Article title Modern Trends of U.S. Constitutional Law in Terms of the Right to Privacy and Dignity
Authors

   

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 9/2018
Сторінки [76-97]
DOI 10.33498/louu-2018-09-076
Annotation

Modern constitutional systems are exposed to significant impacts which are often contradictory by their nature since they arise both at the national and international levels, both as a result of globalization processes and owing to strengthening of national States. Such trends make more significant the role of courts in interpreting of law, especially the role of the U.S. Supreme Court. The U. S. Supreme Court enjoys substantial powers to interpret law in the administrative law domain, in cases of distribution of power. This interpretation is made by applying the basic canons or rules, such as the Reference to Chevron, the Avoidance of the Constitutional Issue and the Law-Making History. These canons have been elaborated by the U. S. Supreme Court over the time of its operation and are under constant influence and development. Recent changes in the composition of the U.S. Supreme Court have an effect on the subject matter of and the approaches to constitutional interpretation, and also suggest a conclusion that the basic interpretation canons will undergo further changes in the near future. The purpose of the article is to analyze the approaches to comprehension of the principles, forms and ways of interpreting constitutional rights which have been set up in the U.S. Supreme Court practice, with a view to building up a whole picture of the specifics pertaining to the implementation of specific powers of courts in U.S. constitutional law, and also to present the author’s own vision of the trends observed with regard to protection of certain constitutional rights, namely, the right to privacy and dignity in the legal system of the United States. The author has established that in U. S. constitutional law the right to dignity doctrine is not well-developed; however, this doctrine has been reflected in the U. S. legal system through the borrowing and implementation of international instruments and incorporation thereof into the Constitution of individual States. The most remarkable example of such a borrowing from another legal system with regard to human dignity is the Constitution of the State of Montana, with its Article 2 clearly enshrining the right to dignity and mirroring the provisions of the Universal Declaration of Human Rights and the Constitution of Puerto Rico. The right to dignity is also reflected in the interpretation of law by the U.S. Supreme Court with regard to related matters. In particular, some aspects of the right to dignity are addressed in the decisions passed in cases of Carpenter v. USA and Salinas v. Texas. Both concern the rights of suspects and defendants in the criminal process. In Salinas v. Texas, the court held that the provisions of the Fifth Amendment to the U.S. Constitution guarantying that no individual may be compelled to give selfincriminating testimony create the requirements for an active action, namely, a person wishing to exercise his/her right to silence should actively announce this. Passive silence is insufficient. In Carpenter v. USA, the U.S. Supreme Court examined the boundaries of the right to privacy and the permissibility of invasion of a person’s privacy in connection with official investigations. In both cases, the U.S. Supreme Court relied on its own practice and made a progressive interpretation of legislation with due regard for the development of modern technologies and the overall level of current society’s development. The author comes to the conclusion that although the U. S. Constitution does not contain a provision on the right to dignity, this concept as such is often used to analyze and justify decisions in the related areas and allows to deepen the analysis and development of the provisions which have already been seriously elaborated by the U.S. Supreme Court based on other provisions of the U.S. Constitution, as well as by courts of individual States based on the State’s law and customary law.

 

Keywords constitutional law; comparative constitutional law; rule of law; right to privacy; right to dignity; interpretation canons; Reference to Chevron; Avoidance of the Constitutional Issue; Fourth Amendment
References
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