Culture Clashes: Indigenous Populations and Globalization-The Case of Belo Monte

There exists a significant schism between the world of indigenous persons and the process of globalization. To resolve conflicts at the intersection of these divergent worlds, it is imperative to develop a paradigm that recognizes the trade and human rights discourses are intertwined parts of the larger legal and human universe. Such a framework will enable a bridge between the spheres that will benefit humanity so the world will be not only a richer place, but also a better place

Globalized Citizenship: Sovereignty, Security and Soul

Human rights law has redefined the concepts of sovereignty and citizenship. Just as transnationalization has weakened the hegemony of the political elites (corporate economic elites and domestic ruling classes) by strengthening citizenship claims of all persons, so, too, a globalized citizenship grounded on a human rights model will strengthen personhood by denationalizing states\u27 claims on individuals\u27 rights. The human rights narrative has been imagined, crafted and delivered by Northern/Western powers--the hegemon--however, for the human rights model to be of utility to the globalized citizen project, it must be reconstituted with an antisubordination agenda. It must include the voices of the marginalized--both persons outside Western cultures and subordinated persons within Western cultures--all women; racial, ethnic, religious, cultural and sexual minorities; the poor; and the differently abled. In sum, such a new vision of human rights refocuses the discourse and creates a globalized citizenship movement from below that embraces and empowers those currently in the periphery. This essay will use the reconstituted human rights paradigm to explore the relationship between sovereignty, security and personhood. Part II engages the human rights model by recognizing how it first effected a change in the concept of sovereignty and suggest a reconstitution to render the human rights system truly pluralistic. As reconceived, the human rights system provides a rich and complex foundation for a globalized citizenship model that promotes and respects personhood, well-being and human flourishing. Part III explores the tension between human rights and security, acknowledging three significant realities: (1) the normative reality that in times of danger the sovereign can suppress certain human rights to maximize security protections for its citizens and others within its territory; (2) the corollary legal and moral reality that even in times of danger the sovereign cannot derogate from certain fundamental human rights; and (3) the practical reality that the ability of the sovereign to act in breach of the nonderogable obligations may be unassailable if the actor is a powerful world actor. In this context, the essay addresses the uneasy legacy of Nuremberg and its more recent delineation of the bounds of sovereignty--the addition of individual responsibility which means that states cannot escape accountability by doing indirectly (via individual actors) what they cannot do directly. Part IV moves toward a new conceptualization of limits on sovereignty: a proposed globalized citizenship model that draws from traditional citizenship theory, uses the human rights structure as its foundation and places limits on the power of entities, including states and transnational and multinational organizations, associations or groups, to act if the consequence is a violation of human rights norms. This new conceptualization is different from the previous conceptualizations of the limits of sovereignty because the affirmation emanates from the individual him/herself (and others similarly situated around the globe) who has suffered as a consequence of a breach of norms regardless of whether the norm violator is a state actor. Finally, Part V applies the developed model to the post-9/11 condition of the captives held in Guantánamo Bay, Cuba

Awakening the Law: Unmasking Free Exercise Exceptionalism

The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism (“FEE”), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment Clause. This FEE is evident in recent rulings. In the 2020 Espinoza v. Montana Department of Revenue case, the Court ruled that the no-aid provision of tuition assistance programs for parents who enroll children in religious schools discriminated based on religious status rather than religious use. The Court, using a strict scrutiny standard, changed the question from whether a state may choose to fund religious activity to whether it must. A forceful dissent decried the majority opinion for holding, for the first time, that the Constitution requires the government to provide funds directly to a church. Two years later, Carson expanded Espinoza’s holding by mandating the funding of religious activities and institutions where such funding is available to nonsectarian institutions. Another forceful dissent emphasized that prohibiting a state from excluding religious schools from participating in a state tuition program made available to secular schools effects a violation of the Free Exercise Clause of the First Amendment and the breakdown of the separation of church and state. As evidenced in Carson, the consequence is hugely problematic in that the now-state-funded religious institutions, rather than be bound by general nondiscrimination laws, will be free to openly discriminate against students, staff, teachers, and parents alike. This Article proposes a new paradigm to resolve tensions and conflicts in constitutional rights that takes account of and seeks to preserve all constitutional values. Awakening the law is a multilayered process that seeks to find justice in complex legal conflicts; it is an ongoing process that requires buy-in from all affected constituencies. The resolution of constitutional tensions requires consideration of all interests involved in a constitutional conflict. The embrace of the proposed awakened paradigm, informed by established human rights norms and the First Amendment’s own history, allows for the recognition, exposure, deliberation, and resolution of the injustices effected by FEE