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On the Use and Abuse of Dignity in Constitutional Law

58 Pages Posted: 15 Jun 2008 Last revised: 17 Jun 2008

Neomi Rao

George Mason University - Antonin Scalia Law School, Faculty

Abstract

Human dignity has developed into a core value of modern constitutionalism. In the United States, the Supreme Court has referred to human dignity only sporadically, but several justices and a number of scholars have advocated using the concept of human dignity to modernize American constitutional law and to keep in step with the international community. I argue in this Article that acceptance of the modern, largely European conception of human dignity would weaken American constitutional protections for individual rights.

Human dignity as a constitutional concept has drawn its meaning from a European cultural and social context that emphasizes communitarian values, rather than individual ones. In practice, modern constitutionalism prefers balancing and harmonizing rights with other political and social needs. The widespread acceptance of such tradeoffs minimizes the importance of rights because courts review rights as part of a political calculus. By focusing on values such as human dignity, modern constitutionalism deprives rights of their special force. The experience from abroad suggests caution before importing the European ideals of human dignity into American constitutional law.

Keywords: communitarian, Constitution, human dignity, individual, limitations clauses, proportionality review, Supreme Court, value

Suggested Citation

Rao, Neomi, On the Use and Abuse of Dignity in Constitutional Law. Columbia Journal of European Law, Vol. 14, No. 2, pp. 201-256, Spring 2008; George Mason Law & Economics Research Paper No. 08-34. Available at SSRN: https://ssrn.com/abstract=1144856

Neomi Rao (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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