Nature Of Constitutional Rights Research Articles

Carl Schmitt's “Tyranny of Values” in the Context of the Debate on the Nature of Constitutional Rights

Discussions about the nature of constitutional rights set out in the Constitution emerged in post-war Germany in the late 1950s and early 1960s, triggered by the judgement of the German Federal Constitutional Court in the so-called “Lüth case”. In this judgement, for the first time, the Court clearly articulated the position that fundamental rights are an objective value system that extends its legal force to all branches of law, including civil law. One of the fiercest critics of the Court decision was Ernst Forsthoff, a disciple of Carl Schmitt. In a series of articles, he attacked the “value” legal interpretation, pointing out that it leads not only to the destruction of the legal method and the loss of jurisprudence autonomy, but also to changes in the institutional structure of the state. E. Forsthoff’s criticism was predominantly juridical, focusing on the actual law enforcement, as well as on the theoretical-legal origins of value interpretation which he found in R. Smend’s “integration theory”. In contrast, C. Schmitt, in Tyranny of Values, practically omitted legal arguments and attacked the philosophical basis of the German Court’s position. Relying on M. Weber, the German legal scholar attempted to demonstrate that the adoption of value interpretation by constitutional justice means the direct application of values, which destroys the rule of law. Despite the different trends of criticism, the conclusions reached by E. Forsthoff and C. Schmitt show a significant similarity in that both call for the autonomy of legal science and a return to the formal legal state.

The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny

The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny

A Non-positivistic Concept of Constitutional Rights

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights.

Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment (Introduction)

This article develops a novel framework for rights adjudication responsive to an age of bitter partisan polarization. What warrant do judges have to resolve deep conflicts over values in a pluralistic political order? In the American constitutional tradition, the answer has historically turned to doctrinal categories, which draw strength from a claim about expertise: the judicial skill to interpret categorical boundaries beyond which democratic decision-making must not reach. But the categorical approach, as Professor Jamal Greene has powerfully argued in a recent article, risks embracing the absolute nature of constitutional rights as ‘trumps’. It distorts, or simply ignores, salient values and thus further alienates citizens from one another. Proportionality analysis, favored by Greene to replace categoricalism, offers a second answer. But proportionality gives rise to an important inverse dynamic. Proportionality conceives rights not as trumps but as interests and constitutional adjudication as the pragmatic balancing of those interests at singular points in time. While it can authentically claim to keep better track of competing values in the present and justify their infringement, proportionality nevertheless invites the objection that judges have neither the democratic pedigree nor relative competence to weigh the relevant costs and benefits. Proportionality thus strains the legitimacy of judicial review, I argue, by enforcing a rights-absolutism of its own. Proportionality holds the underlying substantive meaning of rights as a constant. It reduces the pluralism of rights adjudication merely to the variable extents to which this content can justifiably be limited or infringed in any individual case of conflict. This loses a crucial achievement of American constitutional theory: the idea that paradigmatic judicial interpretations of rights trace the self-authorship of a democratic polity over time. To the same degree as categoricalism, albeit by different means, proportionality analysis undermines the institutional, hermeneutic, and political resources to transcend or accommodate difference. The article makes two broad interventions in response to these considerations. First, it cautions against a flawed normative overcorrection in the suggested turn from categoricalism toward proportionality in US constitutional interpretation. It reconstructs the variant of absolutism at work in each mode of rights interpretation in light of two distinctive (and unsound) paradigms of constitutional democracy. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence employing proportionality analysis—and examine how such limitations align neatly with those criticisms Greene levels at American categoricalism in various areas of US constitutional law. Second, the article offers an alternative. American constitutional theory requires a novel guiding light, which I term ‘narrative doctrinalism’. On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless, simply to be narrowed or infringed where particular conflicts dictate. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution is likely to guide—for good or ill— how the Court will dispose future analogous conflicts among rights regimes in other areas of law.

Constitutional Rights and Proportionality

There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235.

Reason for Hope? The Spotted Owl Injunctions and Policy Change

Under what conditions can US courts contribute to policy change? This article shows how a case study can be used to test and develop a theory of judicial policy making answering this question. In The Hollow Hope (1991, 2008), Gerald Rosenberg theorizes that judicial policy making is constrained by the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's inability to implement its rulings. Ninth Circuit injunctions protecting the Northern Spotted Owl and orders to manage ecosystems in the Pacific Northwest invalidate and help reformulate Rosenberg's theory. These rulings show how judicial interpretations of statutes, regulations, precedent, and facts allow judicial policy making if these interpretations are accepted by the legal and political culture when Congress and the presidency are too divided to override them. The owl rulings also show how statutes facilitate the implementation of judicial rulings, a point not developed by Rosenberg, while additionally providing further evidence for Rosenberg's specification of conditions allowing implementation.

Rights and Liberty in the European Union

This paper begins by employing the methodology of political economy to describe the nature of constitutional rights. Citizens are assumed to write a constitution that will advance their future collective interests. Rights are seen to emerge as substitutes for the unanimity rule. This concept of rights is then applied to the question of how rights should be defined in the European Union. The answer to this question is shown to depend on whether the Union is organized as a federation or a confederation. The theory of rights is then used to critique the Charter of Fundamental Rights of the European Union, and to question whether this Charter should be made a part of a new European Union constitution.

The Heterogeneity of Rights

What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional rights. For example, it would be perfectly consistent to treat free exercise of religion as act-shielding while treating freedom of speech as rule-dependent, or vice-versa. Although a certain conception of the rule of law may lead judges to favor rule-dependence generally, the weight to be given to rule-of-law values, and the weight of countervailing considerations, will vary from context to context. The second doctrinal puzzle involving the relation between rights and rules involves the question of when the courts will entertain a challenge to a statute or other legal rule on its face as opposed to as applied to some particular set of facts. This Article argues that knowing whether a given right is understood as a right against rules or conduct-shielding is not a sufficient basis for knowing whether, and under what circumstances, a court should strike down a rule infringing that right. The key to these questions is severability. A facial challenge should only succeed if there are constitutional, statutory, or pragmatic grounds why a court may not presume the severability of the challenged law's valid and invalid applications. These grounds will be present to greater or lesser degrees depending upon the nature of the right and the nature of the rule infringing the right. Thus, rights are profoundly heterogenous.

Towards a Critical Theory of Constitutional Law: Hegel's Contribution

In this article we will present an account of Hegel's critical theory of citizenship within the modem state. This account constitutes a potential resource for those who seek to engage in a critical analysis of the foundation, legitimacy, and manner of application of some key doctrines and assumptions of orthodox constitutional law. A Hegelian approach is shown to provide a distinctive, and arguably superior, conception of the nature of constitutional rights and freedoms: one which provides us with an alternative to the one-sidedness of both negative liberal rights and those positive entitlements which are parts of the ideology of state socialism. With particular reference to its implications for existing Western-liberal institutions and conceptions of citizenship, the first section sets out the nature of a Hegelian conception of 'immanent critique'. The second section presents a Hegelian conception of participatory citizenship; whilst the final section discusses Hegel's self-consciously historical approach to both the ideals and potential of a rational constitutional state. The overall argument is that an adequate theory of constitutional law must combine into a coherent totality the concreteness of both historical and critical elements, with the intellectual rigour of conceptual analysis and theoretical justification. Hegel's account of constitutional law is relevant since it offers us a rare example of such a combination.