Federalism, Rights, and Backlash in Europe and the United States

International Journal of Constitutional Law (I.CON) 15 (2017) 4, 1066–1079

17 Pages Posted: 12 Apr 2017 Last revised: 14 Oct 2020

See all articles by Thomas Kleinlein

Thomas Kleinlein

Friedrich-Schiller-University Jena

Bilyana Petkova

University of Graz - Faculty of Law; Yale University - Yale Information Society Project

Date Written: March 31, 2017

Abstract

This article introduces the symposium “Federalism and Rights: Europe and the United States Compared”, which comprises five articles on the judicial development of fundamental rights in the (quasi-)federal structures in the European Union and the United States, ranging from fair trial rights over data privacy and gay rights to human dignity. In light of recent developments in both the EU and the U.S., the struggle for rights and the resilience of (quasi-) federal structures is, once again, a burning issue. In Europe, also the overall trajectory of the EU as a common project is contested. Like in the U.S., struggles within the (quasi-)federal structure of the EU serve as the pursuit of political contestation through legal means. In federalism theory, neither the experimentation narrative nor the notion of ‘dissenting by deciding’ tell us where to draw the line between fruitful experimentation, contestation and struggle, on the one hand, and devastating backlash, on the other. With the looming rise of nationalist populist movements, Brexit, but also the faltering democracies of Central and Eastern Europe, today the question becomes to what extent states and localities can still channel some of this new wave of backlash and counter-backlash facing both the EU and the U.S. Comparative research that would help us to learn how to distinguish between productive and dangerous backlash is still at the very beginning. Yet, the case studies in this symposium lay the groundwork for comparative answers to this very question.

Keywords: federalism, rights, backlash, European Union, United States

JEL Classification: K00, K10

Suggested Citation

Kleinlein, Thomas and Petkova, Bilyana, Federalism, Rights, and Backlash in Europe and the United States (March 31, 2017). International Journal of Constitutional Law (I.CON) 15 (2017) 4, 1066–1079, Available at SSRN: https://ssrn.com/abstract=2951744

Thomas Kleinlein (Contact Author)

Friedrich-Schiller-University Jena ( email )

Faculty of Law
Carl-Zeiss-Straße 3
Jena, Thuringia 07743
Germany
+49(0)3641-942201 (Phone)

HOME PAGE: http://www.rewi.uni-jena.de/en/Kleinlein

Bilyana Petkova

University of Graz - Faculty of Law ( email )

Austria

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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