WHY RIGHTS ARE NOT TRUMPS - SOCIAL MEANINGS, EXPRESSIVE HARMS, AND CONSTITUTIONALISM

Constitutional theory and political philosophy typically conceive cons titutional rights as trumps for individual interests over appeals to d emocratic judgments concerning the common good. This article argues th at actual constitutional practice reveals that rights frequently funct ion in a different way. Most often, rights police the kinds of justifi cations government can act on in different spheres rather than protect ing atomistic interests in autonomy, or liberty, or dignity. Rights th erefore serve as tools courts use to evaluate the social meanings and expressive dimensions of governmental action. In this way, the develop ing literature on social norms can be extended from private law and so cial interaction to public law and relations between the individual an d the state. Seen from this vantage point, standard critiques of right s-oriented constitutionalism, for intrinsically elevating atomistic in terests 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 g oods, such as democratic self-governance, public education, religion, and other domains.