Disrespect as the Essence of Constitutional Right Violations

Abstract

This Article presents a simple, broad-sweeping, unifying account of the underlying logic and limits of the important constitutional rights. The underlying logic of constitutional rights turns out to be a matter of respect and disrespect. The essential focus of this account is thus on the idea of respect, and often more incisively, on the idea of disrespect. Certainly, no single idea can fully account for all phases of all constitutional rights. But the idea of respect, and of disrespect in particular, can aptly describe much of the territory of the most important constitutional rights, whether the rights in question are officially acknowledged, or as yet unacknowledged.

It is certainly true that many of the harms associated with constitutional rights violations are not entirely reducible to matters of respect and disrespect. And certainly, constitutional protection of particular rights may serve a variety of purposes, not all of which are fully expressed in terms of fundamental respect and disrespect. The recognition, the threshold enforcement, and the eventual limitation of constitutional rights is in this sense inevitably pluralistic. The argument herein, though, is that considerations of respect and disrespect, in a fundamental sense, generally structure and make distinctive sense of the pluralism of constitutional rights.