Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right
Widener University Delaware Law School
November 4, 2010
Ohio North University Law Review, Vol. 37, p. 381, 2011
Widener Law School Legal Studies Research Paper No. 10-39
Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases - which focus, at root, on the autonomy of the states and their power of self-determination - helps to inform a constitutional conception of human dignity. Indeed, in cases from the Rehnquist years as well as in the Roberts Court, justices from both sides of the political and jurisprudential spectrum have acknowledged the importance of human dignity to constitutional interpretation. This article provides a theoretical framework for understand what the constitutionalization of human dignity might look like.
Number of Pages in PDF File: 51
Keywords: Constitutional Law, Dignity, Human Rights, Constitutional Interpretation, Supreme Court
JEL Classification: K10, K19
Date posted: November 9, 2010 ; Last revised: August 28, 2011
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