monograph
Open Access
THE PLACE OF HISTORY IN FUNDAMENTAL RIGHTS’ ADJUDICATION
Essays on Balancing and Constitutional Interpretation in the United States and Europe
Andrea Buratti
Anno di edizione: 2026
Editore: TVUP
Collana: Law and Society
Descrizione:
This volume explores one of the central tensions of contemporary constitutionalism: the interpretation and balancing of fundamental rights in the light of history and tradition. The essays collected in the book trace how historical consciousness shapes judicial reasoning within pluralistic democracies. Through a comparative lens, the author examines the jurisprudence of the United States Supreme Court and the European Court of Human Rights, revealing both the interpretative premise and the methodological ambiguities of invoking tradition in constitutional adjudication. From the incorporation of fundamental rights in American constitutional law to the Dobbs decision on abortion and the European debates on Holocaust denial, these pages reconstruct the cultural and historical foundations upon which legal meaning rests. The book ultimately argues that the balancing of fundamental rights cannot be confined to the technicalities of judicial craft: it demands a deeper engagement with the living histories from which constitutional ideals draw their force.
Foreword 7
First part
1. Balancing Fundamental Rights: Imagery, Theories,
Practice 13
1.1. Fundamental Rights’ Adjudication in Comparative Perspective 13
1.2. Imagery 16
1.3. The Actors of Balancing 29
1.4. Fundamental Rights' Adjudication in the Open Society of
Constitutional Interpreters 44
Second part
2. Fundamental Rights and Historical Tradition:
The Contribution of the Supreme Court of the United States 55
2.1. The Role of Historical Tradition in Jurisprudence on Fundamental Rights:
An Introduction 55
2.2. The Use of Historical Tradition in the Early Jurisprudence of
the Supreme Court on the Due Process Clause of the 14th
Amendment 58
2.3. Interpretations and Applications of the Due Process Clause
During the Warren Court (1953-1969) 61
2.4. Historical Tradition or New Demands for Recognition? Recent
Developments of Substantive Due Process 64
3. The Supreme Court and the “Disincorporation” of the
Right to Abortion 69
3.1. Introduction 69
3.2. Contextualizing the Dobbs Case in U.S. Legal Discourse 70
3.3. The Starting Point: The Right to Abortion According to Roe
and Casey 71
3.4. The Problem of Due Process Traditionalism 73
3.5. The Error of Dobbs 75
3.6. Departure from Overruling Standards 78
Third part
4. Histories, Traditions, and Contexts in the Jurisprudence
of the European Court of Human Rights 83
4.1. The problem of the use of history in Strasbourg’s Jurisprudence 83
4.2. Historical argument in Strasbourg’s jurisprudence;
historical contextualisation and constitutional tolerance 85
4.3. The insufficiency of historical argument (Sejdić and Finci v.
Bosnia-Herzegovina 2009) 88
4.4. The flight from the Communist past 90
4.5. Principle of secularism and historical traditions 94
4.6. The use of historical argument: open questions 95
4.7. Denying historical truth: an abuse of law 96
4.8. Towards a conclusion: protection of historical traditions
or critical historical method? 101
Table of Cases (European Court and Commission of Human Rights) 102
5. Historical Denialism and the Limits on Freedom of Expression
in the European Public Sphere 105
5.1. Juridifying the Past: Holocaust Denial as a Problem of
European Constitutionalism 105
5.2. The Criminalisation of Denialist Conduct in Europe: The
German Case and the “Auschwitz” Decision of the Constitutional Court 107
5.3. The French Case: From the Loi Gayssot-Fabius to the Lois
mémorielles 109
5.4. The Spanish Case and the Contribution of the Constitutional Court 112
5.5. The European Court of Human Rights and Holocaust Denial:
Between Freedom of Expression and Abuse of Rights 114
5.6. Towards a Harmonisation of National Laws?
The EU Framework Decision on Combating Certain Forms
and Expressions of Racism and Xenophobia by Means of Criminal Law 117
5.7. The Introduction of an Aggravating Circumstance
of Denialism in Italian Law 118
5.8. Conclusions 121
Bibliographical Note 122
Table of Legislation 125
Table of Cases 127
Andrea Buratti is Full Professor of Comparative Public Law at the Department of Law of the University of Rome Tor Vergata, where he teaches Comparative Public Law and Fundamental Rights. His scholarship focuses on modern and contemporary constitutionalism, with particular attention to constitutional history, parliamentary and presidential government, and the evolution of fundamental rights in the European and transatlantic legal spaces. His research is characterized by an interdisciplinary approach, engaging in dialogue with history, political theory, and the social sciences. He is the author of numerous monographs and essays published in Italy and abroad. He is co-editor of «Rivista di Diritti Comparati» and of the blog diritticomparati.it.
- 20/09/2021 - La Rassegna della Letteratura Italiana - Vedi
Titolo
The Place of History in Fundamental Rights’ Adjudication
Sottotitolo
Essays on Balancing and Constitutional Interpretation in the United States and Europe
Autori
Andrea Buratti
Pagine
128
Anno di edizione
2026
Editore
TVUP
Collana
Law and Society
DOI
10.35948/TVUP/979-12-82347-19-8
Supporto
Digital
Formato
E-ISBN
979-12-82347-19-8
Condizioni di vendita
Open Access