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Vol. 105 (March 2020)

Conditionality and Constitutional Change

Felix B. Chang. Professor, University of Cincinnati College of Law. E-mail: felix.chang@uc.edu. For a fuller treatment of this topic, see FELIX B. CHANG & SUNNIE RUCKER-CHANG, ROMA RIGHTS AND CIVIL RIGHTS: A TRANSATLANTIC COMPARISON (2020).

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9 Jan 2020

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority: the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement.1See generally James A. Goldston, The Unfulfilled Promise of Educational Opportunity in the United States and Europe: From Brown v. Board to D.H. and Beyondin REALIZING ROMA RIGHTS 163–84 (Jacqueline Bhabha et al. eds., 2017) (comparing the fight for equal justice for Roma children with the civil rights movement in the United States). Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union’s Roma integration policies illuminate a relatively unexplored dynamic of America’s post-Civil War Reconstruction: the influence of the Reconstruction Act of 1867 upon the Fifteenth Amendment. The Reconstruction Act imposed conditions upon the readmission of former Confederate states that were out of step with laws governing incumbent states within the Union. Most prominently, Southern states had to uphold the suffrage rights of freedmen, even though Northern states denied African Americans the vote at almost every opportunity. Similarly, when the European Union (EU) expanded into post-Communist Eastern Europe, the Union required that accession candidates adopt minority protections that were stricter than the obligations of incumbent members.

This Essay begins by framing the readmission of ex-Confederate states as conditionality, the process of negotiation over conditions for membership. Conditionality is closely associated with the eastern enlargement of the EU, another federal system that demanded more of candidates than of members. At times, the conditions for readmission and accession elevated the racial equality standards for all states. The United States appeared to pass the Fifteenth Amendment, for example, which guarantees the vote to all male citizens, to put to rest the uneven imposition of suffrage.2See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 74–75 (2000). Similarly, the EU incorporated “respect for minorities” into its constitutional order in response to charges of hypocrisy. The conditionality framework therefore shows how the internal and external competences of a federal government can influence one another, illuminating whether bold demands upon candidates can lift up the standards for all member states.

However, Reconstruction failed so spectacularly that a “Second Reconstruction,” as the Civil Rights Movement is sometimes known, was needed to give full effect to the meaning of freedom. This Essay concludes by showing how the incongruence between readmission conditions and the constitutional framework undermined the Reconstruction Amendments. While some scholars have explored the influence of the Northwest Ordinance on the Thirteenth and Fourteenth Amendments,3E.g., Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 AM. J. LEGAL HIST. 119, 132– 35 (2004); George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1372 (2008). none have ever cast this relationship between the U.S. federal government’s internal and external governance as conditionality, that concept which has come to embody the challenge of sustaining reforms once an applicant becomes a full-fledged member.4Professor Ackerman has noted the dearth of legal scholarship on the effect of the Reconstruction Act upon the Fourteenth Amendment, though he has not analyzed this dynamic as the influence of external conditions on internal governance. See BRUCE ACKERMAN, 2 WE THE PEOPLE: TRANSFORMATIONS 190 (1998).

To read more, click here: Conditionality and Constitutional Change.

References   [ + ]

1. See generally James A. Goldston, The Unfulfilled Promise of Educational Opportunity in the United States and Europe: From Brown v. Board to D.H. and Beyondin REALIZING ROMA RIGHTS 163–84 (Jacqueline Bhabha et al. eds., 2017) (comparing the fight for equal justice for Roma children with the civil rights movement in the United States).
2. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 74–75 (2000).
3. E.g., Eric Biber, The Price of Admission: Causes, Effects, and Patterns of Conditions Imposed on States Entering the Union, 46 AM. J. LEGAL HIST. 119, 132– 35 (2004); George Rutherglen, State Action, Private Action, and the Thirteenth Amendment, 94 VA. L. REV. 1367, 1372 (2008).
4. Professor Ackerman has noted the dearth of legal scholarship on the effect of the Reconstruction Act upon the Fourteenth Amendment, though he has not analyzed this dynamic as the influence of external conditions on internal governance. See BRUCE ACKERMAN, 2 WE THE PEOPLE: TRANSFORMATIONS 190 (1998).

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