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Looking for Rights in All the Wrong PlacesWhy State Constitutions Contain America's Positive Rights$
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Emily Zackin

Print publication date: 2013

Print ISBN-13: 9780691155777

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691155777.001.0001

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Why Write New Rights?

Why Write New Rights?

Understanding Constitutional Development Apart from Entrenchment

Chapter:
(p.48) Chapter 4 Why Write New Rights?
Source:
Looking for Rights in All the Wrong Places
Author(s):

Emily Zackin

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691155777.003.0004

This chapter considers the variety of political calculations that drove activists, organizations, and social movements to pursue the creation of positive rights. It first explains the classic idea of constitutions as constraints before discussing the main assumptions of entrenchment theories. It then considers the distinctions among the concepts of entrenchment, judicialization, and constitutional development. It also offers additional accounts of constitutional development and highlights several unique features of constitutional law, other than its (widely recognized) capacity to entrench established policies by allowing courts to protect them. The chapter contends that we should view state constitutions' responsiveness to social change as a feature that allows us to expand the existing understanding of constitutional development.

Keywords:   activists, social movements, positive rights, constitutions, entrenchment theories, judicialization, constitutional development, constitutional law, state constitutions, social change

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