The Congress

Ever since the French Revolution and article XVI of the Declaration of the Rights of Man and of the Citizen, fundamental rights have played an important and ever-expanding role in Constitutionalism. This crescent dynamic is evident when we think about the different “generations” of fundamental rights: from the first generation, composed by the liberal and negative rights to demand that the State abstain from interfering with certain aspects and activities within social life (such as private property and economic initiative), then on to the second generation and political participation rights. The third generation, composed predominantly of social rights, closes the “classic” cataloguing of fundamental rights. However, the onset of technological capabilities susceptible of interfering with essential freedoms and posing newer threats to human dignity brought about other legal means of protection, including fundamental rights to genetic identity and personal data, hence other generations of fundamental rights beyond the traditional three have been theorized. All along, fundamental rights are explained by constitutional theory as having at their heart and their core, human dignity.

The growing tendency of fundamental rights is not only visible in the increase of the number of them inscribed in Constitutions. It is also perceptible in the expansionist interpretations of ones already consecrated. And, perhaps even more importantly in the increasing number of international conventions concerned with the multi-level protection of fundamental rights and the establishment of different Courts and Authorities to enforce them.

While, at first glance, the enlargement of the fundamental rights arena may seem like a positive aspect – which it may be -, the issue undoubtedly raises several questions, such as:

As we extend the number of fundamental rights, are we diluting the concept of human dignity underlying them?

Likewise, does the conferment of "rights" and some form of legal personhood to animals and even non-living entities undermine human dignity and the very notion of fundamental rights or is it a necessary evolution of those same ideas?

Given the multitude of cultures and identities of peoples and countries part to international conventions, on one hand, and the tendency to regard fundamental rights as at least partly universal, what role is there for the margin of appreciation?

Tension is also possible not only between national jurisdictions and international entities and legal systems, but between international entities protecting fundamental rights. How should this potential conflict be addressed?

Fundamental rights have an inherently counter-majoritarian genetic code. They impose themselves upon the legislator and the State. As we enlarge the number and scope of fundamental rights and consequently diminish the range of option available for political and democratic deliberation, are we creating a directing Constitution, which imposes excessively? What room is left for politics?

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