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6 - The Rights of ‘Others’ in Domestic Constitutions

Towards an Equality-Based Approach?

from Part II - The Operation of Legal ‘Othering’ and the National–Foreigner Dichotomy in the EU

Published online by Cambridge University Press:  13 November 2020

Moritz Jesse
Affiliation:
Universiteit Leiden
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Summary

This chapter highlights the potential of domestic constitutional law to curtail the legal 'othering' of non-citizens at the national level, using Ireland as a case study. The chapter begins by looking at Irish national identity as enshrined in the text of the 1937 Constitution. It finds that, despite the strong Catholic and nationalist influences on the constitutional text, it should be flexible enough to accommodate new perceptions of Irishness in what is now an immigrant-receiving society. The second part of the chapter explores domestic constitutional case-law on the rights of non-citizens, focusing on a recent Supreme Court decision which clarifies that constitutional rights must extend to non-citizens where to find otherwise would contravene constitutional principles of dignity and equality. It is argued that this reasoning effectively collapses the distinction between citizen and non-citizen as rights-bearers in the constitutional order.

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Chapter
Information
European Societies, Migration, and the Law
The ‘Others' amongst ‘Us'
, pp. 107 - 129
Publisher: Cambridge University Press
Print publication year: 2020

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