Why Rights are not Trumps: Social Meanings, Expressive Harms, and Constitutionalism

Abstract

Constitutional theory and political philosophy typically conceive constitutional rights as trumps for individual interests over appeals to democratic judgments concerning the common good. This article argues that actual constitutional practice reveals that rights frequently function in a different way. Most often, rights police the kinds of justifications government can act on in different spheres rather than protecting atomistic interests in autonomy, or liberty, or dignity. Rights therefore serve as tools courts use to evaluate the social meanings and expressive dimensions of governmental action. In this way, the developing literature on social norms can be extended from private law and social interaction to public law and relations between the individual and the state. Seen from this vantage point, standard critiques of rights‐oriented constitutionalism, for intrinsically elevating atomistic interests over collective pursuit of the common good, can be seen to be mistaken. Instead, rights are means of realizing various common goods through the work they do to protect the integrity of distinct common goods, such as democratic self‐governance, public education, religion, and other domains.