Rights and Opinion: Or, The Progress of Sentiments

Abstract

Abstract What is the relationship between minorities and majorities within the liberal constitutional order, and what role ought courts play in defining that relationship? This paper approaches the question first by establishing a framework of analysis which, drawing on work of David Hume, isolates three often undervalued features of constitutional order: the idea of the constitution as a going concern; the idea of the constitution as a complex whole; and the idea of the constitution as a framework of moral sentiment. These themes are explored in a study of contemporary British constitutional politics, an example of a stable constitution in flux. Britain continues to struggle with the Human Rights Act and the new prominence it accords to rights in constitutional debate. Reflecting on this case study, the paper argues that, when it comes to thinking about constitutional change, we should pay more attention to the imaginations of our fellow citizens, and their limits, aiming to enlarge our moral horizons in a way that aligns them with what is best within existing practices.