Constitutional Rights and the Problem of Legal Authority

Abstract

This article responds to a puzzling gap in the otherwise extensive literature on constitutional rights and judicial review: a lack of attention to the authority of constitutional rights. Defenders and critics of judicially enforceable constitutional rights typically argue on grounds of political morality, contending that democratic legal systems should (or should not) adopt constitutional rights as a matter of policy. That issue becomes irrelevant if the subjects of constitutional rights – government officials, legislators, judges, citizens – have little or no good reason to obey those rights. This is a question of legal authority; but most treatments of constitutional rights ignore it.The article begins to fill that gap by assessing the two dominant strains of rights-justification, Substantive and Procedural justifications, as accounts of legal authority. Substantive justifications defend constitutional rights as means of promoting morally good results; prominent theories from Alexander Hamilton’s to Alexander Bickel’s to Randy Barnett’s are types of Substantive account. The author argues that Substantive justifications, while intuitively appealing and therefore common in public and political discourse, fail to persuasively explain the necessary authority of constitutional rights. In contrast, Procedural justifications defend constitutional rights as means of settling disputes about good results; the “representation-reinforcement” approach of John Hart Ely and Carolene Products Footnote Four is the best-known Procedural account. The article contends that Procedural justifications fare considerably better than their Substantive rivals as accounts of constitutional authority. In short, people have better reasons to obey constitutional rights on the Procedural approach – a considerable point in its favor, to say the least.