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6 ”The Beginning and the End of the State” Demarcating the Boundary If dignity jurisprudence is defining what it means to be human and also the ambit of the modern state, then the line in between is critical. Where do the laws of the state end and the laws of the individual begin? This might be thought of as the line of sovereignty, demarcating the reach of individual sovereignty or autonomy and the boundaries of state sovereignty. In some countries—such as, paradigmatically, the United States—dignity narrows the compass of the state to ensure greater scope for the exercise of individual liberty. In other countries, human dignity demands an expanded sphere for the state to respect what is inherent and to fulfill what is to be nurtured by providing public goods and services. In all these countries, dignity is doing the work of demarcating the line between individual and state sovereignty. To some extent, this may be true of all constitutional rights: the language of rights is how we define the state. Rights define who is within and who is outside the state, they protect against state interference in the private realm, and they secure provision of goods or services from the state to support the exercise of rights. One could say that dignity rights are just like others, only more so: the right of free speech or freedom of religion or equality or due process is relevant in certain cases, but the right to dignity is likely to be relevant in all these cases, and more. Dignity does not replace all other rights, but it denotes them in shorthand. In this view, dignity rights do not play a distinctive role in the demarcation of the boundary between the state and the individual, but because dignity operates so broadly, we can learn more from studying it and perhaps draw more significant conclusions about the work dignity rights do than when we look at other more particular rights. ”The Beginning and the End of the State” 131 And yet, there is some support for the view that dignity is in fact different from other rights. In many cultures, it is the predominant right, the “mother right” or “general personality right,” the source of all other rights, or the purpose of all other rights. The variety of factual settings in which dignity rights are relevant, the range of enumerated rights to which dignity rights are textually and conceptually allied, and the seamless blending of dignity rights and dignity values lend credence to the view that the work dignity is doing in constitutional development is different from that of any other right in the panoply of rights. Because dignity is taken so seriously by the world’s major courts—because courts are willing to invest it with such important and multivalent meaning—it is appropriate to ask whether dignity is doing something more than what other rights can typically accomplish. Even beyond the role dignity rights play in augmentation of individual rights (and in the consequent limitations on state power), dignity rights may be altering constitutional culture and the democratic discourse of which that culture is an instrumental part. Thus, when a modern constitutional court describes the appropriate boundaries of state power, it is likely to do so in the language of dignity. In protecting the associational rights of transsexuals and transgendered people, the Supreme Court of Argentina has done this explicitly: it is emphasized that the protection of a guiding value like human dignity implies that the law recognizes, as long as it does not offend order and public morals, nor injure another, an ambit of liberty that is intimate and impenetrable that can conduce to personal realization (self-fulfillment) such as is required in a healthy society. The protection of this ambit of privacy, it is concluded, turns out to be one of the major values of the respect of the dignity of the human being and a basis of the essential difference between a state of rights and authoritarian forms of government.1 Recognizing this “ambit of liberty” obviously creates a tension: the state wants to assert its authority to make laws for individuals, and individuals want to assert their own autonomy—the authority to make laws for themselves . If the court goes too far in asserting the dignity of the individual, it risks tilting toward anarchy; if the court does not go far enough in protecting individual dignity and overprivileges the state’s authority, it risks totalitarianism and...

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