Liberal Nationalism

Frank Buckley

Berkeley Olin Program in Law & Economics, Working Paper Series from Berkeley Olin Program in Law & Economics

Abstract: The recent Supreme Court decision in Saenz v. Roe struck down a California welfare law that imposed residency requirements on recent arrivals to the state. In vindicating the mobility rights of migrants, the Court breathed new life into the Fourteenth Amendment’s Privileges or Immunities Clause. This Article suggests that, however misconceived the decision might appear from the perspective of welfare law, it usefully serves to promote a common American identity on which nationalist sentiments crucially depend. The core nationalist symbol for Americans is the idea of constitutionally-protected liberties that I call liberal nationalism A liberal nationalist understanding of the Privileges or Immunities Clause has four implications for constitutional interpretation. First, it suggests that the mobility rights the Saenz court upheld deserve the high degree of protection they received in that case. Second, the argument from nationalism offers an explanation for cases where the Supreme Court has been faulted for failing to protect national symbols such as the flag. More than the flag, constitutional liberties are a national symbol for Americans, and in upholding the right to deface the flag on free speech grounds, the Court has merely preferred one patriotic symbol to another. Third, a nationalist perspective suggests that basic liberties should enjoy constitutional protection at the national level and should not be entirely returned to the states. But for the argument from nationalism, a strong case could be made for a very thin set of national constitutional liberties, or even for state opt-out rights. Finally, nationalist concerns suggest a need for caution before removing contentious issues from political deliberation by turning them into constitutional rights. In politics, there are only winners and losers, and there is no great shame in being a loser; but in American constitutional law the losers can be faulted for a want of loyalty to core American values, and this must weaken American nationalism.

Date: 2000-03-06
References: Add references at CitEc
Citations:

Downloads: (external link)
https://www.escholarship.org/uc/item/3q79x523.pdf;origin=repeccitec (application/pdf)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:cdl:oplwec:qt3q79x523

Access Statistics for this paper

More papers in Berkeley Olin Program in Law & Economics, Working Paper Series from Berkeley Olin Program in Law & Economics Contact information at EDIRC.
Bibliographic data for series maintained by Lisa Schiff ().