Scholarly Commons @ IIT Chicago-Kent College of Law
Abstract
This article provides a critical response to Ernest Caldwell\u27s article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for horizontal protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell\u27s thesis. First, while acknowledging and drawing on other constitutional traditions in western liberal democracies to illustrate the significance of horizontal rights in constitutional thought, Caldwell nevertheless concludes that China\u27s approach to rights is distinct from the Western tradition, glossing over important differences within Western constitutional thought. Second, while criticizing a single-minded focus on the decisions of the higher courts, Caldwell\u27s approach remains largely court-centric: there are, however, other understandings of constitutionalism in U.S. constitutional scholarship and in the varying practices of constitutionalism in East and Southeast Asia that are less focused on courts. Finally, the observation that constitutional principles might play an important role in moderating private power in an age of multinational enterprises could be extended beyond the jurisdictional boundaries of the state. If private and hybrid (public-private) forms of power are increasingly operating beyond states, we need to find innovative ways of moderating that power that stretch our understanding of constitutional law
