Constitutional rights and the limits of judicial review

Abstract

Central to legal constitutionalism is the idea of constitutional rights. Constitutions do many things beyond enshrining rights. But probably nothing has been so influential in driving constitutionalism along the paths of legal rather than political thought than the emphasis on rights, their entrenchment in a constitutional document and their interpretation and elaboration by a supreme or constitutional court. It is this rights focus that gives contemporary constitutionalism its whole juridical cast, whereby a constitution's task is viewed as being to embody the substance of fundamental law rather than to provide a fundamental structure for law-making. Of course, few people would deny that individuals have certain fundamental interests that should be legally and politically protected. However, a commitment to rights is different to assuming their protection requires their entrenchment in a bill of rights overseen by a constitutional court. Three reasons standardly motivate this position and lie at the heart of legal constitutionalism. First, rights-based judicial review is said to guard against majority tyranny and fecklessness. Though democracy offers a vital mechanism for citizens to pursue their interests and throw out governments that wilfully or negligently override them, prejudice, self-interest or simple thoughtlessness can lead majorities to pass legislation that oppresses minorities or even unwittingly works against their own concerns. Second, the integrity of law is said to depend on rights. Laws often allow more than one interpretation when applied to a given case, or have to be adapted to novel circumstances.