Deconstructing transnationalism: conceptualizing metanationalism as a putative model of evolving jurisprudence.

• Author: Enriquez, Paul

ABSTRACT

This Article builds upon Philip C. Jessup's revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-a-vis international law. This theory, called metanationalism, rejects Harold Koh "s theory of transnationalism and demonstrates that nationalism and transnationalism are not two mutually exclusive concepts at opposite ends of a linear spectrum of constitutional theory.

Contrary to Koh's postulate, metanationalism conceptualizes these two theories as components in a multidimensional paradigm where such theories exist to broaden and enrich legal analysis. Applying metanationalism, this Article argues that existing literature overlooks diversity's role in the global education-rights movement and focuses on India as a case study. Lastly, this Article analyzes a recent trend in U.S. constitutional law to advocate revisiting the current equal protection landscape.

TABLE OF CONTENTS INTRODUCTION I. TURMOIL IN THE COURTS A. The Path to Grutter 1. Brown Triumphs Over Segregation 2. Freeman Cripples Brown 3. Diversity Ignites Hullabaloo in Bakke's Oven B. Lower Courts Struggle with Diversity C. Everyone's Chasing Brown--PICS and the Illusory Promise of a Resolution II. DIVERSITY AND ITS PIVOTAL SIGNIFICANCE A. Diversity Increases Racial Tolerance and Promotes Citizenship B. Diversity and Its Broad Impact C. Diversity Prepares Students to Interact in a Global Society and Increases Academic Achievement III. WAIT, THE NEIGHBORS TOO.P--AN INTERNATIONAL AFFAIR A. Globalization 1. Two Sides of the Coin 2. Education and Diversity B. Square Pegs and Round Holes? International Law in American Constitutional Jurisprudence 1. The New Archenemies: Nationalism Versus Transnationalism C. Metanationalism D. India 1. Constitutional Framework 2. Diversity, Minorities, and State Preferential Treatment Policies 3. Diversity and the Emergence of a Right to Education 4. Compelling Treatment IV. SOMETHING'S GOTTA GIVE A. Grutter Upholds, but Changes the Nature of, Strict Scrutiny B. Johnson Carves Another Exception to the Fourteenth Amendment C. Finding Needles in a Haystack--Carving a New Integration Exception CONCLUSION The doctrine of human equality may be unpopular with besotted ignorants, but, popular or unpopular, I shall stand by it until I am relieved of the unprofitable labors of such.

--Thaddeus Stevens (1)

INTRODUCTION

Five and a half decades ago, on May 17, 1954, the Supreme Court rendered one of its most significant and controversial rulings to date when it decided Brown v. Board of Education. (2) After decades of government-sponsored racial segregation, the Court unanimously struck down the doctrine of "separate but equal" in public educational facilities. (3) The Court emphasized the importance of education in our society by reminding us that "lilt is the very foundation of good citizenship" and "a principal instrument in awakening [a] child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." (4) Brown's jurisprudence overturned nearly six decades of de jure (5) segregation and has become a virtuous emblem of the judiciary's ability to protect the individual rights guaranteed in the Equal Protection Clause of the Fourteenth Amendment. (6)

Despite Brown's powerful mandate against racial discrimination, total desegregation remains an unmet goal. (7) De jure segregation may have been abolished, but many public schools remain de factos segregated due to pervasive residential segregation and white flight. (9) To combat de facto segregation, several school districts recently implemented voluntary integration programs, which sparked litigation in the lower courts. (10) The school districts, relying on the Supreme Court's decision in Grutter v. Bollinger, (11) urged the courts to uphold the constitutionality of their race-conscious plans. However, Grutter extends only to higher education, (12) and its application to K-12 admissions generated a stream of organized legal chaos.

Most people familiar with Brown and its progeny recognize the aspiration of promoting racial and ethnic diversity, (13) while simultaneously eliminating segregation, as a distinctively American problem. Yet, contrary to this belief, an examination of law and public policy in nations around the world reveals that diversity in education--as well as in other areas--has become a global predicament. This is precisely the type of dilemma identified by Philip C. Jessup, the late jurist and scholar, when he published a series of lectures contained in his groundbreaking volume Transnational Law. Jessup explored the universal nature of human problems to challenge the traditional approach to relationships between nation-states, as well as between states and non-state actors. (14) Jessup's exposition of the complex and interrelated world community in which we live constitutes the genesis of this Article.

In broad terms, this Article examines the constitutional framework of racial and ethnic diversity in K-12 public education from an equal protection standpoint. Namely, it argues for constitutional compelling treatment of diversity and integration in education that survives strict judicial scrutiny. To advocate a normative framework inclusive of diversity, the greater part of this Article ties American constitutional theory to the new era of international globalization. By using diversity as a "universal human problem," this Article builds upon Jessup's revolutionary scholarship to challenge the current binary construct (nationalism-transnationalism) advanced by Professor Harold Koh and conceptualizes a solution as a putative model of evolving jurisprudence.

This Article makes three distinct contributions to legal scholarship. First, it introduces metanationalism, (15) a novel theory of constitutional interpretation vis-a-vis international law. This term has not appeared in prior literature but borrows from Jessup's own experiment in word coining. When Jessup coined the term "transnational law," (16) he understood that a particular choice of terminology might appear unsatisfactory to some. (17) Nevertheless, he exercised his scholarly freedom, recognizing that "[t]he more wedded we become to a particular classification or definition, the more our thinking tends to become frozen and thus to have a rigidity which hampers progress toward the ever needed new solutions of problems whether old or new." (18) Ultimately, however, while articulating a term is necessary from a methodological standpoint, this Article is more concerned with paving new pathways for interdisciplinary research and expanding the normative constitutional framework.

In essence, the metanationalist approach is twofold. First, it rejects Koh's theory of transnationalism. More specifically, this rejection focuses on transnationalists' overemphasis on respecting only the laws of "mature" or "developed" societies. Such limitation is problematic because it requires a subjective measuring of jurisprudential maturity, fosters unnecessary debate over the citation of international sources, and creates a veil of international majoritarianism. (19) Second, the metanationalist approach replaces Koh's linear model with a multidimensional paradigm for interpreting international law. Simply put, instead of thinking of nationalism and transnationalism as two mutually exclusive concepts at opposite ends of a linear spectrum of constitutional interpretation, metanationalism views these concepts as important elements in a multidimensional plane where theories exist to broaden and enrich legal analysis. This concept is similar to the substitution of normative linear models in other disciplinary areas such as human sexuality (adding bisexual, transsexual, pansexual, intersexual, and asexual to the original homosexual and heterosexual linear model) and political theory (replacing the conservative and liberal linear model with a diverse plane that includes classifications such as totalitarian, libertarian, socialist, anarchist, and communist).

The second independent contribution in this Article stems from the application of metanationalist principles in a comparative analysis of the role of diversity in India's education-rights movement. Until now, the bulk of literature in this field of human rights law has focused on an international consensus--found in treaties and other international agreements--regarding the importance of education as a basic human right. However, a closer examination of the emergence of education as a fundamental right in India--first through jurisprudence and later by means of a constitutional mandate (20)--reveals a crucial factor largely absent from the scholarly debate: diversity. This Article argues that diversity played a significant role in securing a constitutional amendment, primarily resulting from the desire to eradicate illiteracy and extend educational opportunities to the poor and socially deprived. With that background, this Article demonstrates some of the ways that India--and other nations--treats diversity as a compelling interest that justifies measures to integrate pupils from different races, castes, and cultures in educational facilities.

The third contribution in this Article focuses on two new developments in American constitutional law. The first development is a trend in equal protection law that has altered the nature of strict scrutiny. For decades, remedial measures...