Reverse Political Process Theory

Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of the Constitution, the Court sees no distinction between the powerless and powerful. This Article challenges that conventional wisdom from a perhaps unexpected direction. I argue that the Court has gone further than to merely reject the political process theory of constitutional interpretation, under which powerless discrete and insular minority groups alone would be entitled to heightened judicial solicitude. In several doctrinal areas, the Court has reversed the theory\u27s core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all while withholding similar protections from less powerful counterparts. After describing these doctrinal developments, this Article offers a critical account of the Court\u27s long and tumultuous relationship with political process theory. I conclude that although opponents of the theory may have been fair to question its ability to restrain judges as a positive principle of constitutional adjudication, political process theory ought to retain force as a negative command. That is to say, even if one believes judges cannot avoid substantive value judgments when deciding which groups are so powerless as to warrant extraordinary protection from the democratic bazaar, attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves

Social movements in Latin America: Political process theory and repertoires of contention

This paper seeks to examine three distinct cases of contemporary Latin American social movements, and explain their origins and the effectiveness of their collective action in terms of the political process theory and the concept of repertoires of contention respectively. The three cases in question are the Movimento dos Trabalhadores Rurais Sem Terra (The Landless Rural Worker\u27s Movement, MST) in Brazil, the Ejercito Zapatista de Liberaci6n Nacional (Zapatista Army of National Liberation, EZLN) in Mexico and the Caracazo (roughly translated, the Caracas Smash ) in Venezuela. This paper ultimately hopes to prove that all three cases are explained by the political process theory and seeks to answer whether or not the repertoires of contention chosen by each group of citizens were effective

Ely at the Altar: Political Process Theory through the Lens of the Marriage Debate

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, recent trial in federal court on the constitutionality of California\u27s Proposition 8, which featured extended testimony by opposing political scientists on gay and lesbian political power. The Article argues that the marriage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinal and conceptual terms. It calls for a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process

Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

article published in law journalIn the Supreme Court's recent decision in United States v. Jones, a majority of the Justices appeared to recognize that under some circumstances aggregation of information about an individual through governmental surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion sometimes called "mosaic theory"-could bring about a radical change to Fourth Amendment jurisprudence, not just in connection with surveillance of public movements-the issue raised in Jonesbut also with respect to the government's increasingly pervasive record-mining efforts. One reason the Court might avoid the mosaic theory is the perceived difficulty of implementing it. This article provides, in the guise of a model statute, a means of doing so. More specifically, this article explains how proportionality reasoning and political process theory can provide concrete guidance for the courts and police in connection with physical and data surveillance

From a Tweet to the Street: The Effect of Social Media on Social Movement Theory

This thesis studies the role of social media within social movements and social movement theory and focuses on applying these theories to the Ni Una Menos movement of Argentina. I focus on three social movement theories: the resource mobilization theory, the political process theory, and the cultural approach. I also analyze the rise of social media in the 21st century and how they fit within the framework of the three theories. I then apply these theories to the Ni Una Menos movement. I argue that the Ni Una Menos movement emerged as a cultural movement, and shifted towards a resource mobilization movement and has only recently begun to fit the political process theory due to new laws and governmental plans. Social media is the main resource for this movement and is responsible for the formation and success of Ni Una Menos

State-Directed Political Protest in US Capital Cities: 1998-2001

Using a new dataset, we analyze four years of political protest events in US state capitals, in order to specify the processes and possibilities for collective action at the state level. Drawing from resource mobilization/political process theory, we test hypotheses regarding density of activist communities, political culture, social capital, administrative capacities, and political processes in affecting the number of protests, rallies, and demonstrations directed at state government. We find that the most important factors include the density of contentious communities of individuals (specifically university students), political culture, Democratic Party control of government, and the option to use direct legislation (a negative effect), while administrative capacity, generalized social capital, and party competition have no effects. We also find strong positive baseline effects for the population size of the state, the relative importance of the capital compared to other cities, and urbanization. We argue that these findings illustrate how aggregate levels of state-level political protest arise out of collective action processes and the mobilization of small groups, as mediated through stable cultural repertoires of political tactics and moderated by certain political opportunities and processes.This publication is Hauser Center Working Paper No. 13. The Hauser Center Working Paper Series was launched during the summer of 2000. The Series enables the Hauser Center to share with a broad audience important works-in-progress written by Hauser Center scholars and researchers

Quality of qovernance and tax revenue generation in West Africa: a political process theory perspective / Fatimoh Mohammed and Soliha Sanusi.

This article examined governance quality indicators such as control of corruption, political stability, voice and accountability and GDP per capita growth on tax revenue generation. This study conducted a panel analysis on all the variables from 15 West African countries between 2009 -2018. The pull result indicated significant and positive relationship with control of corruption, political stability and tax revenue generation. Regulatory quality typified a negative and insignificant relationship; depicting the weak nature of regulatory structures towards revenue mobilization in the West African region. This study suggests digitalization of the tax system, formidable regional economic integration against illicit outflows and improvement of governance culture in order to drive tax compliance and revenue mobilization. Future research should consider the relationship between tax revenue generation and variables such as tax payers’ confidence and tax system digitalization

Labor unrest and incipient collective bargaining in China

In this paper, we argue that both labor unrest and collective bargaining are increasing in China. Using McAdam’s political process theory, we argue that Chinese workers are striking more and offensively in support of their economic demands. We identify the state’s interests in promoting collective bargaining, and through an analysis of union and employers organizations, attempt to predict the future trajectory of collective bargaining in China. Using new data about strikes, we confirm our argument that strikes in China are increasing. Based on very limited past and current research, we create a taxonomy of baseline collective bargaining in China against which future developments can be compared

Harbouring discontent: Activism in 1930s Fremantle

The 1930s was a period of huge economic and political turmoil, with the Great Depression and the rise of fascism in Europe, leading to the Second World War. Western Australia has been portrayed as a place of relative calm and consensus during this decade. This research challenges this view, and examines local community activism in Fremantle in relation to unemployment, industrial strife and the rise of fascism in Europe, particularly the civil war in Spain. The research indicates a highly active and politically conscious labour movement in Fremantle in this decade

Disparate Discrimination

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law