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Who is Afraid of the Total Constitution?


briefly describe the choices the FCC has made focusing on the general right to liberty.14

Art. 2 Sect. 1 of Basic Law states:

“Every person has the right to the free development of their personality, to the extent that they do not infringe on the rights of others or offend against the constitutional order or public morals.”

Compare this to the text of the 5th and 14th which in the relevant passage states:

Amendment of the U.S. Constitution,

“No person … shall be deprived of liberty … without due process of law.

When confronted with texts of this kind two questions present themselves. The first focuses on the scope of the right. How narrowly or how broadly should it be conceived? What is meant by the free development of personality? What is meant by liberty? The second focuses on the broad or narrow understanding of the constitutional limitations of such a right. The texts mention “the rights of others, offenses against the constitutional order or public morals” and “due process of law” respectively. What does this mean for the purposes of articulating a judicially administrable test for acts by public authorities that is subject to constitutional litigation?

In constitutional practice there are two competing approaches to choices of this kind. The first is to define both the scope of the right and the limitations narrowly. This is generally the approach taken by the U.S. Supreme Court. The U.S. Supreme Court insists that only particularly qualified liberty interests, liberty interests that are deemed to be sufficiently fundamental, enjoy meaningful protection under the Due Process Clause. When an interest is deemed to be sufficiently fundamental, the limitations that apply are narrow too. They are narrow in the sense that the requirements that must be fulfilled to infringe a protected interest are demanding. Only “compelling interests” are sufficient to justify infringements of the right. The “compelling interest” test loads the dice in favor of the protected right and raises the bar for justifying infringements when compared to the requirements of proportionality. A measure may be proportional, but not meet the “compelling interest” test.


Id., 223-59. Alexy deals with a general right to equality in chapter 8, at 260-87.

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