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Perry on Rights, Constitutions, & Courts

By Lawrence Solum

Michael J. Perry (Emory University School of Law) has posted Rights, Constitutions, Courts on SSRN. Here is the abstract:

1. Why entrench certain rights - certain rights of the sort we today call human rights - in a constitution, rather than solely in legislation? 2. We could sensibly entrench such rights in a constitution without empowering courts to enforce the rights. Albert Venn Dicey, in An Introduction to the Study of the Law of the Constitution (1885), wrote : ?The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.? Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights - qua ?maxims of political morality? - can serve as shared, fundamental grounds of political-moral judgment in a political community. So, why empower courts to enforce - and therefore to interpret - constitutionally entrenched rights? 3. If the judiciary is to be empowered to enforce constitutionally entrenched rights, how great a power should it have? The power to have the last - the ultimate - word, overrulable only by constitutional amendment or by the judiciary itself? (I have called this the power of judicial ultimacy.) Or the power to have only the penultimate word, overridable by legislation? (I have called this the power of judicial penultimacy.) Or some even lesser power? We see the power of judicial ultimacy exercised in the United States, by the federal judiciary, and the power of judicial penultimacy exercised in (for example) Canada. We see an even lesser power exercised in the United Kingdom, under the Human Rights Act of 1998. 4. Given that, for better or worse, the U.S. Supreme Court exercises the power of judicial ultimacy, should it exercise that power deferentially, along the lines recommended by James Bradley Thayer in his classic essay ?The Origin and Scope of the American Doctrine of Constitutional Law? (1893)? Or should it exercise the power nondeferentially? Should Thayerian deference be at least the default position - with exceptions for certain categories of cases? What categories? 5. What does it mean to ?interpret? the Constitution. What should it mean?

Full post as published by Legal Theory Blog on September 14, 2010 (boomark / email).