Academic

Daly on Human Dignity & the Roberts Court

By Lawrence Solum

Erin Daly (Widener University School of Law) has posted Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right (Ohio North University Law Review, Forthcoming) on SSRN. Here is the abstract:

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.

Full post as published by Legal Theory Blog on November 11, 2010 (boomark / email).