Analytical advantages and limitations ....................................84 2.2. Common Themes in Social Science Literature Regarding Social Movements – Countermovements Dynamics ................................................................................................................................88 3. ESKRIDGE ON COUNTERMOVEMENTS .................................................................................................................... 94 Figure 1: Eskridge’s Four-Tier Politics of Social Movements and Countermovements in Non- Textual Constitutional Changes.............................................................................................................................95 4. TOWARDS A NEW FRAMEWORK ...........................................................................................................................100 4.1. Working Definition of Countermovements .................................................................................. 100 4.2. From Political to Legal Opportunity Structures ........................................................................ 110 4.3. Constitutional Harm .............................................................................................................................. 118 5. CONCLUSION .............................................................................................................................................................123 PART 2: APPLYING THE CONCEPTUAL FRAMEWORK .....................................................................
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