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Equality as Reasonableness: Constitutional Normativity in Demise

THE DARK SIDE OF FNDAMENTAL RIGHTS, A. Sajo, ed., Kluwer, 2006

U Iowa Legal Studies Research Paper No. 05-33

26 Pages Posted: 14 Dec 2005  

Alexander Somek

University of Iowa - College of Law

Abstract

The first part of this article is an attempt to make sense - from a constitutional perspective - of concepts such as the "abuse" or "misuse" of constitutional rights. It is argued that while the meaning of "abuse" is very much dependent on specific constitutional provisions, the notion of "misuse" can be given a more general application. It extends to cases where a misinterpretation of a fundamental rights gives rise to a serious alteration of the separation of powers.

The second part of the article offers a case-study of misuse. It affects the equality principle and how it has been transformed by some European courts into an expedient tool for the intuitive assessment of the rationality and reasonableness of legislation. This transformation of the equality principle has serious repercussions for the separation of powers. It invests constitutional courts with virtually unlimited power to invalidate the political choices made by the legislature on the basis of the mere moral intuitions of their members.

Keywords: constitutions, normativity, equality, constitutional rights

JEL Classification: K19, K40

Suggested Citation

Somek, Alexander, Equality as Reasonableness: Constitutional Normativity in Demise. THE DARK SIDE OF FNDAMENTAL RIGHTS, A. Sajo, ed., Kluwer, 2006; U Iowa Legal Studies Research Paper No. 05-33. Available at SSRN: https://ssrn.com/abstract=870051

Alexander Somek (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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