Lüth and the ‘objective system of values’:from ‘limited government’ towards an autonomy-based conception of constitutional rights

Forthcoming in S. Choudhry, M. Hailbronner & M. Kumm, eds., Global Canons in an Age of Uncertainty: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford University Press, 2022). In its Lüth judgment of 1958, the German Federal Constitutional Court famously claimed that the German Basic Law erects an ‘objective system of values’ (objektive Wertordnung) in its section on rights. This paper shows that Lüth was the birth hour of the now globally dominant conception of constitutional rights, according to which rights are not primarily concerned with the limitation of the power of the state (or ‘limited government’) but rather with the adequate protection of the right-holder’s personal autonomy. As an exception to this trend, the paper considers and discusses the U.S. Supreme Court’s judgment in DeShaney v. Winnebago County of Social Services. It concludes by spelling out some of the implications of the commitment to an autonomy-based conception of rights and outlines how these have been addressed in the theoretical literature in the decades since Lüth was decided, including in the theories of rights as principles (Robert Alexy), judicial review as Socratic contestation and as giving effect to the fundamental right to justification (Mattias Kumm), the culture of justification (Moshe Cohen- Eliya and Iddo Porat, among others), and the global model of constitutional rights (in my own work).