Chapter

Constitutional Stature in Rights Disputes

Emily M. Calhoun

in Losing Twice

Published in print March 2011 | ISBN: 9780195399745
Published online May 2011 | e-ISBN: 9780199894444 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780195399745.003.0002
Constitutional Stature in Rights Disputes

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This chapter argues that constitutional stature is potentially a factor in every rights dispute because real people with concrete, personal interests assert constitutional rights claims. Two types of arguments about constitutional stature are commonly made. A party may remind justices that she is presumptively equal to other citizens in all respects relevant to citizenship and is therefore entitled to the same rights other citizens have traditionally enjoyed. In the alternative, a party may argue that a presumption of full constitutional stature requires affirmation of a previously unrecognized right. A solid understanding of just what a person accorded full constitutional stature looks like is also needed given the fact that constitutional stature is such an important issue in rights disputing. The chapter outlines three perspectives that together form a picture of such a person. One perspective draws on liberal philosophy, a second on a trust metaphor, and a third on a concept of constitutional leadership.

Keywords: constitutional rights; constitutional stature; constitutional leadership; rights disputes

Chapter.  4388 words. 

Subjects: Constitutional and Administrative Law

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