By Stephen A. Simon
Innovative exam of the tensions among common and extra uniquely American definitions of adored rights.
Are constitutional rights established solely in uniquely American concerns, or are they established no less than in half on ideas that go beyond the bounds of any specific state, equivalent to the necessities of freedom or dignity? by way of viewing constitutional legislations during the prism of this basic query, Universal Rights and the Constitution exposes an missed trouble with reviews rendered via the excellent court docket, particularly, an inherent ambiguity concerning the varieties of arguments that count number in constitutional interpretation, which weakens the principles of our so much loved rights.
Rejecting present debates over constitutional interpretation as unsuitable, Stephen A. Simon bargains an leading edge framework designed to supply clearer foundations for rights interpretations whereas conserving a significant yet restricted function for common arguments. He unearths the important connections between modern debates over such concerns because the correct to privateness, the constitutionality of the loss of life penalty, and the position of overseas legislations in constitutional interpretation
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Extra info for Universal Rights and the Constitution
Universal Arguments and the Judiciary We can apprehend this difficulty as presented to the justices by recognizing judicial review as an innovative twist to a largely Lockean framework. In Locke’s account, a government lost legitimacy by transgressing natural rights, but the people had to determine whether the violations were serious enough to warrant the government’s dissolution. The framework provided no institutional check allowing for the redress of abuses short Universal Arguments in American Constitutionalism 23 of overthrowing the regime.
If natural law reasoning of any kind is unacceptable, then demonstrating its presence in a judicial opinion is to convict it of illegitimacy. Regardless of whether one approves, however, universal arguments in fact have occupied a significant place in constitutional jurisprudence. Thus, it is important 27 28 Universal Rights and the Constitution to consider not just when, but also how, the justices have used such arguments. The examination below focuses on whether justices defending universal arguments have used them in a manner that makes clear the role they are supposed to play in justifying decisions.
However, in discussing these objective considerations, the justices have leaned on precisely the kinds of considerations, such as history and predominant 36 Universal Rights and the Constitution public understandings, which would seem to prevent universal arguments from acting as the independent check that they have insisted is essential. Thus, the justices defending universal arguments have failed to provide an explanation of how judicial interpretation can be at once dependent on history and independent of it.