Human dignity is now a central feature of many modern constitutions and international documents. As a constitutional value, human dignity involves a person's free will, autonomy, and ability to write a life story within the framework of society. As a constitutional right, it gives full expression to the value of human dignity, subject to the specific demands of constitutional architecture. This analytical study of human dignity as both a constitutional value and a constitutional right adopts a legal-interpretive perspective. It explores the sources of human dignity as a legal concept, its role in constitutional documents, its content, and its scope. The analysis is augmented by examples from comparative legal experience, including chapters devoted to the role of human dignity in American, Canadian, German, South African, and Israeli constitutional law.

Rules for Originalists

Human Dignity: The Constitutional Value and the Constitutional Right

This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns. Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups. This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests? One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community. For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

The use of rhetorical sources by the U.S. supreme court

This essay discusses the role (or lack thereof) originalism plays in constitutional interpretation and critiques a recent article in the Columbia Law Review by University of Chicago Law Professor Will Baude titled "Inclusive Originalism." The thesis of the essay is that Baude's "inclusive originalism" specifically and "New Originalism" more broadly, either inaccurately describe constitutional decision-making by mislabeling non-originalist decisions as originalist, or define originalism in a way that is indistinguishable from non-originalist methods. Either way, Professor Baude and other New Originalists vastly overstate the importance of original meaning to constitutional law. I suggest at the end of this piece that they do so largely to avoid the realist critique that values, not text or history, drive Supreme Court decisions.

Originalism as Faith

Gun regulation has been a constant component of American law, running from the first settlements in the Chesapeake. Legislatures grappled to reconcile rights and defensive needs against their fear of an unhindered access to firearms. The state's goal of arming some citizens for defense clashed with its effort to prevent the dangerous classes from possessing firearms. Complicating the whole process was a surprising public indifference to firearms prior to the twentieth century. For much of American history, few people contested the state's right to control the possession and use of firearms. In this context, the Second Amendment appeared entirely irrelevant to gun regulation. Until the middle of the twentieth century, American gun laws had a coherent and clear goal of limiting access to firearms to reliable citizens. But since World War II, efforts at gun regulation have usually been prevented by the polarizing enthusiasm for guns among a large segment of the population.

Firearms Regulation: A Historical Overview

Over a century after the Progressives’ devised “living constitutionalism,” its latter day adherents have fought conservatives’ originalism to an intellectual standstill and a political rout. Bookended by discussions of three books by legal liberals (Jack Balkin, Erwin Chemerinsky, Geoffrey Stone and David Strauss) and a book and article by progressive constitutional scholars (Mark Tushnet, David Pozen and Adam Samaha), this essay argues that legal liberalism today is intellectually exhausted. In developing a “critical constitutionalism,” those to their left have better identified constitutional law and theory’s pathologies and potential. The overarching claim is that professional and ideological factors have led legal liberals to misapprehend the uses and limitations of constitutional theory. The essay concludes by suggesting legal liberals move past debates about originalism and begin to think anew about what (legal) liberalism has to offer American constitutionalism.

background

The Search for an Anchor: Living Constitutionalism from the Progressives to Trump

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Rules for Originalists

Citations

Human Dignity: The Constitutional Value and the Constitutional Right

The use of rhetorical sources by the U.S. supreme court

Originalism as Faith

Firearms Regulation: A Historical Overview

The Search for an Anchor: Living Constitutionalism from the Progressives to Trump

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