The common assumption is once again the notion (not so much articulated as put into practice) that the constitution in principle gives the interpreter a free choice of the different theories; no theory is ruled out, and the interpretation of the fundamental rights can be based on any of them, whether generally or on a case-by-case basis. It is precisely this assumption that needs to be challenged critically.
Preface
The language of justification pervades the adjudication of constitutional rights. Rights-claimants must justify their claims about the protections that rights afford, while governments must justify their claims about the restrictions to which rights may be subject. These practices raise a fundamental question: What justifies judgments about constitutional rights? In recent decades, attempts to answer this question have become hopelessly deadlocked.
Among constitutional scholars, the standard view is that constitutional justification raises no distinctive moral principles. Instead, constitutional justification is an exercise in ordinary moral justification. Of course, proponents of the standard view often disagree about what is morally desirable, but they share the broader idea that what morality demands is fully comprehensible and specifiable apart from constitutional law. Constitutional justification, then, is simply moral justification on a larger stage.
My aims in this Element are both critical and constructive. As a critical matter, I will demonstrate that the standard view generates an impasse between two competing theories of constitutional rights. The first engages in legally unconstrained moral reflection to identify the protections that fall within the scope of a right. The second engages in legally unconstrained moral reflection to determine the strength that a right possesses with respect to opposing considerations. While these theories polarize constitutional thought, I will show there is no basis for preferring either one. Each begins by affirming the standard view, and each concludes by (1) abandoning the rule of law, (2) rendering constitutional rights incapable of regulating the exercise of public power, and (3) disregarding constitutional text. In the impasse that ensues, each theory “is able to make the other look quite bad” but unable to defend itself.Footnote 1
As a constructive matter, I will formulate an alternative to the standard view of constitutional justification. I will argue that, far from being an exercise in ordinary moral reasoning, rights-based constitutional order is a distinctive moral project with its own corresponding justificatory method. This method escapes the impasse to which the standard view inevitably succumbs.
The moral project of rights-based constitutionalism consists in rendering all public authority accountable to the inherent rights of each legal subject.Footnote 2 Rights-based constitutional order is not synonymous with constitutional rights. Earlier forms of governance recognized that persons are bearers of rights (rather than merely subject to duties); that these rights are inherent (rather than acquired and revocable); that these rights are universal (rather than the preserve of a privileged few); that the basic function of government is to respect and protect these rights (rather than to pursue the private ends of those who happened to hold public power); and that these rights must possess the force of supreme law (rather than ordinary law). However, these innovations failed to confront a basic difficulty. Because legal subjects had no way of vindicating their rights, public authorities remained capable of violating rights with impunity, whether though neglect, inadvertence, or persecution. In short, the presence of constitutional rights did not establish the absence of plenary power.
Rights-based constitutional order confronts this difficulty by introducing a further innovation, the constitutional complaint.Footnote 3 This practice enables any individual to come before a politically independent judicial body to challenge the validity of any act or omission of any public authority as a violation of a constitutionally guaranteed right. By transforming rights from “a mere guideline of a political, moral, or philosophical nature” into justiciable constitutional norms,Footnote 4 rights-based constitutional order reorients the relationship between ruler and ruled. Within rights-based constitutional order, no public authority possesses plenary power and no legal subject stands at the mercy of their government. Instead, rights-based accountability constrains every public authority and safeguards every legal subject.
The emergence of the constitutional complaint raises a new question: What makes the resolution of a constitutional complaint justified? From the standpoint of the standard view, one answers this question by taking the existence of constitutional complaints for granted and then asking, all things considered, how they should be resolved. From this standpoint, there are as many theories of constitutional justification as there are schools of moral philosophy, and any attempt to establish the primacy of a particular theory is fraught with difficulty. However, from the standpoint of the moral project of rights-based constitutional order, the justificatory landscape could not be more different. The practice of constitutional adjudication (and the vast scholarly literature that it has spawned) offers opposing methods of resurrecting plenary power, but only one method that actualizes the accountability of all public power to rights. I call this method the system of rights. My aim in this Element is to articulate its structure and significance.
I proceed as follows. Section 1 explores the impasse of constitutional thought by expounding the standard view, the opposing theories that it generates, and the vulnerabilities that these theories share. Section 2 contrasts this justificatory structure with that of the system of rights. From the standpoint of the standard view, a constitutional judgment is justified only if it corresponds to moral demands that are conceivable and specifiable apart from rights-based constitutional order. In contrast, from the standpoint of the system of rights, a constitutional judgment is justified only if it is supported by a form of reasoning that maintains the accountability of all public power to rights. Unlike the standard view, this form of reasoning can neither be comprehended nor specified apart from rights-based constitutional order.
Sections 3 and 4 elaborate this form of reasoning by exploring two doctrines integral to rights-based constitutional ordering, purposive interpretation and proportionality. Proponents of the standard view typically insist that these doctrines are either dangerous distractions that draw attention away from the freestanding moral considerations that really matter or benign invitations to engage in legally unconstrained moral reflection. In contrast, the system of rights shows that these doctrines play an indispensable role within the distinctive moral project of rights-based constitutional order. From the standpoint of this moral project, what is most striking about these doctrines is that if one abandons even a single component – or if one alters the sequence in which these components appear – the constitutional complaint would fail to render public authority accountable to rights, and legal subjects would find themselves, once again, at the mercy of a plenary power. Accordingly, the structure and substance of these doctrines can be elucidated on constitutional law’s own terms. Section 3 justifies purposive interpretation and explains how it regulates judgments concerning the scope of rights, while Section 4 justifies proportionality and explains how it regulates judgments concerning the strength of rights.
Section 5 concludes that the system of rights possesses decisive advantages over the standard view of constitutional justification. The standard view creates an impasse between competing theories that are jointly incapable of taking the rule of law, the regulative character of constitutional rights, or constitutional text seriously. The system of rights, in contrast, avoids each of these difficulties and expounds the normative connection between rights-based constitutional order and its most fundamental doctrines.
1 The Impasse
In his classic essay “Taking Rights Seriously,” Ronald Dworkin surveyed the constitutional landscape and observed “two very different models” of constitutional rights.Footnote 5 The first defines rights broadly and then balances them against “the demands of society at large.”Footnote 6 The second regards balancing with suspicion and seeks to carefully delineate the “definition of a particular right.”Footnote 7
In the last fifty years, these models have become increasingly systematic and antagonistic. With respect to their systematicity, each model elaborates the structure of constitutional rights and a corresponding method of interpretation and adjudication. With respect to their hostility, each model seeks to establish its superiority by demonstrating that the other defies the rule of law, renders constitutional rights nugatory, and disregards constitutional text.
This section (1) explains why constitutional thought has splintered into these opposing models; (2) formulates a succinct and systematic statement of the structure of each model; (3) shows that each model is vulnerable to the same objections; and (4) traces the vulnerabilities of these models back to their source: the shared idea that constitutional justification is simply ordinary moral justification.
1.1 Bentham’s Challenge
More than two centuries ago, when the idea that “[t]he aim of all political association is the preservation of the natural and imprescriptible rights of man”Footnote 8 began to transform the practice of constitutional law, the philosopher and social reformer Jeremy Bentham issued a fundamental challenge to all declarations of rights, both “actual and possible.”Footnote 9 His aim was to show, once and for all, that subjection to plenary power is an ineliminable feature of any legal order. Although the rights formulated in the declarations of his time (and the constitutions of our own) purport to establish a form of legal ordering in which each legal subject is protected from their government, Bentham argued that rights either leave public power unconstrained or supplant it with anarchy.
The structure of Bentham’s challenge is simple. Once rights are declared, they must stand in some relationship to legislative authority. Bentham postulated two possible relationships: legislation might exceed the strength of rights or rights might exceed the strength of legislation. Bentham termed the former possibility legal rights, the latter natural rights.
Legal rights, he explained, coexist with legislative authority but cannot constrain it. If legislation reigns supreme over rights, then a legislative authority may specify the scope of rights by placing their boundaries in whatever location it deems fit. But when the boundaries of rights are established by legislative authority, persons necessarily remain at its mercy: “Suppose a [declaration] to say – no man’s liberty shall be abridged, but in such points as it shall be abridged in, by the law. This, we see, is saying nothing: it leaves the law just as free and unfettered as it found it.”Footnote 10 Rights that are products of legislation afford no protection from legislation.
Whereas legal rights are powerless to constrain legislation, legislation is powerless to constrain natural rights. Because the strength of natural rights exceeds that of legislation, there is no right to which “any government can, upon any occasion whatever, abrogate the smallest particle.”Footnote 11 Natural rights are thus “imprescriptible” (or as we might say, conclusive, peremptory, or inviolable).Footnote 12 And because natural rights are formulated in “words and propositions of the most unbounded signification”Footnote 13 – for instance, protecting the “[u]nbounded liberty” to do or not do “on every occasion whatever each man pleases”Footnote 14 – the scope of natural rights encompasses all conceivable forms of human conduct. Bentham famously denounced this combination of ideas as “nonsense upon stilts”Footnote 15 because if rights have both the strength of supreme law and a scope that extends boundlessly, legislation cannot so much as “stir a step.”Footnote 16 For Bentham, the very notion that rights reign supreme over legislation imperils legislative authority: “[F]rom this declaration of rights, learn what all other declarations of rights – of rights asserted as against government in general, must ever be, – the rights of anarchy – the order of chaos.”Footnote 17 In their eagerness to ensure that persons were not placed at the mercy of legislative authority, defenders of natural rights repudiated the very possibility of legislative authority regulating human conduct.
Bentham’s challenge asks how rights can be reconciled with legislative authority. If the strength of legislation exceeds that of a right, as in the case of legal rights, then the scope of each right lies wherever legislation happens to place it and persons find themselves “at the mercy and good pleasure of the law.”Footnote 18 Alternately, if the strength of rights exceeds that of legislation, as in the case of natural rights, then rights preclude the very possibility of legislative authority regulating human conduct. Rights, then, are either subordinate to legislative authority or preclusive of its exercise. Between these “two rocks,” Bentham maintained, defenders of rights seek a middle ground that does not exist.Footnote 19 Whether one affirms legal or natural rights, the simple claim that rights both coexist with legislative authority and yet constrain its exercise has no basis.
Bentham’s critique of natural rights is propelled by two ideas: a fundamental insight that every theory of supreme law rights accepts, and a fundamental misconception that every contemporary theory of constitutional rights rejects. The insight is that a theory of constitutional rights must offer an account of both the scope and strength of rights. The scope of a right consists in the protections that it secures. The strength of a right consists in its power to withstand opposing considerations. Bentham’s misconception is that any theory of constitutional rights must claim both that rights are boundless in their scope (insofar as they encompass all human conduct) and unyielding in their strength (insofar as any legislation that violates a constitutional right is invalid). Bentham’s achievement in his famous essay was to show that these claims cannot travel together. What he failed to establish is that these claims exhaust the possible understandings of constitutional rights.
1.2 Two Models of Rights
In the centuries that followed Bentham’s intervention, proponents of constitutional rights fragmented into two opposing camps. Each accommodates his insight that if constitutional rights are to regulate (rather than preclude) legislative authority, they cannot be both boundless in their scope and absolute in their strength. And each camp retains Bentham’s understanding of either the scope or the strength of constitutional rights, while mitigating the rigor of the other component. What I will call the absolutist model conceives of rights as unlimited in strength but limited in scope.Footnote 20 What I will call the relativist model reverses these commitments by conceiving of rights as limited in strength but unlimited in scope.Footnote 21 Each approach mirrors the other’s structure: relative rights are broad but subject to restriction; absolute rights are specific but immune from incursion. The structures of Benthamite legal rights, Benthamite natural rights, absolute rights, and relative rights are contrasted in Table 1.
Table 1 Models of rights
| Benthamite Legal Rights | Benthamite Natural Rights | Absolute Rights | Relative Rights | |
|---|---|---|---|---|
| Scope | Limited | Unlimited | Limited | Unlimited |
| Strength | Limited | Unlimited | Unlimited | Limited |
The scope of relative rights encompasses “every form of human activity.”Footnote 22 They include not only the “classical catalogue” of “freedom of speech, association, religion and privacy, narrowly conceived,”Footnote 23 but also “relatively trivial interests.”Footnote 24 Rights relativism animates the German Federal Constitutional Court’s interpretation of Article 2(1) of the Basic Law – the right to the free development of one’s personality – as a “right to do as one pleases.”Footnote 25 By conceiving of this right as guaranteeing “freedom of action in a comprehensive sense,” the Court has held that persons have a prima facie right to do a variety of “mundane things,” including “a right to ride horses through public woods, feed pigeons in public squares, smoke marihuana and bring a particular breed of dogs into the country.”Footnote 26 Proponents of the relativist model are eager to extend the frontiers of constitutional rights still further. Relativist rights protect not only conduct that is moral and amoral, but also conduct that is immoral.Footnote 27 If there is a prima facie right to do as one pleases, then there must be a prima facie right to do wrong, whether by engaging in defamation, theft, or even murder.Footnote 28
When the relativist model turns from the scope of rights to their strength, it holds that rights are simply prima facie claims that enjoy “no priority over countervailing considerations of policy.”Footnote 29 These claims about the scope and strength of rights are connected. Because the scope of a relative right is not confined to matters of “special importance,” a relative right possesses no “special normative force.”Footnote 30 Within this model, the central question that constitutional rights raise is not whether a person has a prima facie right to engage in a particular activity. Since Bentham’s day, proponents of the relativist model have insisted that persons have a “right to everything indiscriminately.”Footnote 31 Instead, the central question concerns the strength of rights, more specifically, whether public authorities are justified in restricting a prima facie right in a given context.Footnote 32 The relativist answer is that, where the moral reasons that support constitutional protection are outweighed by the reasons that oppose it, a prima facie right is susceptible to restriction. Alternately, where the moral reasons that support constitutional protection outweigh those that oppose it, the restriction of a prima facie right is morally unjustified.Footnote 33
Proponents of the relativist model claim that its virtues extend in two directions. On the one hand, the model purports to capture the appropriate relationship between legislation and morality. Legislative authority is constrained whenever the moral reasons that support constitutional protection outweigh the reasons that oppose it. Conversely, legislative authority is unconstrained whenever the moral reasons that oppose constitutional protection outweigh those that support it. On the other hand, the model claims to illuminate contemporary constitutional practice by offering an integrated explanation of why courts around the world recognize that rights possess a broad scope but a limited strength, as indicated by the presence of limitation clauses and the proliferation of the doctrine of proportionality, which culminates in the balancing of rights against opposing considerations.
In the eyes of its absolutist critics, rights relativism represents a “devaluation of [the] moral currency” of rights.Footnote 34 Having placed all human conduct within the scope of constitutional rights, the relativist account places “genuine and genuinely inviolable rights, such as the right of an innocent person not to be intentionally or negligently killed … on the same level as spurious (because inflated) claims of rights,” such as the right to kill the innocent.Footnote 35 Because the relativist camp insists that constitutional rights protect all human conduct, relativism ultimately dilutes the strength of genuine rights in order to ensure that spurious ones remain susceptible to restriction. In the resulting analysis, both the priority and the purpose of constitutional rights is lost. The priority of constitutional rights is lost because even though relative rights have the status of supreme law, they may be balanced against any consideration that opposes them. The purpose of constitutional rights is lost because relative rights may, in principle, be balanced away. Thus, absolutists complain that the relativist model converts constitutional prohibitions into permissions, with the result that whatever “the Constitution says cannot be done can be done.”Footnote 36 Wherever the relativist model prevails, “everything, even those aspects of our life most closely associated with our status as free and equal is, in principle, up for grabs.”Footnote 37
Absolutists insist that if we are to retain the simple idea that constitutional rights distinguish permissible from prohibited conduct, then the ideas that animate relativism must be inverted. Constitutional rights must be regarded not as prima facie claims that are forfeited whenever the opposing moral reasons are sufficiently weighty, but as inviolable moral conclusions. This claim about the strength of rights has ramifications for their scope. If a constitutional right prevails over any opposing consideration, the protections that a right affords must be confined to specific claims of overriding moral importance.Footnote 38 Whereas conflict is the “natural state” of relative rights,Footnote 39 it is an impossibility for absolute rights. When the scope of each right is carefully specified, rights cannot conflict with one another.Footnote 40 Nor do conflicts obtain between rights and considerations that are not themselves rights. Absolute rights have priority over such considerations and therefore cannot be opposed by them. So conceived, absolute rights are “specific high-priority requirements, and thus though their force is great, their scope is narrow.”Footnote 41
The central question surrounding the absolutist theory of rights is how one justifies what falls within (and what falls beyond) the adamantine boundary of a right. Absolutism has acquired a reputation for refusing to “disclose whatever reasoning in fact underlies the denial of protection.”Footnote 42 But sophisticated versions of absolutism delineate the scope of rights in this way:
[I]t is evident that the assertion, “A has a right to say X to B”, has hundreds if not thousands of possible legal meanings. Correspondingly, it has hundreds if not thousands of possible moral meanings within the moral discourse about what the morally just legal system should stipulate concerning acts of communicating X. No one of all these possible meanings is self-evidently the right moral claim. So the only way to specify the meaning of “right” in some claim of right – and then the only way to justify the restriction of the claim to this specified sense of “right” – will be to appeal to some principles which are pertinent in moral discourse but which are not expressed in terms of “rights.”Footnote 43
On this view, broadly formulated rights present a multiplicity of possible meanings. Since the scope of a genuine right must be specified, and since the sweeping language in which rights are often formulated does not privilege a single specification, one must determine the scope of a right by reference to “values and principles which need not be expressed in terms of rights.”Footnote 44 In other words, the scope of a right is to be ascertained by looking to some conception of morality, justice, or practical reason to which the scope of rights must answer and which, on pain of regress, can be fully explicated without reference to constitutional rights. For example, in the case of the right to free expression, one specifies the scope of the right by looking to morality to distinguish between those expressive acts that may be permissibly constrained – for example, perjury, defamation, false advertising, threats of violence, and obscenity – and those that must be permitted without exception – for example, “speech that is explicitly political.”Footnote 45 When the scope of an absolute right is appropriately specified, the right “brooks no restriction.”Footnote 46
The absolutist model claims to offer a method that takes both rights and morality seriously. The model takes rights seriously by insisting that they possess decisive strength against legislation. Because absolute rights are not susceptible to balancing, they cannot be balanced away. The model takes morality seriously by empowering it to delineate the scope of rights. When the scope of an absolute right is appropriately specified, rights echo whatever morality demands.
When absolutists attack relativists for indiscriminately placing both genuine and spurious rights in the balance, relativists respond that absolutism does not know itself. On the absolutist view, a genuine right is “designated only after the final interaction of all of the reasons bearing upon the justifiability of a given action.”Footnote 47 Once this designation occurs, balancing is precluded because genuine rights are absolute in their strength. However, the absolutist opposition to balancing is more rhetorical than real. Wherever the reasons bearing upon the justifiability of a given action divide into supporting and opposing reasons, absolutism offers no alternative to assessing the weight of the competing reasons. That is what balancing is. Even if absolute rights may not be placed in the balance, the scope of each right is nevertheless “the outcome of an underlying balancing approach.”Footnote 48 And since the “whole point” of absolutism is to determine the scope of genuine rights without engaging in balancing, the theory relies on the very method it repudiates.Footnote 49
Accordingly, the dispute between rights relativism and absolutism is ultimately about when to apply the label right. Whereas relativists apply this label to the inputs of balancing, absolutists apply it to the outputs of balancing.Footnote 50 Once the controversy is framed in this way, relativists maintain that the best approach is the one that balances the reasons that support and oppose constitutional protection in a given context in the most transparent and structured manner. Because absolutists purport to define the scope of rights without engaging in balancing, their inevitable engagements in balancing necessarily lack these qualities.Footnote 51
The leading models of constitutional rights diverge in structure but are similarly morally and institutionally indeterminate.
The absolutist and relativist models can be coupled with any external moral goal: liberal or communitarian, egalitarian or elitist, deontological or consequentialist, secular or sacred. The difference between these models is not the kinds of external moral goals that rights serve, but whether rights serve these goals with their scope or their strength. Debates between relativists and absolutists remain contentious, but nothing of any moral significance is at stake. When it comes to the question of how public authorities should respond to the various constitutional controversies of the day – whether issues of voting rights and electoral regulation, marriage equality, medical assistance in dying, the rights of prisoners and refugees, access to contraception and abortion, or environmental protection – relativists and absolutists speak in one voice in claiming that the exercise of public authority must conform to some external moral goal. Since each model facilitates the fulfillment of any such goal, their enduring dispute is devoid of any practical significance.
Matters of academic genealogy sometimes obscure the fact that relativism and absolutism can serve the same moral goals. To be sure, leading figures in the relativist camp have been liberals, while prominent absolutists have included social conservatives, scrupulously specifying the scope of constitutional rights to preserve religiously inspired understandings of intimacy, reproduction, and family life.Footnote 52 However, the contingency of this alignment is evident from the fact that the same moral goals are equally at home in either model. For example, Robert Alexy and Jürgen Habermas conceive of morality in terms of discourse ethics. However, when it comes to constitutional rights, Alexy leads the relativist paradigm, while Habermas affirms its absolutist counterpart.Footnote 53 Whether discourse ethics determines the scope of exceptionless rights or the strength of defeasible ones, discourse ethics inexorably prevails. Because each of the leading models of constitutional rights may be coupled with any external moral goal, opposing models may serve the same external goal.Footnote 54
So too, the same model of rights can house antithetical goals. For example, Ronald Dworkin’s liberalism stands in diametric opposition to John Finnis’s traditional Catholic worldview. And yet, when it comes to formulating a conception of constitutional rights, each defends the absolutist conviction that when the scope of a right is appropriately delineated, it binds without exception.Footnote 55
Just as the leading models of constitutional rights can accommodate any independent moral goal, so too they can accommodate any institutional arrangement. The relativist camp is compatible with judicial abdication to legislative determinations about the strength that rights possess, judicial imperialism that frustrates legislative authority at every turn, and everything in between.Footnote 56 The absolutist camp exhibits the same institutional flexibility. Absolutism can be coupled with the idea that the judicial role is to ensure that the exercise of legislative authority conforms to the conclusive constraints that rights impose,Footnote 57 or the claim that in a democracy, the appropriate role of the legislature is to delineate the specific boundaries of exceptionless rights.Footnote 58 Relativism is as indeterminate about who should have the final say about the strength of rights as absolutism is about who should have the final say about their scope. The dispute between these models lies elsewhere.
The fundamental dispute in constitutional rights theory, then, concerns whether morality at large determines the scope or strength of rights. Having explicated each of the leading models of constitutional rights, I will now argue that whichever side one takes in this dispute, the rule of law retreats, plenary power prevails, and fidelity to constitutional text is abandoned. I take up each of these issues in turn.
1.3 The Rule of Law Retreats
Whether external moral goals regulate the scope or strength of rights, the rule of law and its values of publicity, prospectivity, and consistency are lost.
As we have seen, the relativist model affirms the following ideas: all conduct falls within the scope of some constitutional right; all legislative acts or omissions that impact conduct infringe a constitutional right; acts or omissions that infringe a constitutional right must be justified; justification consists in balancing the reasons that support and oppose constitutional protection in a given context; and, finally, one ascertains the strength of these reasons by engaging in “general practical reasoning” that “lacks the constraining features that otherwise characterise legal reasoning.”Footnote 59 From the relativist standpoint, the correctness of a judgment concerning the strength of a constitutional right “depends upon value-judgments, which are themselves not controllable by the balancing procedure.”Footnote 60
The relativist claim that the strength of a constitutional right is determined by legally unconstrained moral reflection undermines the rule of law. As the absolutist theorist Francisco J. Urbina explains:
The values associated with [the rule of law] – such as certainty and predictability in human relations – are severely harmed, if not sacrificed, when we make law through legal categories that are so vague that they allow judges to reason morally on what is the best solution to the case, without any effective constraint imposed by the law. The law then becomes uncertain and unpredictable, and there is no guarantee that state power will be bound by clear and previously established legal rules, known by its subject, and applied equally to those in the same situation.Footnote 61
Under rights relativism, what a charter of rights ultimately protects is not a publicly established set of rules and principles articulating a particular understanding of the relationship between free persons and their government. Instead, a charter of rights protects the legally unfettered discretion to use the strength of rights as an instrument for advancing some external moral goal. The constitution is thereby reduced “to a formal shell, which … admits very different and even heterogenous ideas of order successively and simultaneously, without being upheld by one.”Footnote 62 There is nothing of the rule of law in this.
However, when absolutists excoriate their relativist counterparts for abandoning the rule of law, they issue an objection that is equally destructive of their own position. As we have seen, the difference between relativism and absolutism is not whether legally unconstrained moral reasoning determines what constitutional rights demand, but how it does so. Under the relativist regime, one determines the strength of rights by appealing to “first-order political morality.”Footnote 63 The result is that determinations about the strength of rights (and so too the constitutionality of legislation) are legally unconstrained. If one substitutes the word strength for scope, the same is true of absolutism. As we have seen, absolutists delineate the scope of rights by engaging in “unencumbered first-order normative argument.”Footnote 64 The result is that determinations concerning the scope of rights (and so too the constitutionality of legislation) lack legal restraint. Whether one sides with absolutism or relativism, legally unconstrained moral reflection determines what a constitutional right demands. Consequently, constitutional law finds itself incapable of controlling “the flood of variations in the interpretation of the fundamental rights.”Footnote 65 What a constitutional right requires may shift from judge to judge and from case to case. Accordingly, with respect to any constitutional controversy, legal subjects cannot ascertain what protections their rights afford, and officials cannot determine what duties they owe.
Debates between relativists and absolutists are often staged as though relativists affirm established constitutional practices while absolutists formulate a critical alternative. But neither model can make sense of the two-stage models that structures constitutional adjudication in courts around the world. In the first stage, the rights-claimant bears the burden of establishing the infringement of a constitutional right. In the second, the state bears the burden of justifying any infringement. Relativists and absolutists reject this two-staged model for a common reason: constitutional justification is a matter of legally unconstrained moral reflection, and such reflection occurs in a single stage. Accordingly, relativists and absolutists agree that one of the two stages is superfluous. The question is which one.
Absolutists retain the first stage and jettison the second:
[O]nly one step is necessary. Courts ask whether a given measure infringes a human right. If so, that measure is in violation of human rights … In order to establish whether a measure infringes a human right, the court will operate with an understanding of what that human right really requires.Footnote 66
From the absolutist standpoint, the content of a constitutional or human right “will turn on one’s understanding of what justice requires.”Footnote 67 When the scope of a right delineates an exceptionless claim of justice, any limitation contemplated by the second stage must be unjustified insofar as it would permit the very acts and omissions that justice prohibits in the first.
Whereas absolutists embrace the first stage and discard the second, relativists embrace the second and discard the first.Footnote 68 From the relativist standpoint, there is no point in delineating “the precise doctrinal boundaries between neighbouring rights, for example, the boundaries between the right to property and freedom of profession, or between freedom of expression and religion.”Footnote 69 Legislation invariably infringes at least one constitutional right – the liberty to do as one pleases. Thus, the relativist camp locates the fundamental moral question at the second stage, where the moral force of the reasons supporting and opposing protection is considered:
The focus of constitutional rights adjudication is on the second stage of rights analysis; and hence judges will be inclined not to develop any doctrines … regarding the first stage if they can resolve the case in a coherent and principled way at the second stage, namely by examining whether there are sufficiently strong reasons for the limitation of the interest at stake.Footnote 70
From the relativist standpoint, constitutional adjudication concerns the strength of rights as determined by “moral argument about the acceptable balance of reasons.”Footnote 71 Since the consideration of these reasons occurs in the second stage, the first is eliminable.
The rule of law cannot survive the two leading theories of constitutional rights. Absolutists engage in legally unconstrained moral reflection to determine the scope of rights, while relativists engage in legally unconstrained moral reflection to determine their strength. In the case of either theory, judgments concerning the constitutionality of legislation are not constrained by law. For rights-based constitutionalism to coexist with the rule of law, we must reject the idea that legally unconstrained moral reflection determines either the scope or the strength of rights. All-things-considered moral reasoning must find its home in the world of peer review, not judicial review. I summarize the argument in this section in Table 2.
Table 2 The rule of law
| The Role of Morality | The Retreat of the Rule of Law | |
|---|---|---|
| The Absolutist Model | Legally unconstrained moral reflection determines the scope of constitutional rights. | The idea that legally unconstrained moral reflection determines what a constitutional right requires is incompatible with the rule of law’s commitment to publicity, prospectivity, and consistency. |
| The Relativist Model | Legally unconstrained moral reflection determines the strength of constitutional rights. |
1.4 Plenary Power Returns
In the decades following the moral horrors of the Second World War, peoples around the world reflected on their own particular experiences of “tyranny and oppression by a political power unchecked by machinery both accessible to the victims of governmental abuse, and capable of restraining such abuse.”Footnote 72 In the spirit of never again, jurisdictions adopted “a new kind of constitutional norms, institutions, and processes … to protect the basic rights of individuals and groups, including the poor, racial and religious minorities, the young and the old, women and more generally, those traditionally deprived of fair and equal access to the law.”Footnote 73 By (1) recognizing that each legal subject is a bearer of inherent rights, (2) elevating inherent rights to the rank of supreme law, (3) establishing that inherent rights bind all public authorities, and (4) rendering inherent rights justiciable before legally expert and politically independent judicial institutions, rights-based constitutionalism seeks to create a legal order in which no person is simply at the mercy of their government.Footnote 74 Rights-based constitutional order is the alternative to forms of governance that subject persons to plenary power.
As we saw in §1.2, not all participants in the debate between absolutists and relativists affirm judicial review. But even among those who do, plenary power is merely relocated from a legislative to an adjudicative body. When absolutism directs the operation of judicial review, judges find themselves legally unconstrained when delineating the scope of rights. Conversely, when relativism directs the operation of judicial review, judges find themselves legally unconstrained when calibrating the strength of rights. In either case, the unconstrained moral reflection of adjudicators is substituted for the unconstrained moral reflection of legislators. While the institutional and argumentative mechanics of plenary power are rearranged, the subjection of legal subjects to plenary power remains intact.
In debates about the structure of constitutional rights, absolutists purport to occupy the “philosophical high ground” by maintaining that rights impose unshakeable moral obligations on public authorities. Every absolute right prevails on every occasion.Footnote 75 So long as one’s attention remains focussed on considerations of strength, absolute rights appear to protect their bearers. However, this protection proves illusory when one’s attention shifts from the strength of absolute rights to their scope. As absolutists explain, the scope of constitutional rights are “conclusions of practical reasoning about what ought to be done,”Footnote 76 “simply the entailments of the virtue of justice,”Footnote 77 and so on. The difficulty for absolutism, then, is that the claim that rights are indefeasible in strength is meaningless if judges are legally unconstrained when determining the protections that fall within their scope. Whenever the scope of an absolute right is specified, rights-bearers find themselves at the mercy of a plenary power.
Relativism takes the opposite path towards plenary power. Because prima facie rights encompass all human conduct, relativists claim to offer a comprehensive system of rights-protection. All legislative acts and omissions that impact conduct infringe one or more prima facie rights, and thus demand justification. While prima facie rights enjoy no priority over opposing claims, relativists insist that such rights are nevertheless “formidable weapons” that prevail whenever the moral reasons that support constitutional protection outweigh those that oppose it.Footnote 78 Relativists are correct to observe that prima facie rights might prevail. But, because relativism maintains that persons have a prima facie right to engage in any conduct whatsoever, the crucial issue is the basis on which judges are to determine the strength that such rights possess in various contexts. Relativism calibrates the strength of rights by directing judges to consider “the correct substantive theory of justice,”Footnote 79 “theoretically informed practical reasoning,”Footnote 80 and “all the relevant moral considerations.”Footnote 81 Accordingly, legally unconstrained moral judgment determines whether a prima facie right prevails or must yield to some opposing consideration. Because judges enjoy legally unfettered discretion when they calibrate the strength of rights, judges possess unlimited power over the fate of rights-bearers.
It is no answer for relativists and absolutists to claim that the inability of constitutional rights to constrain moral reflection allows for the most perfect justice. As absolutist critics of relativism have perceptively observed, the reason why legally unconstrained moral reasoning “can achieve the most perfect justice” is that it also “allow[s] for the most perfect injustice.”Footnote 82 However, absolutists remain serenely unaware of the ramifications of their own objection. If relativism is defective because it is incapable of imposing legal constraints on the moral reflection of judges, then absolutism is defective on the same ground. Within each model, the absence of legal constraint and the absence of legal protection are two sides of the same coin.
The leading models of constitutional rights offer no resistance to the notorious slogan: “Sovereign is he who decides on the exception.”Footnote 83 Under relativism, the sovereign decides on the exceptions to which rights are subject. Under absolutism, the sovereign decides that what is subject to an exception is not a right. In either case, constitutional rights are incapable of constraining judgments about how public authority should be exercised. Table 3 summarizes the argument in this section.
Table 3 The return of plenary power
| The Role of Moral Reflection | The Vulnerability of Rights | |
|---|---|---|
| The Absolutist Model | Legally unconstrained moral reflection determines the scope of a constitutional right. | Rights may be defined away. |
| The Relativist Model | Legally unconstrained moral reflection determines the strength of a constitutional right. | Rights may be balanced away. |
It is one thing to observe the contemporary world and lament the tendency of regimes to backslide away from arrangements in which constitutional rights regulate public authority. It is quite another to insist, with Bentham, that supreme law rights are incapable of regulating public authority. Here, the difference between the leading contemporary models of constitutional rights consists in the particular path that they take towards Bentham’s conclusion. This convergence raises a crucial question: Is there a method of justifying claims about the scope and strength of rights that does not betray the moral project of rights-based constitutional order by placing persons at the mercy of their government? I return to this question in Section 2.
1.5 Interpretive Strain
The leading models offer opposing answers to the question of how constitutional rights serve external moral goals. Absolutism claims that rights serve these goals with their scope. Relativism claims that rights serve these goals with their strength. When exposed to the routine provisions of modern charters of rights, each claim generates insuperable interpretive difficulties.
From the standpoint of rights relativism, the scope of the right to liberty (or autonomy) envelops every conceivable form of human conduct. Consequently, the general right to liberty renders a host of other constitutional rights redundant:
By definition, the scope of the general right to liberty includes the scopes of all specific liberties. From the fact that one is prima facie permitted to do and not to do as one pleases, it follows that one is prima facie permitted to express or not to express one’s opinion, to choose or reject a certain career, and so on.Footnote 84
Once the scope of liberty is enlarged to include all human conduct, less general rights leave no mark on the constitution’s meaning. Rights relativism “calls into question the necessity of a set of distinct constitutional rights. Nothing would be lost in theory by simply acknowledging one comprehensive prima facie right to personal autonomy instead.”Footnote 85 When actual charters of rights situate the right to liberty among other (often painstakingly formulated) rights, they speak in vain.
Whereas relativists are puzzled by the variety of constitutional rights, absolutists are puzzled by their generality. As we have seen, absolutists insist that the scope of each constitutional right is confined to specific forms of conduct that are “categorically exceptionless.”Footnote 86 This conviction stands in tension with the sweeping terms in which constitutions often formulate rights, protecting, for example, not the freedom to manifest a particular religious belief or practice on a particular occasion, but freedom of religion; not the right to associate with a particular person to advance a particular project, but freedom of association; and so on. The incongruity between the specificity of absolute rights and the generalities in which constitutional rights are formulated raises a dilemma. If constitutional text is taken seriously, one would expect the scope of a right to have some discernible connection to the language in which it is formulated. Absolutists resist this idea because if rights have a broad scope, the demands issued by one right might conflict with the demands issued by another. And if rights impose conflicting demands, then the absolutist claim that each specified right is exceptionless collapses. Alternately, if absolutists insist that constitutional rights have a narrow scope even when they are formulated in broad and sweeping language, then absolutism is open to the charge that it does not take constitutional text seriously.Footnote 87
Absolutists respond to this dilemma by insisting that any right formulated in general terms is not what it seems: “Rights might be stated in general terms … but rights actually are specified, so that the seemingly general right not to be killed, for example, which reads as a right not to be killed full stop, is truly the right not to be killed unjustly.”Footnote 88 Thus, the scope of a constitutional right is determined not by reference to the language in which it is formulated or the distinctive role that the particular right plays in the overarching constitutional framework, but by some independent moral theory that specifies exceptions to the general principle that the constitution affirms. As one absolutist puts the point, the “right to life involves an absolute right not to be killed unless I am threatening someone else’s life, or unless I commit a capital offense, or unless … ”Footnote 89 Wherever rights are formulated in broad and sweeping language, absolutists insist that the constitution does not mean what it says.
Just as relativists and absolutists encounter difficulty making sense of the framing of constitutional rights, so too they have difficulty making sense of limitation clauses.
Absolutism maintains that when the scope of a constitutional right is congruent with what is morally justified, the right is not susceptible to restriction. Accordingly, any restriction of any genuine right is morally unjustified. As a matter of constitutional design, absolutists characterize limitation clauses as “unnecessary” because constitutional rights can achieve justice apart from them.Footnote 90 When the question arises of how extant limitation clauses should be interpreted, absolutists insist that they must be understood as engaging the scope of rights rather than their strength.Footnote 91 On this view, a limitation clause signals that the scope of a constitutional right must be delineated in a morally justifiable manner.
As a general approach to the interpretation of limitation clauses of constitutions and regional and international rights-protecting instruments, the absolutist strategy cannot succeed. The central difficulty is that these clauses often explicitly state that restrictions apply to the scope of rights.Footnote 92 The influential limitation clauses that appear in the German Basic Law, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights indicate that the exercise of rights may be subject to justifiable restrictions or interferences.Footnote 93 These provisions directly repudiate absolutism’s organizing idea that whatever falls within the scope of a right possesses inviolable strength. When confronted by provisions that reject the basic architecture of their model, absolutists insist that these provisions must be disregarded because they employ “uncraftsmanlike language.”Footnote 94 In this way, absolutism arrogates to itself the power to negate a constitutional norm.
In contrast, the relativist model embraces the idea that the restriction of rights may be justifiable. From the relativist standpoint, morality should have a free hand to balance the reasons that support a right in a given context against those that oppose it, and then restrict the right in part or whole as morality demands.
However, relativism has difficulty with actual limitation clauses. For instance, some limitation clauses proscribe any restriction of the core or the essential content of a constitutional right.Footnote 95 Consider, for example, article 19(2) of Germany’s Basic Law: “In no case may the essence of a basic right be affected.”Footnote 96 Robert Alexy, the leading theorist of the relativist model, interprets this provision as follows:
[T]he essential core is what is left over after the balancing test has been carried out. Limitations which correspond to the principle of proportionality do not infringe the essential core, even if they leave nothing left of the constitutional right in an individual case. This reduces the guarantee of an essential core to the principle of proportionality. Since this applies anyways, this would mean that article 19(2) Basic Law simply has declaratory effect.Footnote 97
When confronted by a provision that categorically protects the essence of each right, relativists maintain that the essence of the right is what (if anything) survives balancing in a given context. And since balancing determines the extent to which rights may be restricted in all cases, rights are susceptible to being balanced away in their entirety.Footnote 98 Under relativism, a constitutional provision indicating that the core of each right is immune from restriction has no impact on the constitution’s meaning.
Instead of offering diverging understandings of how each provision within a charter of rights can be given effect, the leading theories of constitutional rights offer opposing visions of how a charter of rights might give effect to some independent moral goal. When these visions conflict with the text of a charter of rights, both camps distort or discard any provision that is inconsistent with their own theoretical commitments. Whichever model one adopts, the line separating constitutional interpretation from constitutional amendment vanishes, and every constitutional provision is rendered insecure. The argument in this section is summarized in Table 4.
Table 4 Interpretive strain
| Constitutional Rights | Limitation Clauses | |
|---|---|---|
| Rights Absolutism | The generality of rights produces interpretive strain. | The defeasibility of rights produces interpretive strain. |
| Rights Relativism | The variety of rights produces interpretive strain. | The indefeasibility of rights produces interpretive strain. |
1.6 Conclusion
The idea that constitutional justification is ordinary moral justification has divided constitutional thought into opposing theories that share the same defects. When one applies this justificatory idea to either the scope or strength of rights, one soon makes three further discoveries. The first is that what constitutional rights require is a matter of legally unconstrained moral judgment. The second is that constitutional rights are powerless to constrain these judgments. The third is that any constitutional provision that impedes the pursuit of an independent moral goal may be distorted or even discarded. The first discovery eviscerates the rule of law, the second resurrects plenary power, and the third denies the authority of constitutional text.
2 Constitutional Justification
In a remarkable article published in 1994, the South African public lawyer Etienne Mureinik expounded the significance of his country’s transition from Apartheid to rights-based constitutional order. He famously characterized the new constitution as a bridge that led away from a “culture of authority” towards
a culture of justification – a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.Footnote 99
This section explores a single question: What makes a justification cogent?
The two leading theories of constitutional rights, absolutism and relativism, offer the same answer: a justification is cogent when it tracks some moral goal that is fully comprehensible and specifiable apart from constitutional law. From this standpoint, constitutional law has no justificatory resources of its own. Constitutional law remains an empty vessel until it is filled with extrinsic justificatory resources. The previous section explained how this view destroys the rule of law (§1.3), deprives constitutional rights of the power to regulate the exercise of public authority (§1.4), and disregards constitutional text (§1.5).
This section formulates an opposing account of constitutional justification. I argue that rights-based constitutionalism possesses its own justificatory standards, which are neither comprehensible nor specifiable apart from rights-based constitutional order. These standards regulate the resolution of constitutional complaints by distinguishing between two forms of reasoning, one which renders public power accountable to rights and another that places legal subjects at the mercy of their government. Within rights-based constitutional order, a justification is cogent if it is supported by the mode of reasoning that maintains the accountability of all public authorities to rights.
2.1 Two Models of Justification
Attempts to justify claims about the scope or strength of constitutional rights presuppose a more basic question: What is justification? There are two ways of answering this question.
The first is Archimedean. While explaining the power of levers, the Greek mathematician Archimedes supposedly claimed that if he had a firm place to stand, he could move the entire world. This metaphor illustrates a long-standing theory in which justification proceeds by (1) observing some seemingly intractable dispute, (2) identifying a “firm and immoveable” point that lies beyond the dispute’s boundaries,Footnote 100 and (3) appealing to this point to resolve the dispute.Footnote 101 By invoking a “starting point” located some distance from the disputed terrain, Archimedeans purport to offer a critical perspective that its inhabitants fail to observe.Footnote 102 Justification, on this view, involves standing “outside a whole body of belief” and judging it “as a whole from premises or attitudes that owe nothing to it.”Footnote 103
In recent decades, constitutional scholars have increasingly invoked Archimedean justification to resolve enduring debates about what constitutional rights require. When applied to rights-based constitutionalism, Archimedean justification posits a division of labour between morality at large and the constitutional law of a particular jurisdiction. The task of morality at large is to provide a detailed blueprint of what is justified. The task of constitutional law is to give whatever is independently justified the force of supreme law.
The attraction of Archimedean justification lies in its promise to decisively resolve interminable debates about what constitutional rights require. But instead of contracting the domain of disagreement, Archimedean justification extends it in two directions.
First, Archimedean justification generates and perpetuates the dispute between absolutism and relativism. Archimedean justification generates this dispute because its organizing idea – appeal to some external moral referent to determine what constitutional rights demand – is fundamentally ambiguous. As Bentham recognized centuries ago, constitutional rights have two structural features: scope (consisting of the protections that the right affords its bearer) and strength (consisting of the power of the right to withstand opposing considerations). Because Archimedean justification makes no reference to the structure of a constitutional right, it does not indicate which of these structural features stands in need of justification. There are two ways of responding to this ambiguity. One might stipulate that morality imprints its conclusions by delimiting the scope of constitutional rights. Alternately, one might stipulate that morality imprints its conclusions by calibrating the strength of constitutional rights.Footnote 104 The former stipulation culminates in absolutism, while the latter culminates in relativism. The thought here is not that absolutism and relativism happen to affirm Archimedean justification. Rather, Archimedean justification creates absolutism and relativism. These theories are produced by the equivocation that arises when one attempts to apply some freestanding moral theory to the bifurcated structure of a constitutional right.
Once absolutism and relativism emerge, Archimedean justification renders their dispute irresolvable. As we saw in the prior section, there is no basis for privileging either model. Each model is (1) committed to the same conception of justification, (2) equally effective in bringing about any external moral goal, and (3) vulnerable to the same objections.
Archimedean justification invites further disagreement. Once one claims that constitutional rights should bring about some moral goal that can be fully grasped without reference to constitutional law, one must ask: Which independent moral goal should constitutional rights serve? Here Archimedean thought fragments into an array of opposing answers drawn from versions of natural law, the common good, libertarianism, liberalism, conservativism, communitarianism, perfectionism, feminism, utilitarianism, and so on. The result is that judgments about what constitutional rights demand are dragged in opposing directions by those who share the same conception of justification.
Constitutional scholars often conceive of justification in resolutely Archimedean terms. However, Archimedeanism is simply one conception of justification. Its distinguishing idea is that one understands a thing (constitutional rights) in terms of something else (an independent moral goal). The anti-Archimedean alternative lies in the idea that one understands a thing in terms of what it is rather than what it is not.Footnote 105 From the anti-Archimedean standpoint, the justificatory task is not to posit some external moral goal and then treat (either the scope or strength of) constitutional rights as an instrument of its realization, but to identify what is distinctive about rights-based constitutional order and to explore the justificatory ramifications of this distinctiveness.
For those steeped in Archimedean justification, anti-Archimedean justification may seem empty. After all, the call to Understand thing A in terms of thing A is hardly illuminating. Accordingly, Archimedeans sometimes claim that their counterparts are caught in a vicious circle, in which any conclusion merely restates the initial premise, establishing nothing.
This objection is perceptive but not decisive. It is perceptive insofar as anti-Archimedean thought moves in a circles. It is not decisive, however, because not all circles are vicious. Complex systems are comprised of multiple parts. Rights-based constitutional order encompasses a variety of components, including a charter formulating supreme law rights that protect each legal subject; provisions setting out the bases for the justified restriction of rights; institutional roles of legislative, executive, and adjudicative actors in the joint project of rights-protection; constitutional doctrines that determine the scope and strength of rights; constitutional conventions; norms governing constitutional amendments; and so on. Instead of stipulating some external moral goal that one or more of these parts should serve or insisting that each part is intelligible in isolation, anti-Archimedean justification conceives of these parts as components of
an elaborate network, a system, of connected items … such that the function of each item, each concept, could, from the philosophical point of view, be properly understood only by grasping its connections with the others, its place in the system – perhaps better still, the picture of a set of interlocking systems of such a kind.Footnote 106
Within anti-Archimedean thought, justification operates by identifying the parts of a complex whole, expounding the distinctive contribution that each part makes to the whole, and the way in which the whole captures the commonality of the parts. So conceived, anti-Archimedean thought moves in a circle that elucidates the coherent unity that obtains between the general and particular aspects of a thing.Footnote 107 Whether the resulting circle is narrow and empty or wide and illuminating is ultimately “a matter for judgment.”Footnote 108
These opposing conceptions of justification draw our attention towards different questions. Archimedean justification asks: What external moral goal should constitutional rights serve? Should the scope or strength of constitutional rights bring about that goal? In contrast, anti-Archimedean thought eschews reference to external moral goals and instead asks: Is there some moral project that is distinctive to rights-based constitutional order? What constraints does this project impose on judgments regarding the scope and strength of rights? Finally, do these constraints avoid the impasse of constitutional rights?
2.2 Rights-Based Constitutional Order
When constitutional lawyers and judges describe the moral significance of rights-based constitutionalism, they often characterize it as “a real revolution,” a “phenomenal development,” and a “fundamental innovation.”Footnote 109 Underlying these striking statements, I suggest, is the idea that when one abstracts from the variable features of rights-based constitutional orders scattered around the world – their distinctive histories and cultures, the ways in which they formulate rights and limitations, the doctrines that they employ and the holdings that their courts have handed down – what remains is a moral principle apposite to the relationship between rulers and ruled: every public act or omission is to be accountable to the inherent rights of each legal subject. Stated conversely: no legal subject is to be placed at the mercy of a plenary power. Elsewhere I have explored the roots and ramifications of this principle.Footnote 110 Here I can offer only a sketch.
What is a regime of plenary power? And what problem does such a regime raise for the familiar idea that individuals have rights against their government? A regime of plenary power does not necessarily deny that legal subjects have rights against their government. Such a regime might affirm rights held at common law, or pursuant to a statute, or as a matter of widespread political consensus. Nor is a regime of plenary power distinguished by the fact that its acts and omissions result in the systematic violation of rights. What distinguishes a regime of plenary power is its structure. A regime of plenary power is organized in such a way that (some or all) legal subjects are left without a mode of legal recourse through which their inherent rights can be vindicated. The result is that public authorities can violate those rights with impunity.
A regime of plenary power might be organized in different ways. When public authority rests in the hands of a single person (as in a monarchy or autocracy), every person is subject to plenary power. When public authority rests in the hands of the few (as in an aristocracy or oligarchy), the many are subject to plenary power. Finally, when public authority rests in the hands of the many (as in a majoritarian democracy), the few remain subject to plenary power. In each of these arrangements, whether inherent rights are respected and protected depends upon the very party that rights place under obligation. In the absence of legal structures that enable each legal subject to vindicate her rights, public authorities might ignore a complaint alleging the violation of a right, deny that the complaint amounts to a wrong, or concede the commission of a wrong but withhold a corresponding remedy. Accordingly, public authorities remain capable of violating rights with impunity, whether through neglect, persecution, discrimination, or even the extermination of rights-bearers.
The innovation of rights-based constitutionalism consists in the integration of a set of normative, institutional, and doctrinal commitments that are protective of the inherent rights of every person subject to the rule of law. As a normative matter, charters of rights articulate a set of supreme law rights that are to be enjoyed by each legal subject and that bind every public authority. Because these rights are conceived of as legally binding norms rather than mere “political-philosophical declarations,” rights-based constitutionalism requires an institutional structure for their vindication.Footnote 111 This structure enables each legal subject to challenge any public authoritative act or omission that violates any constitutional right by bringing a constitutional complaint to a judicial body that is both accessible to rights-bearers and politically independent. Within rights-based constitutional order, the enjoyment of one’s rights does not depend upon the mere good will or forbearance of the very authorities that rights place under obligation. Finally, as a doctrinal matter, constitutional practitioners in jurisdictions around the world have developed an anti-Archimedean methodology for resolving disputes about the scope and strength of rights. This methodology, I argue in the ensuing sections, avoids the shared defects of the leading models. Together, these normative, institutional, and doctrinal commitments create a form of legal order that does not merely acknowledge that each legal subject has rights that bind all public authority but enables each legal subject to hold every public authority accountable to rights-based standards.
The idea that no person should be at the mercy of a plenary power is a normative abstraction. While this idea distinguishes rights-based constitutional practice from other modes of legal organization, it does not provide a fine-grained blueprint of the various rights that persons possess, the ways in which rights may be limited, the remedies that are available when these rights are impermissibly breached, or the forum in which recourse may be sought. The role of positive constitutional law is not to replicate some perfectly determinate vision of morality, but to specify the abstraction that forms the internal moral goal of rights-based constitutional order.
This specification does not entail uniformity. Different normative and institutional arrangements are capable of rendering public authority accountable to the rights of each legal subject. As a normative matter, when it comes to “concretizing” the scope of basic rights, such as free expression, and their interrelationship with other rights, “a variety of national solutions are compatible with the basic guarantee. Universal recognition of freedom of speech does not require uniform legal solutions or interpretation.”Footnote 112 As an institutional matter, rights-based constitutional order might operate within a legal system that is unitary or federal, unicameral or bicameral, presidential or parliamentary, common law or civil law, and centralized or decentralized in its system of judicial review.
This account of the moral project of rights-based constitutional order cannot be subsumed within an Archimedean justification. As we have seen, Archimedean justification involves the relationship between two elements: an external moral goal and an instrumental means. The moral goal is external to rights-based constitutional order insofar as it can be fully comprehended without reference to it. In turn, rights-based constitutional order is conceived of as an instrumental means insofar as one might ask whether charters of rights in general, or the scope or strength of rights in particular, are the most effective means of realizing the moral goal. If it turns out that rights-based constitutional order is ineffective in serving the relevant moral goal, it may be discarded in favour of a more potent mechanism. Alternately, if rights-based constitutional order turns out to be an effective instrument, its moral significance consists in its causal power to realize some independent moral goal on an industrial scale.Footnote 113
Rights-based constitutional order is not explicable in terms of the relationship between an external moral goal and an instrumental means. As the long history of public law illustrates, in the absence of rights that possess the strength of supreme law, that protect each legal subject, that bind each public authority, and that are justiciable before a politically independent judicial body, certain public authorities retain the power to violate the rights of certain subjects with impunity. Instead of forming an instrumental (or possible) means of rendering the rights of each legal subject enforceable against their government, rights-based constitutional order is the exclusive means through which this moral project may be realized. To the extent that this form of legal organization is absent, the subjection of persons to plenary power prevails.
Turning from means to ends, the aim of ensuring that no person is subject to plenary power stands in a different relationship to rights-based constitutional order than the external moral goals that animate absolutism and relativism. This aim is internal to constitutional law insofar as it has a single domain of application, the constitutional law relationship between rulers and ruled. Beyond this relationship, this aim is “useless and inert.”Footnote 114 It has nothing to say about the moral assessment of human conduct as such. Accordingly, the alternative to conceiving of rights-based constitutional order as a possible means of achieving some independent moral goal lies in the idea that rights-based constitutional order is uniquely capable of making a distinctively constitutional form of moral practice possible.
2.3 The System of Rights
We can now return to our original question: What does it mean to say that a judgment about a constitutional right is justified? Archimedean and anti-Archimedean thought offers different answers to this question.
From the Archimedean standpoint, constitutional justification consists in the conformity of a judgment to some external moral goal – a “brooding omnipresence in the sky.”Footnote 115 Archimedeanism establishes this conformity through a series of stages. The first locates a fixed moral point that is both fully comprehensible and determinate apart from constitutional law. The second stipulates whether the scope or the strength of rights will serve as the instrument of that goal’s fulfillment. The third insists that doctrines that regulate the adjudication of constitutional complaints are either repugnant (insofar as they violate the conclusions that issue from all-things-considered moral reflection) or redundant (insofar as they reproduce the structure of all-things-considered moral reflection). The fourth discards any constitutional provision that stands in the way of any commitment that emerges in the prior stages. In this way, Archimedean justification explains how judgments about constitutional rights might give effect to fully determinate moral conclusions that obtain independently of them.
In contrast, anti-Archimedean constitutional thought does not begin with fully determinate moral conclusions and then insist that constitutional law is a tool for effectuating them. Instead, the anti-Archimedean approach proceeds through a series of stages that move from abstract towards more concrete ideas about the structure and significance of justification within rights-based constitutional order. The first (and most abstract) idea is that rights-based constitutional order requires a comprehensive form of accountability in which each public authority must answer to the inherent rights of each legal subject. This form of accountability is manifested through the constitutional complaint, the practice that distinguishes rights-based constitutionalism from other forms of governance. The second idea is that constitutional complaints must be adjudicated in accordance with a mode of reasoning that actualizes rights-based accountability rather than modes of reasoning that resurrect or perpetuate plenary power. The third idea is that purposive interpretation and proportionality (as conceptualized in the succeeding sections) formulate the sequence of reasons that actualize rights-based accountability. The fourth idea is that the application of these doctrines to the contours of a particular charter of rights enables the justified resolution of constitutional complaints. Accordingly, from the standpoint of anti-Archimedean justification, constitutional judgment does not replicate some determinate moral conclusion about what is all-things-considered justified. Rather, constitutional judgment must resolve constitutional complaints in accordance with the moral considerations apposite to rights-based constitutional order.
In what follows, my aim is to set out the method of justification apposite to the resolution of constitutional complaints. Because this method focuses on the connection of each constitutional norm to every other rather than constitutional norms taken in isolation, I call this method the system of rights. The sections that follow expound the structure of the system of rights by setting out the justificatory constraints that it imposes on judgments that engage the scope and strength of constitutional rights.
In Section 3, I show how the system of rights formulates an alternative to the way in which the leading models conceive of the scope of rights. I argue that the scope of rights neither encompasses all human conduct (as relativism claims) nor is confined to specific conclusions that issue from open-ended moral reasoning (as absolutism maintains). Rather, the scope of each right is worked out through purposive interpretation, a doctrine that seeks to understand a charter of rights as a differentiated unity in which each provision draws out some distinctive aspect of the whole and the whole expresses the commonality of each provision. I expound the components that comprise this doctrine, the sequenced structure that obtains among them, and the justificatory constraints that this approach generates. The resulting framework rejects (1) the absolutist idea that one determines the scope of rights by balancing “all of the reasons bearing upon the justifiability of a given action,”Footnote 116 (2) the relativist idea that all human conduct receives prima facie constitutional protection,Footnote 117 and (3) an interpretive conclusion that absolutism and relativism share: interpretive strain is inevitable because one cannot make sense of both the generality and variety of rights.
Section 4 explores the strength of rights. Setting aside both the absolutist claim that the strength of a right is always decisive, and the relativist claim that the strength of a right is always defeasible, I argue that one cannot identify the strength of a constitutional right in abstraction from the kind of consideration that opposes it. When confronted by considerations that do not sound in a constitutional register – such as majoritarian preference, administrative expediency, non-prohibitive cost, and the imposition of private moral or religious views – each member of the system of rights possesses decisive strength. However, where the constitution does not establish a hierarchy of rights, members of the system of rights do not possess decisive strength against one another. Instead, conflicts between members of the system of rights must be resolved in a manner that respects the equal claim of each right to fulfillment. I argue that this idea imposes a set of limits on (1) the ends for which rights may be restricted, (2) the means through which rights may be restricted, and (3) the extent to which rights may be restricted. These limits on limits determine the strength of rights and form the basis for each of the sequenced stages that comprise the doctrine of proportionality. Finally, I show that the conception of proportionality that operates within the system of rights offers significantly stronger rights-protection than the relativist conception.
Table 5 formulates the way in which the system of rights departs from each of the leading models, conceives of the structure of the scope and strength of rights, and identifies the constitutional doctrines that expound these structures.
Table 5 The system of rights
| Departure | Structure | Doctrine | |
|---|---|---|---|
| Scope | In the absence of an explicit textual directive, the scope of a constitutional right is neither boundless (as under the relativist model) nor confined to highly specific claims (as under the absolutist model). | The scope of each right reflects its distinctive purpose within the overarching system of rights. In this way, the system of rights seeks to make sense of both the generality and variety of rights. | The doctrine of purposive interpretation (as formulated in Section 3) provides a systematic elaboration of this structure. |
| Strength | In the absence of an explicit textual directive, the strength of a constitutional right is neither defeasible (as under the relativist model) nor indefeasible (as under the absolutist model). | Constitutional rights possess indefeasible strength with respect to sub-constitutional considerations and defeasible strength with respect to every equal member of the system of rights. In this way, the system of rights seeks to make sense of the supremacy of rights and their subjection to limitation clauses. | The doctrine of proportionality (as formulated in Section 4) provides a systematic elaboration of this structure. |
Ultimately, the test of these doctrines is not whether they conform to some external moral goal, but whether they escape the impasse of constitutional rights. Accordingly, we must ask: Do these doctrines abandon the rule of law, or do they explain how constitutional law itself constrains judgments concerning the scope and strength of rights? Do these doctrines perpetuate plenary power, or do they contribute to a form of legal ordering in which public authorities are rendered accountable to the inherent rights of each legal subject? Do these doctrines distort and discard familiar constitutional provisions establishing rights and limits, or do they explain how such provisions can operate coherently?
3 The Scope of Rights
The chasm separating the abstract terms in which constitutional rights are formulated and the concrete circumstances to which they apply raises an enduring interpretive challenge: Can judgments about the scope of broadly formulated constitutional rights (guaranteeing freedom of religion, expression, liberty, and so on) be justified and, if so, what form would such a justification take?
Within the world of constitutional theory, responses to this question swing between two extremes, the absolutist claim that genuine rights are confined to specific moral conclusions and the relativist claim that prima facie rights envelop all human conduct. As Alexy observes:
There are two main constructions of constitutional rights: one is narrow and strict, a second is broad and comprehensive … These two constructions are nowhere realized in pure form, but they represent different tendencies, and the question of which of them is better is a central question of the interpretation of every constitution that provides for constitutional review.Footnote 118
In what follows, I make no attempt to establish which of these constructions is better. As I argued in Section 1, each construction aspires to the same supposed virtue and occasions the same vices. The virtue consists in transforming a charter of constitutional rights into an instrument for the pursuit of any external moral goal. The vices consist in the disavowal of the rule of law, the subjection of rights-bearers to plenary power, and the disregard of constitutional text. Because theories that possess the same virtue and vices do not stand in a relationship of superior and inferior, my aim in this section is not to elevate one model over the other but to formulate an alternative to both. I will refer to this alternative as purposive interpretation.Footnote 119
Purposive interpretation integrates two ideas that the leading models sever. The first idea is affirmed by absolutism but denied by relativism: if constitutional rights are to have priority over other claims, the scope of rights cannot encompass all conceivable claims. The second is affirmed by relativism but denied by absolutism: open-ended moral reflection does not determine the scope of rights. The aim of this section, then, is to explain how purposive interpretation distinguishes between what falls within and what falls beyond the scope of rights without appealing to some external moral referent.
I begin by showing that the relativist and absolutist methods for determining the scope of rights are not exhaustive of possible methods, as constitutional scholars often suppose. I then formulate the components of purposive interpretation, the sequenced structure that obtains among them, and the way in which this sequence constrains judgments about the scope of rights. I conclude by explaining how purposive interpretation avoids the vices of the leading models.
3.1 Beyond Isolationism
Relativism and absolutism offer opposing strategies for determining the scope of constitutional rights. These strategies do not exhaust the possible interpretive methods.
Relativism treats every reason for or against constitutional protection as relevant to a constitutional claim. Prima facie rights represent reasons that support constitutional protection in a given context. These reasons inevitably conflict with others that oppose constitutional protection in that context. Relativism seeks to resolve these conflicts by appealing to some external moral goal to determine (1) the strength of the reasons that support constitutional protection, (2) the strength of the reasons that oppose constitutional protection, and (3) which set of reasons possesses greater strength in the relevant context. Because the integrity of this exercise would be compromised if reasons for constitutional protection were excluded from the analysis, relativism demands “a wide conception of scope.”Footnote 120 This conception is informed by two inclusive rules:
(1) Everything which has at least one characteristic, which – viewed in isolation – would suffice to bring the matter within the scope of the relevant right, does so, regardless of what other characteristics it has …
(2) Within the semantic leeway of the concepts defining the scope, wide interpretations are to be adopted.Footnote 121
The application of these rules to the right to liberty (or autonomy) culminates in a right to do whatever one pleases. Because the right to liberty encompasses all conceivable forms of human conduct, relativism regards the efforts of courts to delineate the scope of rights as a perfunctory exercise culminating in a preordained conclusion: every legislative act or omission that impacts conduct infringes the prima facie right to liberty (and possibly other rights as well). Accordingly, relativism draws attention away from the question of what the scope of a right demands towards the question of what the strength of a right withstands.
Absolutists are critical of the relativist strategy because it elevates every claim for and against constitutional protection to the rank of supreme law. This indiscriminate elevation denies constitutional rights any priority over opposing claims. To preserve the priority of rights, absolutists formulate a methodology to determine what falls within and what falls beyond the boundary of a right. Further, absolutists claim that this methodology is the sole alternative to the relativist strategy. To defend the priority of rights one must endorse absolutism.
Consider the following constitutional provision: “Everyone has the right to expressive freedom.” When confronted by such a capacious provision, absolutists observe that its sweeping terms can be filled with “hundreds if not thousands of possible legal meanings.”Footnote 122 Since the provision is too amorphous to specify a particular legal meaning, absolutists insist that “the only way” to introduce determinacy is to appeal to some external source of meaning.Footnote 123 Finnis captures this idea as follows:
How is this process of specification and demarcation to be accomplished? … There is, I think, no alternative but to hold in one’s mind’s eye some pattern, or range of patterns, of human character, conduct, and interaction in community, and then to choose such specification of rights as tends to favour that pattern, or range of patterns. In other words, one needs some conception of human good, of individual flourishing in a form (or range of forms) of communal life that fosters rather than hinders such flourishing.Footnote 124
Under absolutism, one specifies the scope of a broadly formulated constitutional right by looking to some external moral goal to distinguish between expressive activity that must be categorically protected and expressive activity for which restrictions are permissible or obligatory. Thus, for any expressive act – whether artistic expression, scientific research, public criticism, blasphemy, fighting words, violence, hate speech, sedition, obscenity, and so on – legally unbounded moral reflection determines whether it is constitutionally protected or left to the operation of ordinary law.
Purposive interpretation offers an alternative method for determining the scope of constitutional rights. Purposive interpretation departs from relativism by offering resources for distinguishing what falls within and what falls beyond the scope of rights. Purposive interpretation departs from absolutism by denying that “the only way” to specify a broadly formulated right involves appealing to an external moral referent.Footnote 125 The former departure preserves the priority of rights. The latter explains how the scope of rights can be delimited without engaging in legally unconstrained moral reflection.
Absolutism relies on an assumption that we might term isolationism, the idea that interpretation is an effort to grasp the significance of each constitutional provision considered in abstraction from the broader network of constitutional norms in which it is embedded. As we have seen, absolutism (1) focuses on a particular constitutional provision, (2) observes the multitude of possible legal meanings that could be attributed to that provision’s capacious terms, and, finally, (3) claims that because the broad terms of the provision do not privilege a particular legal meaning, recourse to some independent moral goal is unavoidable. In short, open-ended moral reflection supplies the determinacy that individual constitutional provisions lack.
Constitutional lawyers and judges are often dismissive of the isolationist idea that a charter of rights comprises a series of “watertight compartments”Footnote 126 or “insular and discrete” provisions.Footnote 127 Isolationism is problematic because it provides no assurance that the meaning assigned to one constitutional provision will not nullify or duplicate the meaning assigned to another, thereby converting an authoritative provision into a dead letter. For example, in the American context absolutists sometimes interpret the First Amendment guarantee of freedom of speech in a manner that denies legal effect to the Equal Protection Clause,Footnote 128 while progressives sometimes interpret the Equal Protection Clause in a manner that denies legal effect to the First Amendment.Footnote 129 As an interpretive matter, each of these approaches is objectionable for the same reason: constitutional interpretation proceeds from an authoritative legal text and seeks to give effect to the totality of its provisions in the various social realities to which they apply. In contrast, a constitutional amendment creates or revises a legal text by determining which norms shall possess the strength of supreme law. When one constitutional right is interpreted in a manner that denies another effect, the boundary separating constitutional interpretation from constitutional amendment collapses and the authority of every constitutional right is rendered insecure.
Absolutists characterize their model as the sole method for delimiting the scope of rights.Footnote 130 This is not the case. The isolationist assumption that one is to ascertain the scope of each constitutional right in abstraction from every other encounters opposition in the integrationist assumption that a “constitution has an inner unity, and the meaning of any one part is linked to that of other provisions.”Footnote 131 Absolutism is oriented by the isolationist assumption, while purposivism formulates the integrative alternative.
In what follows, I will sketch the structure of purposive interpretation, explain how this structure departs from both absolutism and relativism, and show how this structure offers a way out of the impasse.
3.2 The Justification of Purposive Interpretation
Constitutions formulate two kinds of norms.Footnote 132 The first are constitutive of public authority: they create government by allocating and organizing its three kinds of powers – legislative, executive, and judicial. The second are regulative of public authority: they affirm standards to which the exercise of public authority must conform.
A constitutional right is a norm that is regulative in kind and relational in structure. A constitutional right is regulative insofar as it formulates a standard to which the exercise of public authority must adhere. A constitutional right is relational insofar as it abstracts from monadic considerations, whether pertaining to either the fittingness of a public act or the fate of a particular person. Instead, constitutional rights conceive of the entity that possesses the right and the entity that owes the corresponding duty as situated in a unified relationship in which the violation of the duty wrongs the bearer of the right.
Insofar as constitutional rights are regulative of public authority, the interpretation of constitutional rights involves identifying a standard (or what we might call a purpose) to which the exercise of public authority must conform and then specifying what that standard requires in some concrete setting. Elaborating on this idea, Grimm explains:
[T]he Bundesverfassungsgericht (Federal Constitutional Court) understands constitutional rights as legal expressions of values, and these values guide the determination of the meaning of a legal norm. They point the interpreter to the purpose of a constitutional norm or the function it is to fulfil. This is already a two‐dimensional understanding of a legal norm. However, the purpose ought to be fulfilled in the real world, and this world is constantly changing. The goal of interpretation is to fulfil the purpose of the norm to the utmost extent under changing conditions. This means that the segment of social reality in which a constitutional norm shall take effect … becomes an integral part of interpretation. The consequence is a three-dimensional understanding of constitutional norms: text plus purpose plus context. Analysis of the social reality to which a norm applies is part of the determination of its meaning.Footnote 133
This passage identifies the components of a purposive interpretation: (1) the text of a charter of rights (conceived of as the totality of its semantic meanings), (2) purposes (conceived of as a set of regulative standards that entitle persons to certain public acts and omissions), and (3) context (conceived of as the various social realities in which public authorities are to effectuate the relevant purposes).
Purposive interpretation places these components within a sequenced structure consisting of three ordered stages.Footnote 134
The first concerns the text of a charter of rights. Purposive interpretation maintains that “[t]he language of a constitutional text sets the boundaries of constitutional interpretation.”Footnote 135 In contrast, non-interpretive doctrines treat constitutional text as merely “presumptively binding and limiting.”Footnote 136 This presumption allows constitutional text to be rebutted by “changing public values.”Footnote 137 This allowance is dangerous because it renders a charter of constitutional rights powerless “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.”Footnote 138 A constitution that can be disregarded by majorities provides no protection from them.Footnote 139 Within purposive interpretation, the authority of constitutional text is conclusive, not presumptive.Footnote 140
The idea that the language in which a constitutional right is formulated establishes the parameters for its interpretation can also be contrasted with the relativist idea that the scope of a constitutional right reflects the broadest semantic meaning that the text can bear. Purposive interpretation rejects this idea too. Where multiple semantic meanings are consistent with the text of a constitutional provision, the broadest one need not be adopted.Footnote 141
The second stage concerns the imputation of a regulative standard to a particular provision. Purposive interpretation conceives of constitutional provisions not as a series of isolated elements, but as members of a system of interlocking standards that work together to regulate the relationship between rulers and ruled. As the Supreme Court of Canada articulates this idea: “Our constitutional Charter must be construed as a system” in which “[e]very component contributes to the meaning as a whole, and the whole gives meaning to its parts.”Footnote 142 The idea that a charter of rights is an integrated system constrains the standards that may be imputed to a charter of rights. A general standard attributed to a charter of rights is justified to the extent that it captures what is common to each particular provision. Conversely, a standard attributed to a particular provision is adequate to the extent that it “imbues and informs our understanding of the value structure sought to be protected by the Charter as a whole.”Footnote 143 From the standpoint of purposive interpretation, standards must be justified systematically rather than stipulated piecemeal. The interpretive task, then, is to formulate a coherent system of general and particular standards that together make sense of a constitutional text in whole and part.
This ideal of constitutional coherence imposes a demanding set of interpretive constraints. Because purposive interpretation seeks to identify the distinctive contribution that each provision makes to the whole, the doctrine eschews imputing a purpose to one provision that renders another inert or duplicative: “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.”Footnote 144 And because purposive interpretation strives to understand how the overarching general purpose (or purposes) of a charter of rights informs each particular provision, the doctrine rejects purposes that are contradictory or mutually indifferent.
The challenge of purposively interpreting a charter of rights resembles that of solving a Rubik’s cube. The task is not to move this or that square from one location to another while ignoring how each movement impacts the position of other squares. Rather, the task is to simultaneously situate each square within an overarching pattern. Similarly, the aim of purposive interpretation is not to assign a purpose to a single provision taken in isolation, but to formulate an interlocking set of general and particular purposes that make sense of a constitutional text in whole and part. While the effort to interpret a charter of rights in this way might culminate in rival interpretations, far from posing a threat to the system of rights, this is exactly what it demands: a comprehensive and creative effort to develop increasingly integrated interpretations. It is striking that so much of what passes for constitutional interpretation is indifferent to this aim.
Some may be skeptical of the idea that every charter of rights should be interpreted in accordance with the ideal of constitutional coherence. Constitutions, one often hears, are created by and for persons whose worldviews and aspirations stand in opposition. These conflicts are resolved by “compromises, truces, tacit forbearances, and mutual accommodations.”Footnote 145 Accordingly, there is no guarantee that purposive interpretation – or any other interpretive method – will generate constitutional coherence.
This is true, but it is not an objection to purposive interpretation. This doctrine does not claim that every charter of rights is fully coherent. Nor does it claim that the jurisprudence interpreting a charter of rights in a particular time and place is fully coherent. What purposive interpretation claims is that constitutional interpretation is adequate to the extent that it constructs a system of standards that illuminates a charter of rights in whole and part and, in so doing, enables each member of the system of rights to be given effect on the same terms as every other. Of course, it might turn out that a particular charter of rights ultimately defies the doctrine because any attempt to effectuate one provision nullifies another. If this is the case, constitutional interpretation comes to an end because judgments regarding which constitutional provision shall be given effect and which shall be ignored are non-interpretive. In these circumstances, the rule of law demands a constitutional amendment to restore the possibility of interpretation. The critical point is that one cannot determine whether (and the extent to which) an actual charter of rights defies interpretation without engaging in a systematic effort to understand it as a coherent unity of part and whole. This is purposive interpretation’s project.
The third and final stage of the purposive sequence explores whether, in a particular context, the public authority has fulfilled the purpose of a particular provision. Where the acts and omissions of public authorities fulfill the right’s purpose, the right is secure. Alternately, where the acts and omissions of public authorities fail to fulfill the right’s purpose, the right is breached.
Purposive interpretation is a sequential exercise. The second stage presupposes the first because the interpretive task is to specify, not subvert, abstract constitutional language. Accordingly, the interpreter cannot attribute a purpose to the text that its wording cannot bear.Footnote 146 The third stage presupposes the second because the interpreter cannot determine whether public acts or omissions in a particular context conform to the relevant provision so long as its internal purpose remains unspecified. Thus, consideration of whether a constitutional provision is fulfilled in a given context presupposes a determination of that provision’s purpose and the determination of that purpose presupposes fidelity to the semantic meaning of the constitutional text. Figure 1 sketches the sequential structure of purposive interpretation.
Figure 1 The purposive sequence
While purposive interpretation is not an algorithm, it does constrain the standards that may be attributed to constitutional rights. Consider s. 2(a) of the Canadian Charter of Rights and Freedoms: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion.”Footnote 147 In determining the meaning of the term ‘conscience,’ two approaches have been advanced. The first treats conscience and religion as synonymous; whatever standard applies to religion, applies to conscience as well.Footnote 148 On this view, s. 2(a) would protect the right of Quakers not to be conscripted into military service, but would deny parallel protection to those whose pacificism rests on secular grounds.
From the standpoint of the system of rights, such an interpretation is objectionable because “‘conscience’ and ‘religion’ should not be treated as tautologous if capable of independent, although related, meaning.”Footnote 149 A more promising line of interpretation would strive to explain the distinctive contributions that freedom of conscience and religion each make to the constitution as a whole and the way in which the whole unifies these distinctive protections. In a seminal Canadian case, Chief Justice Dickson interpreted this provision in accordance with these strictures. With respect to the purposes of the Charter as a whole, Dickson explained that it represents a political tradition that affirms the right of dignified persons to make “free and informed decisions.”Footnote 150 Moving from the general towards the more particular, Dickson explained that freedom of conscience draws out an aspect of this broader freedom by enabling each person to adopt, refine, revise, and act in accordance with their own self-chosen worldviews, so long as they respect the “parallel rights” of others “to hold and manifest beliefs and opinions of their own.”Footnote 151 Having set out the relationship between the Charter as a whole and freedom of conscience, Dickson turned to formulate the relationship between conscience and religion. Freedom of religion, he explains, is “paradigmatic” of freedom of conscience insofar as it prevents government from coercing “individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.”Footnote 152 On this interpretation, freedom of conscience specifies an aspect of human dignity, and freedom of religion specifies an aspect of freedom of conscience. Accordingly, secular and sacred worldviews are to be afforded equal protection under the Charter. Public authorities “cannot incorporate s. 2(a) of the Charter in a piecemeal manner” by protecting sacred but not secular worldviews.Footnote 153
There is a long-standing objection to the claim that constitutional protection should extend to non-religious worldviews: “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”Footnote 154 Freedom of conscience, on this view, is problematic because it enables any person to raise a constitutional complaint against whatever laws she happens to deem objectionable. The system of rights responds to this objection as follows. Under purposive interpretation, the scope of a constitutional right is determined solely by reference to its own distinctive purpose. This does not mean that other purposes – including the maintenance of the rule of law and the protection of other members of the system of rights – are irrelevant. Rather, their relevance is worked out by reference to a sequence of considerations apposite to the strength of rights. The next section elucidates these considerations.
By conceiving of each constitutional right as a standard situated within a system of rights, purposive interpretation avoids the forms of interpretive strain that absolutism and relativism occasion. As we have seen, absolutism generates interpretive strain by converting a charter of majestic generalities into a series of pin pricks. No matter how broadly constitutional rights are formulated, absolutist rights are confined to highly specific moral claims. In contrast, purposive interpretation affirms the generality of rights by conceiving of them as standards to which public acts and omissions must conform. In turn, relativism generates interpretive strain by insisting that each right is to be afforded its broadest semantic meaning and then observing that liberty renders more specific liberties redundant. In contrast, purposive interpretation proceeds from the presumption that each constitutional provision makes a distinctive contribution to the meaning of the whole. In this way, purposive interpretation accommodates both the generality and variety of rights.
Purposive interpretation rejects a further idea to which absolutism is implicitly committed: the scope of a right is the output of a balancing exercise. Section 1 observed that absolutism designates a genuine right “only after the final interaction of all of the reasons bearing upon the justifiability of a given action.”Footnote 155 So conceived, absolute rights presuppose balancing but are not subject to it. They presuppose balancing because wherever the reasons concerning the justifiability of a given action stand in opposition, there is no alternative to assessing the relative weight or force of the competing reasons, and that is what balancing is. Absolute rights are not subject to balancing because absolutism affixes the label right only to highly specific norms that have survived every possible conflict with every opposing reason.
Unlike absolutism, purposive interpretation determines the scope of rights without engaging in balancing. Balancing is a method of resolving conflicts between competing principles;Footnote 156 purposive interpretation does not involve competing principles. Rather, purposive interpretation concerns the relationship between a constitutional text, its purposes, and the various contexts in which public authorities must effectuate those purposes. Text and purpose do not compete. Instead, text constrains the purposes that may be attributed to a provision. Nor do purpose and context compete. Context must conform to purpose. From the standpoint of purposive interpretation, the idea that there is some context to which the purpose of rights must conform is inadmissible because it would render rights powerless to protect persons from various social realities, including historical traditions, societal consensus, and policy preferences. The idea that constitutional standards apply to but are not determined by social reality is built into the sequenced structure of purposive interpretation: when the purpose of a provision is determined, the social reality to which it applies has not yet been considered; when the social reality is considered, the purpose has already been determined. Because determinations about whether (and the extent to which) context conforms to purpose do not involve competing principles, purposive interpretation formulates the scope of rights without balancing.
Purposive interpretation also resists the relativist idea that, absent explicit textual direction, the scope of the constitutional right to liberty encompasses all human conduct. The relativist theorist Kai Möller draws out a striking ramification of this idea: “the murderer, as a moral agent, is entitled to decide for himself whether murdering promotes or ruins the value of his life.”Footnote 157 Purposive interpretation departs from relativism by delineating the scope of a right by reference to its distinctive purpose within the overarching system of rights rather than the broadest semantic meaning that the provision can bear. Whatever the purpose of liberty is within a particular charter of rights, the protections that the right affords must be equally available to everyone to whom the right extends. Murder fails this test because it involves the unilateral extinguishment of another’s capacity for liberty. This point affirms an earlier one. Where a charter of rights recognizes that each individual has the right to freedom of conscience, the scope of the right does not extend to conscientious conduct that denies the “parallel rights” of others “to hold and manifest beliefs and opinions of their own.”Footnote 158 The protections that a right affords cannot contravene its animating purpose.Footnote 159
The system of rights can be further distinguished from absolutism and relativism by considering how each model approaches the possibility and nature of conflicts between constitutional norms.
Under absolutism, when rights are appropriately specified, no conflicts can arise between them. Critics of absolutism have long observed that this position relies on a sleight of hand.Footnote 160 Far from avoiding conflicts, absolutists simply refrain from applying the label right to any claim unless all possible conflicts with competing norms have been resolved in its favour.
Within the relativist camp, conflicts might be conceptual or contextual. Conceptual conflicts arise when the fulfillment of one right necessarily entails the nullification of another, whereas contextual conflicts are contingent on particular circumstances. Norms that stand in conceptual conflict always collide; norms that stand in contextual conflict sometimes do. By affirming a right to do as one pleases, relativism generates a multitude of conceptual conflicts: the right to life collides with the right to murder, the right to security of the person collides with the right to torture, the right to equality collides with the right to discriminate, and so on. However, not all conflicts are conceptual. In some circumstances expressive freedom poses no threat to the fulfillment of other members of the system of rights. In other circumstances, expressive freedom conflicts with others’ rights to privacy, reputation, or free and fair elections. Absolutism denies the possibility of contextual conflicts because each right occupies its own discrete silo; relativism accepts the possibility of conceptual conflicts because it posits the existence of a right to do as one pleases that is inconsistent with more particular rights.
Purposive interpretation departs from absolutism by accepting the possibility of contextual conflicts and from relativism by precluding conceptual conflicts. Contextual conflicts are possible because the scope of each right is determined in light of its own distinctive purpose. It is therefore possible that what falls within the scope of expressive freedom may diminish what falls within the scope of the right to privacy, and vice versa. The next section explores how the system of rights identifies and resolves contextual conflicts. Purposive interpretation does not countenance conceptual conflicts because, absent explicit textual direction, purposive interpretation proceeds on the assumption that each constitutional provision is to be given effect, and provisions that stand in a relation of conceptual conflict cannot be jointly effectuated. The key to giving each constitutional provision effect is to situate each provision within a system of interlocking general and particular standards. Because members of such a system do not stand in relations of conceptual conflict, all conflicts within the system of rights are contextual. The fulfilment of one member of the system of rights does not entail the negation of another.
3.3 Conclusion
Purposive interpretation integrates a series of ideas about the scope of constitutional rights. First, the basic task of a theory of constitutional interpretation is not to stipulate which constitutional provisions are to be given effect, but to offer a systematic explanation of how the totality of constitutional provisions can be jointly fulfilled. Accordingly, when imputing purposes to rights, purposive interpretation eschews purposes that render particular provisions contradictory, mutually indifferent, duplicative, or inert and instead seeks to formulate an interlocking set of general and particular purposes that make sense of a charter of rights in whole and part. Second, a charter of rights is a system of standards that regulate the relationship between public authorities and the free persons subject to their governance. Because different constellations of standards may inform different charters of rights, constitutional protections may vary from one jurisdiction to the next. Third, the internal standard of each right must be fulfilled by public authorities in the context of a constantly changing world. So conceived, purposive interpretation identifies the standards that animate a charter of rights and requires public power to live up to them.
Purposive interpretation offers a method of determining the scope of constitutional rights that maintains the rule of law, explains how rights regulate public authority, and avoids the interpretive strain occasioned by opposing models.
Section 1 observed that absolutism creates a crisis for the rule of law by empowering legally unconstrained moral judgment to determine the scope of rights. Purposive interpretation precludes this crisis. The doctrine recognizes the authority of each constitutional right, formulates a network of standards that enable each right to be given effect, and then assesses whether public authorities have acted in conformity with these standards in some concrete setting. In this way, purposive interpretation explains how constitutional law itself constrains judgments regarding the scope of rights.
Further, from the standpoint of purposive interpretation, constitutional rights are standards that regulate the exercise of public authority. The same cannot be said of absolute and relative rights. Under the absolutist model, what regulates public authority is not rights, but the independent moral considerations that determine their scope. The relativist model takes a different route to the same conclusion. Relative rights are incapable of regulating public authority because if every authoritative act or omission breaches a prima facie right, then such rights shed no light on the question of how public authority may be exercised. That question is resolved by providing judges with a legally unconstrained power to determine the strength of rights. In the case of either model, something other than constitutional rights regulates public authority.
Finally, purposive interpretation does not generate interpretive strain by (joining absolutism in) denying the generality of rights or by (joining relativism in) claiming that wherever constitutions entrench a right to liberty, the entrenchment of other rights are in vain. Purposive interpretation recognizes the generality of rights by conceiving of them as standards that regulate the exercise of public authority rather than specific conclusions. Purposive interpretation maintains the variety of rights by presuming that each makes a distinctive contribution to the system in which it stands. From the standpoint of purposive interpretation, a charter of rights is exactly what it purports to be, a set of supreme law standards that supplant the subjection of some or all to plenary power with the protection of each person subject to law’s authority.
4 The Strength of Rights
In 1946, mere months after narrowly escaping deportation by the Nazi regime, the German public lawyer Walter Jellinek posed a fundamental question about the relationship between the scope and strength of constitutional rights: “What use is it to say that the first sentence of an article of fundamental rights solemnly guarantees a right, if a second sentence permits restrictions by law?”Footnote 161 The leading contemporary theories of constitutional rights offer opposing answers to this question.
From the standpoint of the absolutist model, the scope of a constitutional right is determined by moral reflection. When the scope of a right is morally justified, it follows that any restriction of that right must be morally unjustified. Accordingly, constitutional rights possess the same peremptory status as the categorical moral claims that they echo. The peremptory strength of rights dictates how absolutists conceive of both limitation clauses and the doctrine of proportionality. Because genuine rights preclude restriction, absolutists stipulate that limitation clauses indicate that it is judgments about the scope (rather than the strength) of rights that must be justified in reference to what morality independently demands. In turn, absolutists brand proportionality – the doctrine that courts around the world employ to determine whether the breach of a constitutional right is justified – as a dangerous confusion that seeks to justify the morally unjustifiable.
Relativism reverses these contentions. With respect to the scope of rights, relativism holds that persons have a prima facie right to engage in whatever conduct that one pleases, whether virtuous, vacuous, or even vicious. The scope of a prima facie right is completely indifferent to moral considerations. But relativists insist that the same cannot be said of the strength of such rights. Prima facie rights may be justifiably restricted whenever the moral reasons that oppose the right possess greater force than the moral reasons that support it. Accordingly, rights possess no priority over the moral reasons that oppose them. Turning from the structure of rights to the purpose of limitation clauses, the relativist model conceives of limitation clauses as the mechanism through which morality asserts itself over the indiscriminate litany of prima facie rights. As for the doctrine of proportionality, relativists conceive of its final balancing substage as providing a structure for the rational assessment of the moral strength of the reasons supporting and opposing constitutional protection in a given context. When unbounded moral reflection determines the strength that prima facie rights possess, morality inevitably prevails.
The prior section focussed on the scope of rights and integrated two ideas that the leading models sever. The first (endorsed by absolutism and denied by relativism) is that, absent explicit textual direction, the scope of rights does not encompass all conceivable forms of human conduct. The second (endorsed by relativism and denied by absolutism) is that the scope of rights is not determined by unconstrained moral reflection. The present section focuses on the strength of rights and, once again, seeks to integrate two ideas that absolutism and relativism separate. The first (endorsed by relativism and denied by absolutism) is that the restriction of a constitutional right may be justified. The second (endorsed by absolutism and denied by relativism) is that the strength of a right is not determined by unconstrained moral reflection. My aim in this section is to explicate the framework in which these commitments coexist.
I proceed in two parts. The first confronts a centuries old skeptical challenge, which alleges that constitutional rights and limitation clauses stand in a relation of conceptual conflict. Constitutional rights, the objection goes, constrain public authorities, while limitation clauses permit whatever rights prohibit. Insofar as rights deny and limitations affirm plenary power, they cannot be jointly given effect. This objection fails. Under a rights-based constitution, the purpose of a limitation clause is not to obliterate rights and thereby resurrect plenary power, but to limit the limits that may be imposed on rights. In the second part, I expound the connection between this purpose and the doctrine of proportionality. Within the system of rights, each stage of the proportionality analysis limits the limits that public authorities may impose on rights. Each of these limits on limits reflects a moral idea distinctive to a regime of constitutional rights: constitutional rights are supreme law standards that possess an equal claim to fulfillment. I explore the doctrinal ramifications of this idea and, in so doing, present a conception of proportionality that departs from the relativist account by preserving the priority of rights and precluding their nullification. I conclude by setting out how this account of the strength of rights escapes the impasse explored in Section 1.
4.1 What’s the Point of a Limitation Clause?
Critics and defenders of charters of rights are often puzzled by the fact that these documents typically combine both constitutional rights and limitation clauses that authorize their restriction. The puzzle can be explicated in three steps. The first observes that the purpose of a constitutional right is to constrain legislative authorities. The second claims that the purpose of a limitation clause is to empower legislative authorities to remove whatever constraints rights impose. The third concludes that because rights and limits seek to give effect to antagonistic purposes, they cannot be jointly fulfilled. When a right is taken seriously, it is not subject to a limitation clause; and when a limitation clause is taken seriously, legislative authorities are not burdened by rights. Rights and limits, on this view, stand in a relation of conceptual conflict (§3.2), in which the fulfillment of one nullifies the other. Accordingly, any constitutional text that subjects rights to a limitation clause is fundamentally non-interpretable. After all, interpretation seeks to give effect to the totality of constitutional norms – not to stipulate that certain norms shall be given effect and others ignored.
For centuries, critics and defenders of constitutional rights have appealed to this puzzle to demonstrate that a charter of rights that divides itself between rights and limits cannot stand, and must become all one thing, or all the other. This section presents this puzzle through three of its leading exponents, Jeremy Bentham, Karl Marx, and Ronald Dworkin. My claim is that the puzzle is generated by the idea that the purpose of a limitation clause is to empower legislative authorities to eviscerate rights. While this idea may resonate with (and indicate the incoherence of) certain constitutional texts, it does not express a general truth about limitation clauses. Where the purpose of a limitation clause is to limit the limits to which rights may be subject, constitutional provisions that guarantee rights and that subject rights to limitations may each contribute to a common and coherent constitutional project.
In his excoriating essay on the Declaration of the Rights of Man and the Citizen, Bentham insisted that limitation clauses render rights “nugatory.”Footnote 162 Consider Bentham’s gloss on Article 7, which compactly formulates both a right and a limitation: “No one can be accused, arrested or detained but in the cases determined by the law, and according to the forms prescribed by the law.”Footnote 163 This provision, Bentham thought, cannibalizes itself because the limitation that follows the but consumes the right that precedes it. Thus, Bentham held that rights and limitations are contradictory commitments: the point of rights is to constrain legislative power; the point of a limitation clause is to empower legislative bodies to remove the constraints that rights impose. Accordingly, wherever rights are subject to a limitation clause, legislative power remains plenary, and rights-bearers find themselves “at the mercy and good pleasure of the law.”Footnote 164
Bentham’s claim that rights and limits stand in opposition is rooted in a hierarchical understanding of the relationship between rights and legislation. If rights stand at the normative apex of law’s hierarchy, then rights succeed in shackling legislative power. However, where a limitation clause subordinates rights to legislation, rights no longer constrain: “Suppose [a Declaration] to say – no man’s liberty shall be abridged, but in such points as it shall be abridged in, by the law. This, we see, is saying nothing: it leaves the law just as free and unfettered as it found it.”Footnote 165 The reason why rights and limitation clauses cannot be jointly effectuated is that rights cannot be both a “barrier against government” and “a barrier which government is expressly called upon to set up where it pleases.”Footnote 166 Because rights either constrain legislative authorities or are subject to whatever constraints those authorities might impose, Bentham maintains that declarations of rights exhibit confusion by looking between these “two rocks” for a middle ground that does not exist.Footnote 167
Marx follows Bentham in characterizing the limitation clauses he encountered as constitutional nonsense. In his essay, “The Constitution of the French Republic Adopted November 4, 1848,” Marx explains that the fundamental problem raised by the limitation clauses was not that they invite legislative bodies to violate rights, but that they made the violation of rights impossible:
The reader will at once see that from beginning to end [that the Constitution] is a mass of fine words, hiding a most treacherous design. From its very wording, it is rendered impossible to violate it, for every one of its provisions contains its own antithesis – utterly nullifies itself. For instance: – ‘the vote is direct and universal’, – ‘excepting those cases which the law shall determine’. Therefore it cannot be said that the law of May 31, 1850 (disfranchising two-thirds of the people) at all violates the Constitution.Footnote 168
Marx describes the structure of the Constitution of the French Republic as following a two-step pattern. The first formulates sweeping constitutional rights that constrain legislative authorities. The second formulates equally broad limitations empowering those authorities to engage in the very acts and omissions that rights prohibit. The result is that rights provide the illusion of protection, while maintaining the plenary power of legislative institutions. Thus, when the Constitution proclaims “The right of tuition is free. The freedom of tuition shall be enjoyed on the conditions fixed by law,” Marx writes that the “old joke is repeated” because the conditions fixed by law “take away the freedom altogether.”Footnote 169 And when freedom is taken away, one cannot say that the right was violated because the limitation permits the very conduct that the right prohibits. Rights that are attended by a limitation clause “carry their own contradiction with them.”Footnote 170 Because rights that protect nothing cannot be violated, Marx observes that legislation soon converted the French Republic into a “shameless tyranny” without breaching anyone’s rights.Footnote 171
Dworkin rejected Bentham’s and Marx’s skepticism about constitutional rights, but he shared their understanding of limitation clauses. While much of Dworkin’s immense corpus is devoted to exploring how constitutional rights impose principled constraints on public power, Dworkin said almost nothing about limitation clauses. Even when he observed that “[t]he individual rights that our society acknowledges often conflict,”Footnote 172 he refrained from addressing the significance of limitation clauses. Three decades later, in the context of a critical discussion of the detention policies employed by the Bush administration in the war on terror, Dworkin took issue with those who claimed that “no rights can be absolute, there are always circumstances in which government is justified in compromising or ignoring them.”Footnote 173 Referring to limitation clauses, Dworkin acknowledged that the “great charters of human rights” burden “many of the rights that they list with important qualifications.”Footnote 174 He then characterized limitation clauses, including those that appear in the European Convention on Human Rights as nothing more than “political compromises” formed to elicit the assent of those who are hesitant to subordinate public authority to the discipline of rights.Footnote 175 In Dworkin’s eyes, limitation clauses are objectionable because they make the principles that animate a charter of rights yield to pragmatic considerations. Accordingly, limitation clauses have no role to play in a regime where principle governs. It is striking that in characterizing limitation clauses as instruments for repudiating rights, Dworkin treated the limitation clauses of contemporary constitutions and international conventions as no different from the ones that Bentham and Marx encountered. This equivalence is mistaken.
In short, for Bentham, Marx, and Dworkin (and contemporary absolutists who invoke their objection), constitutional rights and limitation clauses are not parts of a common project. Rights seek to constrain legislative authorities; limitation clauses invite such authorities to dismantle whatever constraints rights impose. Because limitation clauses permit whatever rights prohibit, each philosopher concludes that charters of rights that couple rights with limitation clauses accomplish nothing.
In philosophic circles, it is commonplace to suppose that the purpose of a limitation clause is to perpetuate plenary power by converting prohibitions concerning public acts and omissions into permissions. However, lawyers – including leading figures in the development of constitutional and international human rights law – frequently claim that limitation clauses have an integral role to play in the project of rights-protection. Their claims raise a fundamental question: Did these lawyers suffer from a confusion that consumed the very rights that they championed, or did they understand something about limitation clauses that generations of philosophers had overlooked?
In an essay entitled “Permissible Limitations on Rights,” the influential international lawyer Alexandre Charles Kiss issued a striking statement about the purpose of the limitation clauses that appear in the International Covenant on Civil and Political Rights: “One should always keep in mind that the ultimate objective of the limitation clauses is not to increase the power of a state or government but to ensure the effective enforcement of the rights and freedoms of its inhabitants.”Footnote 176 This statement extends in two directions. First, it denies that all limitation clauses empower public authorities to “swallow or vitiate” rights.Footnote 177 Such a purpose would render the Covenant an empty exercise, extending rights with one hand, retracting rights with the other, and ultimately preserving the subjection of persons to plenary power. Second, Kiss’s statement suggests that limitation clauses play an essential role in a regime of rights. Kiss’s statement is not an aberration. It is commonplace for jurists to refer to limitation clauses as pivotal to the fulfillment of rights.Footnote 178 For those who conceive of limitation clauses as perpetuating plenary power, these statements are paradoxical. How could a constitutional provision that authorizes the restriction of constitutional rights contribute to their fulfillment?
Perhaps the clearest answer to this question comes from John P. Humphrey, the international lawyer who authored the influential first draft of the Universal Declaration of Human Rights. In a phrase that is as compact as it is significant, Humphrey explained that the purpose of that document’s limitation clause “was to put some real limits on limitations of the exercise of freedom.”Footnote 179 On this view, a limitation clause plays a dual role. On the one hand, a limitation clause “permits the imposition of limitations on the exercise of rights.”Footnote 180 On the other hand, a limitation clause “puts limits on these limitations.”Footnote 181 Taking these ideas together, the point of a limitation clause is not to make rights vanish into thin air, but to “protect rights by defining the circumstances and conditions under which they can be limited.”Footnote 182
Where a limitation clause limits the limits to which rights may be subject, it is not the case that rights are rendered (1) nugatory (as Bentham claimed), (2) incapable of violation (as Marx maintained), or (3) subordinate to pragmatic considerations (as Dworkin asserted).
Bentham’s two rocks argument states that rights and legislation that seeks their restriction stand in one of two relations: either legislation restricts rights or rights restrict legislation. Bentham understood limitation clauses as restricting rights, thereby rendering rights nugatory and legislative authority plenary. But if it were possible to design limitation clauses to impose limits on the limits to which rights may be subject, then a middle ground emerges between Bentham’s two rocks consisting of the conditions that distinguish permissible from impermissible limitations. Where a limitation clause establishes such conditions, it is neither the case that legislation always vanquishes rights or that rights always vanquish legislation. When legislation conflicts with rights, whether rights yield to legislation or legislation yields to rights depends upon whether the legislation adheres to the relevant limits on limits. Legislation that deviates from the limits on limits violates supreme law and is therefore unlawful. In contrast, legislation that conforms to the relevant limits on limits lawfully restricts the right. While Bentham directed his two rocks objection towards all declarations of rights, he failed to anticipate the possibility of limitation clauses that distinguish between permissible and impermissible limitations of rights. In constitutional jurisdictions around the world, that possibility is now actual.
Similarly, the presence of a limitation clause does not indicate that rights are incapable of violation. When a limitation clause establishes conditions that distinguish between permissible and impermissible constraints on rights, rights continue to constrain wherever those conditions remain unsatisfied. Thus, Marx’s claim that limitation clauses leave rights incapable of violation does not express a general truth about limitation clauses. Constitutional rights that are subject to a limitation clause lack absolute strength, but it does not follow that they are incapable of violation.
Finally, if the “main function of limitation clauses is … to set up criteria by which to limit the scope of permissible limitations,”Footnote 183 then Dworkin’s claim that limitation clauses subordinate principle to pragmatism comes under strain. When a limitation clause limits the limits to which rights may be subject, those restrictions may embody principled considerations. Although Dworkin characterized limitation clauses as unprincipled, his corpus is strewn with passages indicating that when certain limits on limits are respected, rights remain trumps.Footnote 184 For example, Dworkin recognized constraints on the ends for which rights may be restricted. He insisted that rights may not be limited to advance “ordinary routine goals of political administration,” but may be limited to advance “competing rights” and goals of “special urgency.”Footnote 185 Further, Dworkin imposed constraints on the means through which rights may be restricted by insisting that limits actually advance the opposing endFootnote 186 and that they do so through the least restrictive means.Footnote 187 With respect to the extent to which a right may be limited, Dworkin maintained that a right cannot be grievously restricted in order to marginally advance the competing right or objective.Footnote 188 Indeed, Dworkin even indicated that “government should bear the onus” of justifying limitations on rights.Footnote 189 Dworkin’s characterization of limitation clauses as intrinsically unprincipled is at variance with his recognition of principles that both restrict rights and respect their status as trumps. As I will explain in Section 4.2, the doctrine of proportionality integrates the various considerations that Dworkin affirms into a sequenced doctrine that enables principled judgments regarding the strength of rights.
If the point of a limitation clause is to eviscerate the constraints that rights impose on government, then rights and limits cannot be jointly given effect. But if some limitation clauses impose limits on the kinds of limits to which rights may be subject, then it is not the case that rights and limits stand in a relation in which the satisfaction of one entails the negation of the other. Limits on limits may be designed and interpreted to preserve the priority of rights over other kinds of considerations and, when claims of right stand in conflict, protect the scope of each right to the greatest possible extent. So conceived, limitation clauses are not “entry points for selling out the substance of human rights,” but instead “play a critical role in defending the status and the scope of those rights.”Footnote 190
In a rights-protecting constitutional regime, the purpose of a limitation clause is to limit the limits to which rights may be subject, not to preserve plenary power. This claim raises a difficult question: what limits on limits on rights are appropriate?
4.2 The Justification of Proportionality
In courtrooms around the world, judges perceive limitation clauses through the prism of proportionality. The doctrine consists in a set of limits on the limits to which rights may be subject. While these limits on limits shift subtly between constitutional jurisdictions, one prominent version of the doctrine holds that when government seeks to uphold legislation that limits a constitutional right, government must demonstrate that the limitation pursues an appropriate objective; that the limitation employs means that are rationally connected to this objective’s fulfillment and minimally impairing of the right; and, finally, that the extent to which the objective is furthered justifies the extent of the right’s restriction. When government fails to satisfy any of these conditions, the breach of the right is unjustified.
Before we ask whether the doctrine of proportionality can justify the limitation of a constitutional right in a given context, we must confront a more basic question: What is the connection between a limitation clause and the doctrine of proportionality? More specifically, why should a limitation clause be interpreted in terms of the specific limits on limits that the doctrine of proportionality formulates?
While the origins of proportionality are clear, its justification remains murky. Proportionality emerged in the Prussian administrative courts in the late nineteenth centuryFootnote 191 before resurfacing in postwar German constitutional law in the late 1950s.Footnote 192 In the decades since, the doctrine has spread to a diverse array of jurisdictions around the globe.Footnote 193 Although proportionality is Germany’s most significant constitutional export,Footnote 194 Germany’s Federal Constitutional Court appeals to the doctrine to determine whether limitations of constitutional rights are justified while refraining from offering a justification of the doctrine itself:
No elaboration of what precisely the source of proportionality is has ever been given. Nor has the Court elaborated how this principle flows from the rule of law or the essence of fundamental rights. The reason for this taciturnity may have been that in Germany … in the early years the Court was not aware of the prominent role proportionality would play in the future. When this became apparent, the principle had already been established, so that further reasoning seemed unnecessary.Footnote 195
In the absence of a justification, the doctrine of proportionality has been subject to both reductionism and revisionism. Reductionist accounts cut down one or more of the doctrine’s branches – whether the limits on the ends for which rights may be limitedFootnote 196 or the limits on the extent to which rights may be limited.Footnote 197 Revisionist accounts formally retain each of the doctrine’s stages, but dilute the analysis, blurring the distinction between permissible and impermissible (1) ends for which rights may be restricted, (2) means through which rights may be restricted, and (3) extents to which rights may be restricted.Footnote 198 To the extent that a revisionist account hollows out the limits on limits on rights, plenary power returns.
The relativist model offers the most prominent justification of the doctrine of proportionality. When a limitation clause provides “that an interference with a right is justified if it is, for example, ‘necessary in a democratic society,’” relativists claim that the clause “deliberately release[s] judges from interpretative constraints and direct[s] them to the development of a moral argument about the acceptable balance of reasons.”Footnote 199 On this view, limitations clauses are an invitation to engage in open-ended moral reasoning concerning the relative strength of a constitutional right and the considerations that oppose its fulfillment. Proponents of rights relativism affirm competing visions of what all-things-considered morality demands, but they are unified by the idea that proportionality enables conflicts between rights and limits to be resolved in whatever way “the correct substantive theory of justice” requires.Footnote 200 To this end, relativists present the doctrine’s final substage as a balancing exercise that identifies the moral reasons that support and oppose constitutional protection in a given context, assesses the weight of these reasons, and, finally resolves the conflict in whatever way an external moral goal requires. From the relativist standpoint, the doctrine of proportionality is morally justified because it gives effect to whatever morality at large demands.Footnote 201 Call this the familiar strategy of justifying proportionality.Footnote 202
In recent years, the familiar strategy has come under heavy fire. On the one hand, critics observe that the familiar strategy imperils the determinacy and predictability to which the rule of law aspires. When the final stage of the proportionality analysis is conceived as an exercise in “general practical reasoning” without the “constraining features that otherwise characterise legal reasoning,”Footnote 203 the doctrine resurrects “all the disagreements found within contemporary political philosophy.”Footnote 204 The result is that wherever the familiar strategy holds sway, whether legislation stands or falls depends on what judges deem morality to demand. On the other hand, critics observe that the familiar strategy renders constitutional law incapable of protecting persons from injustice. Because proportionality is “unrestrained,” it “can achieve the most perfect justice. But the same freedom that allows for the most perfect justice can allow for the most perfect injustice.”Footnote 205 The debate between proportionality’s proponents and opponents then shifts to thorny counterfactuals about whether just outcomes would be “more likely in the circumstances of the real world” if proportionality was substituted for some other approach.Footnote 206 With this, we find ourselves in the midst of perplexities concerning how the overall balance of just and unjust outcomes attributable to proportionality stack up against the overall balance that would have accrued in the shadow of some other doctrine.Footnote 207 Here, constitutional adjudication turns on the hopeless task of comparing the incalculable to the unknowable.Footnote 208
The remainder of this section sketches an alternative to the familiar strategy of justifying proportionality. Instead of conceiving of proportionality as an invitation to calibrate the strength of rights by reference to some freestanding moral goal, I present the stages and sequence of proportionality as a doctrinal distillation of a distinctively constitutional idea: the structure of a system of constitutional rights determines the strength that its members possess.
A system of constitutional rights possesses three structural features that inform this determination. The first is that each member of the system of rights has the status of supreme law. The second is that each member of the system of rights forms a regulative standard to which legislation must conform. The third is that, where the constitution does not establish a hierarchy of rights, each member of the system issues an equal claim to fulfillment. In what follows, I elaborate each of these structural features and explain how they animate the sequenced stages that comprise the doctrine of proportionality. To be sure, my claim is not that the system of rights offers an alternative route to the relativist version of proportionality. Rather, the system of rights alone offers a conception of proportionality that preserves the priority of rights and precludes their nullification.
4.2.1 Limits on Ends: The Appropriate Objective Requirement
Within a regime of plenary legislative power, individual rights enjoy no elevated status. Instead of constraining and directing the exercise of public authority, rights are subordinate to law. Legislative authorities may restrict rights to advance any consideration, whether political or economic, social or cultural. While a regime of plenary power might not balance rights away altogether, it denies rights any priority over other considerations. In contrast, within a rights-based constitutional regime, the laws are subject to individual rights.Footnote 209 Each member of the system of rights stands at the normative apex of law’s hierarchy and enjoys priority over any legal norm that lacks the same pre-eminence.
The appropriate objective requirement recognizes this priority by imposing a limit on the ends for which rights may be restricted: no member of the system of rights may be restricted to advance any legislative objective that does not sound in a constitutional register. Because constitutional rights are supreme law, the pursuit of sub-constitutional objectives might violate rights but cannot justify their limitation. Whenever government seeks to limit a constitutional right, it must justify its position by establishing that the limitation seeks to advance some other norm that possesses constitutional strength, whether another constitutional right,Footnote 210 or a constitutional objective that is “essential if man is to continue to enjoy his rights and freedoms.”Footnote 211 The appropriate objective requirement ensures that when constitutional rights are infringed, the supremacy of every member of the system of rights remains respected.
Absolutist critics of proportionality overlook the appropriate objective requirement when they claim that the doctrine renders everything a matter of weight and degree and that, consequently, “categorical forms of reasoning have no place in proportionality.”Footnote 212 However, the appropriate objective requirement does not issue the contingent claim that rights typically outweigh sub-constitutional objectives in the balance. Rather, the requirement maintains that because constitutional rights are supreme law, any objective that does not share this elevated status must yield regardless of the benefits that might accrue or the burdens that might be avoided. Accordingly, even if it was possible to substantially further the realization of some sub-constitutional objective by modestly restricting a constitutional right, the restriction would be impermissible. Appealing to the appropriate objective requirement, courts have held that constitutional rights may not be infringed to advance a range of legislative objectives lacking constitutional stature, including majoritarian preference,Footnote 213 administrative expediency,Footnote 214 non-prohibitive cost,Footnote 215 the perpetuation of discrimination,Footnote 216 and the imposition of private moral or religious views.Footnote 217 In each of these instances, rights-based constitutionalism distinguishes itself from a regime of plenary power not by according rights immunity from restriction, but by according rights priority over all sub-constitutional considerations. With respect to such considerations, every constitutional right possesses absolute strength.Footnote 218
The appropriate objective requirement makes a critical departure from the account of proportionality that relativists revere and absolutists abhor.
Relativists determine the strength of prima facie rights by balancing the moral weight of the reasons that support constitutional protection against those that oppose it.Footnote 219 Since the strength of a prima facie right is determined through a balancing exercise, it follows that a prima facie right may be balanced against any consideration whatsoever.Footnote 220 The fundamental difficulty with this position is not that rights will invariably be balanced away. That is contingent. Rather, the fundamental difficulty is that balancing constitutional rights against considerations that lack the same status deprives constitutional rights of their priority as supreme law norms. Preserving this priority precludes the relativist tendency to “reduce claims of basic liberties or rights of individuals to mere claims of interests” and to “elevate mere claims of interests of government into claims of rights.”Footnote 221
Absolutists often criticize proportionality by claiming that the doctrine denies Dworkin’s idea that rights are trumps.Footnote 222 While relativists typically wash their hands of this idea,Footnote 223 the system of rights is committed to it. Recall that the appropriate objective requirement precludes restricting a constitutional right to advance the “ordinary routine goals of political administration.”Footnote 224 Stated conversely, the only basis for restricting one member of the system of rights is to further the realization of another. To put the same point in the language of the rights as trumps model, the doctrine of proportionality identifies and addresses cases in which one trump clashes with another. When the role of the appropriate objective requirement is acknowledged, the supposed incompatibility between proportionality and the idea that rights are trumps dissolves.Footnote 225 The result is that whether a right trumps some other trump in a given circumstance is determined by proportionality analysis, but the appropriate objective requirement ensures that no non-trump can ever trump a trump. The same point applies to Habermas’s claim that proportionality collapses the “firewall” between constitutional rights and policies, thereby depriving the former of their “strict priority” over the latter.Footnote 226 The appropriate objective requirement maintains this firewall by ensuring that every member of the system of rights enjoys unwavering priority over every legal claim that lacks the same pre-eminence.
Aharon Barak observes that there is “no uniform approach in legal literature and case law regarding the requirement that must be met with respect to proper purpose.”Footnote 227 The leading alternative to the approach that I sketch here is permissive. In putting forth this alternative, Dieter Grimm suggests that its organizing idea is that in a democratic system of government, “[w]hat is important enough to become an object of legislation is a political question and has to be determined via the democratic process.”Footnote 228 On this view, rights may be restricted to advance any objective that the constitution does not explicitly prohibit. While rights may not be balanced against unconstitutional objectives, they may be balanced against any sub-constitutional objective. For example, equality rights may not be restricted to advance a discriminatory objective but may be restricted by (and balanced against) objectives of legislative policy and preference.
By affirming the permissive approach, Grimm generates a tension between his accounts of the scope and strength of rights. In his luminous dissenting opinion in Riding in the Forest, Grimm explains that the scope of constitutional rights protect “the integrity, autonomy, and communication of the individual in his basic relations.”Footnote 229 Because the subject matter of these rights has “fundamental importance” for a legal order “founded on human dignity,” they must be “elevated” above other legal claims and “furnished in constitutional law with increased guarantees against public authority and in particular have binding effect on the legislator.”Footnote 230 However, when Grimm turns from the scope of rights to their strength, he abandons the idea that rights are elevated above ordinary legal claims in favour of the idea that rights may be justifiably restricted to advance sub-constitutional objectives.Footnote 231 These accounts of the scope and strength of rights are incongruous: rights cannot be both elevated above considerations of ordinary law and yet remain on par with them.
There are two ways to resolve this incongruity. The first is to adopt the relativist strategy and insist that rights encompass all human conduct and therefore enjoy no priority over considerations of legislative policy and preference. This approach is incompatible with Grimm’s claim that what falls within the scope of a constitutional right stands above such considerations. The second is to retain Grimm’s approach to the scope of rights and formulate a corresponding account of the strength of rights that acknowledges their supremacy. This Element follows that path.
4.2.2 Limits on Means: Rational Connection and Minimal Impairment
Government cannot justify restricting one member of the system of rights simply by avowing that its objective is to realize another. Even if the appropriate objective requirement is satisfied, it remains possible that the objective is not actually furthered by the means that the law employs. If mere gesturing to some other member of the system swept away the standard that any other member of the system of rights imposes on legislative authority, then it would be possible to play each standard against another, no standard would bind, and legislative authority would remain plenary. Accordingly, proportionality limits not only the ends for which rights are restricted, but also the means of their restriction. These limits on means take the form of the rational connection and minimal impairment requirements. These requirements reflect the same underlying idea: each member of the system of rights forms a standard to which legislation must give effect.
The rational connection requirement precludes the possibility of limiting one member of the system of rights through means that do not further the realization of another. To satisfy the requirement, government must demonstrate that the means through which a right is restricted are conducive to realizing the law’s objective.Footnote 232 Because the rational connection requirement is preceded by the appropriate objective requirement, the satisfaction of the rational connection requirement establishes that the restriction of one member of the system of rights contributes to the fulfillment of another. In contrast, when the rational connection requirement is breached, justification is impossible. Since each member of the system of rights constrains legislative authority, no member of that system may suffer a gratuitous injury.
The chain of justification extends beyond the rational connection requirement. Even where the rights-infringing means are rationally connected to the appropriate objective, it may be possible to achieve the relevant objective through means that are less injurious of the right. To the extent that this is the case, it is not possible to justify the restriction of one member of the system of rights with reference to the other. Accordingly, to satisfy the minimal impairment requirement, government must demonstrate the absence of an alternative means that would achieve the legislative objective while imposing a lesser injury to the right.Footnote 233 When multiple means would be equally effective in realizing the appropriate objective, the legislature must select the least intrusive means. In this way, proportionality analysis denies that legislative authorities possess discretion to diminish one member of the system of rights to a greater extent than the pursuit of another member demands.
The constraints that proportionality imposes on the means through which a right may be limited reflect the idea that each member of the system of rights is a standard to which legislation must conform. The standards that comprise the system of rights are not fulfilled by legislative measures that impede one member of the system without advancing another. Nor are these standards respected by measures that restrict one member to a greater extent than another’s claim to fulfillment can justify.
4.2.3 Limits on Extent: The Final Proportionality Substage
When the minimal impairment requirement is satisfied, two (or more) members of the system of rights stand in conflict. If the right is fully realized, the appropriate objective cannot be. And if the objective is fully realized, the right cannot be. The final stage of proportionality addresses the question of how conflicts between members of the system of rights are to be resolved in cases where the constitutional text presents each member “as being of equal validity and rank” and offers “no specific limitations clauses” for addressing conflicts that might obtain between them.Footnote 234
The idea that rights are trumps is powerless to resolve such conflicts. This idea proves decisive only when a constitutional right is confronted by a sub-constitutional consideration; it offers no resources for resolving conflicts between supreme law norms.Footnote 235 Nor may such conflicts be resolved by “postulating an abstract hierarchy” in which one right, say, freedom of expression, always trumps another, say, equality, or vice versa.Footnote 236 Where the constitutional text does not situate rights in a hierarchy, invoking any such priority would collapse the boundary separating constitutional interpretation from constitutional amendment. As Justice Iacobucci of the Supreme Court of Canada explained:
[I]t is not the role of courts to make normative judgments about which rights should be prioritized at the expense of others. However, it is proper for courts to give the fullest possible expression to all relevant Charter rights, having regard to the broader factual context and to the other constitutional values at stake.Footnote 237
The final proportionality substage limits the extent of any restriction upon any member of the system of rights. On the one hand, this substage precludes the abject nullification of one member of the system of rights to further the fulfillment of another. On the other hand, the substage precludes substantial interference with one member of the system of rights to modestly further the fulfillment of another.Footnote 238 Each of these limits on the permitted extent of limitations upon rights follows from the same underlying idea: members of the system of rights possess an equal claim to fulfillment. Accordingly, where conflicts arise between members of the system of rights, “the question is not to determine which one prevails but to find a solution which leaves the greatest possible effect to both of them (Pracktische Konkordanz).”Footnote 239 This idea has two aspects, mutual accommodation and contextual application.
First, mutual accommodation distinguishes the final proportionality substage from the minimal impairment requirement that precedes it. Minimal impairment analysis determines whether the conflict between members of the system of rights is overstated, by considering whether there is a means of realizing the relevant objective that is less injurious of the right. Absent a less injurious measure, the minimal impairment requirement would permit any degree of restriction.Footnote 240 In contrast, the final proportionality substage does not proceed from the assumption that the objective is “set in stone” and must be achieved “in its complete integrity.”Footnote 241 Because each member of the system of rights has an equal claim to fulfillment, members stand in a relation of reciprocal determination in which each member may restrict and in turn be restricted by every other.Footnote 242
Next, contextual application determines whether a member of the system of rights restricts or is restricted by another member. Where members of the system of rights issue an equal claim to fulfillment, conflicts between them cannot be resolved in abstraction:
The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values …Footnote 243
In different contexts, members of the system of rights might be restricted and fulfilled to varying degrees. The more a legislative act (or an administrative decision) frustrates the purpose of the right, the more severely the right is infringed. For example, the purpose (or purposes) underlying freedom of expression may be impacted more severely by a restriction on political expression than by a restriction on the publication of intimate details of a matrimonial dispute.Footnote 244 Conversely, the extent to which the restriction of a right furthers some competing member of the system of rights is similarly variable. The final proportionality substage protects the equal claim of each member of the system of rights to fulfillment by permitting mutual adjustments in which members of the system of rights may be restricted at their periphery so that “as much as possible of the original protective content of each is preserved.”Footnote 245 Where the final proportionality substage is satisfied, the purpose of a particular right is breached, but the underlying purposes of the system of rights are maximally realized. In this way, proportionality ensures that the specific members of the system of rights “can operate together as parts of [a] single, coherent account of legitimate state action.”Footnote 246
In our collective constitutional terminology and imagination, the metaphor of balancing has become intertwined with the final proportionality substage. Relativism seeks to develop a rigorous formula that captures the metaphor’s essence.Footnote 247 The system of rights warns that the metaphor invites two dangerous distortions.
First, according to the relativist model, the final substage is a balancing exercise in which one weighs the moral reasons that support and oppose constitutional protection in a given context.Footnote 248 Since the strength of a right is determined by balancing it against whatever considerations oppose it, a right may be balanced against any consideration.
The system of rights opposes this conclusion. As we have seen, the final proportionality substage is preceded by the appropriate objective requirement, which maintains that each right, by virtue of its status as a supreme law norm, enjoys priority over any legal norm that lacks constitutional stature. Accordingly, the final proportionality substage applies to the relationship between members of the system of rights, not to the relations between members of that system and sub-constitutional considerations. Considerations of legislative policy, administrative convenience, and private moral or religious views might violate rights, but cannot justify their limitation.
Second, the relativist model permits the restriction of any right to any extent – even a right’s complete negation – when the gains to be achieved (or the burdens to be avoided) possess sufficient weight.Footnote 249 From the standpoint of the system of rights, the abject sacrifice of any member of the system of rights is not typically unjustified but necessarily unjustifiable. For the negation of a member of the system of rights can neither be justified by appealing to a sub-constitutional consideration nor to another member of the system of rights. In the former case, justification is precluded by the priority of each member of the system of rights over any sub-constitutional legal norm. In the latter, justification is precluded because if each member of the system of rights issues an equally valid claim to fulfillment, no member can justify another’s negation. Accordingly, there is no consideration capable of justifying the negation of a constitutional right. Limitations might be justified or unjustified; negations are unjustifiable as such.Footnote 250 Even where a constitutional right is subject to a limitation clause, government does not possess plenary power with respect to the right’s purpose.
To summarize: the doctrine of proportionality consists in a set of limits on the limits to which rights may be subject: limits on the ends for which rights may be limited (the appropriate objective requirement), limits on the means through which rights may be limited (the rational connection and minimal impairment requirements), and limits on the extent to which rights may be limited (the final proportionality substage). Each of these limits on limits is rooted in a structural feature of the system of rights. The limit on ends reflects the rank of constitutional rights as supreme law norms. The limits on means reflect the character of rights as supreme law standards to which legislation must conform. The limit on the extent of a restriction reflects the equal claim of each member of the system of rights to fulfillment. In sum, the limitation of a particular right is justified when it respects the organizing structure of the system of rights. These ideas are collected in Table 6.
Table 6 The strength of rights
| Within a system of constitutional rights … . | The system of rights limits … | Limitations on rights must … |
|---|---|---|
| … each right is supreme law. | … the ends for which rights may be limited. | … pursue an appropriate (constitutional) objective. |
| … legislation must conform to each right. | … the means through which rights may be limited. | … employ means that are rationally connected to the objective and that achieve the objective in a manner that is minimally impairing of the right. |
| … that establishes no hierarchy among its members, each member has an equal claim to fulfillment. | … the extent to which rights may be limited. | … ensure that the extent of the objective’s achievement justifies the extent of the right’s restriction. |
The structure of the system of rights provides a standpoint for distinguishing proportionality from revisionist accounts of the doctrine, which parrot proportionality’s distinctive terminology while diluting or dissolving the limits on limits that proportionality encompasses. First, revisionist accounts dismantle the limits on the ends for which a right may be restricted. Instead of asking whether the objective furthers a member of the system of rights, revisionist accounts inquire into the “statutory objective”Footnote 251 or the “communal values” the legislation seeks to advance.Footnote 252 In the resulting analysis, constitutional rights may be limited by any objective that legislation pursues, and the priority of constitutional rights possess is lost. Second, revisionist accounts dilute the limits on the means through which rights may be restricted. Instead of asking whether the means that the law employs are rationally connected to an appropriate objective, the doctrine asks whether government had a “reasonable basis” for believing that the law was rationally connected to the statutory objective.Footnote 253 And instead of insisting that the law pursues an appropriate objective through means that are minimally impairing of the right, revisionist accounts emphasize that the “impugned measures need not be the least impairing option”Footnote 254 or the “least intrusive solution.”Footnote 255 Accordingly, revisionist accounts do not conceive of rights as standards to which legislation must conform. Third, revisionist accounts give rise to a balancing of costs and benefits that recognizes no limits on the extent to which a right may be restricted.Footnote 256 The result is that the entire scope of a right is susceptible to being balanced away if that would, however trivially, further the realization of the legislative objective. When each of the limits on limits are dissolved, plenary power reasserts itself because any right may be restricted for the sake of any objective, through any means, and to any extent. From the standpoint of a regime that seeks to protect rights-bearers from plenary power, the central question concerning the strength of rights is not whether proportionality will be applied. It is whether the requirements that comprise the doctrine limit the limits to which rights are subject or limit the power of rights to protect their bearers. The former possibility preserves the protective character of rights; the latter perpetuates plenary power and thereby betrays the organizing idea of rights-based constitutional order.
4.3 Conclusion
The system of rights offers an alternative to the way in which absolutism and relativism justify judgments about the strength of constitutional rights.
From the absolutist standpoint, rights might be violated, but their restriction can never be justified. If every constitutional right echoes an exceptionless moral requirement, any restriction of any right is morally unjustifiable. Thus, absolutists collapse the distinction between justified limitations and unjustified violations of rights: to limit (infringe, breach, restrict, etc.) a right is to violate it.Footnote 257
The system of rights defends this distinction. From the standpoint of the system of rights, justified limitations and violations are similar in one respect and dissimilar in another. They are similar in that each breaches the scope of a particular right, leaving the relevant standard unfulfilled in a given context. They are dissimilar in that each stands in a different relationship to the system of rights. Limitations are justified when they respect each of the organizing ideas of the system of rights – the idea that members of this system are supreme law, that legislation must conform to each member of the system, and that (in the absence of a constitutional text establishing a hierarchy of rights) each member of the system of rights possesses an equal claim to fulfillment. In contrast, violations breach not only a particular right but also one or more of the organizing ideas of the system in which rights stand.Footnote 258 From the standpoint of these ideas, limitation and violation are not equivalent terms.
From the relativist standpoint, the strength that a right or a limit possesses in a given context is a “question of substantive moral and political theory.”Footnote 259 Because determinations about the strength of rights depend upon “premises provided from the outside,”Footnote 260 proportionality “inherit[s] all the unreliability and all the imponderabilia of those substantial, political, moral, and contested propositions which are used as normative premises in applying the law of balancing.”Footnote 261 The system of rights takes a different path. Instead of relying on an external moral goal to determine the strength of rights, the system of rights determines the strength of its members in light of a set of distinctively constitutional moral commitments acknowledging (1) that constitutional rights are supreme law standards that bind public authorities, (2) that public authorities must conform to these standards, and (3) that conflicts between equal members of the system of rights must be resolved in a manner that preserves as much as possible of each. External moral goals play no role in this analysis.
In determining the strength of rights, the system of rights does not abandon the rule of law, resurrect plenary power, or generate interpretive strain.
The system of rights does not abandon the rule of law because it does not follow the relativists in treating limitation clauses as an invitation to engage in legally unconstrained moral reflection to determine whether a right or a limitation should prevail in a given context. Instead, the restriction of a particular right is justified when it respects the organizing ideas of a system of rights and unjustified to the extent that it effaces them.
Further, the system of rights does not resurrect plenary power. Because the “power of the public authority to impose limitations is itself limited,”Footnote 262 rights continue to constrain public authority. Together, the limits on limits operate to uphold constitutional rights as members of a set of supreme law standards that public authorities must increasingly fulfill.
Finally, the system of rights avoids the interpretative strain that the absolutist and relativist conception of the strength of rights generates. As we saw in Section 1, the absolutist claim that the strength of a right is unyielding culminates in the repudiation of limitation clauses that explicitly authorize the restriction of a constitutional right.Footnote 263 In turn, the relativist claim that constitutional rights may be balanced away in their entirety whenever the benefits gained or burdens avoided are sufficiently weighty generates interpretive strain whenever a constitutional provision explicitly guarantees that the core or essence of a constitutional right is immune from incursion. The system of rights does not join the absolutist and relativist models in disregarding constitutional provisions that speak to the strength of rights. On the one hand, the system of rights accommodates limitation clauses by maintaining that when members of the system of rights stand in contextual conflict, justified limitations are possible. On the other hand, the system of rights accommodates provisions that protect the core or essence of rights by explaining why the negation of any member of the system of rights is necessarily unjustifiable. In this way, the system of rights alone explains how familiar constitutional provisions engaging the strength of rights can be taken seriously.
5 Conclusion
What justifies judgments about constitutional rights? Constitutional theorists and practitioners typically respond to this question in different ways.
The predominant view among constitutional theorists is that constitutional judgments raise no distinctive moral principles. Constitutional judgments are justified when they are supported by the balance of moral reasons, and unjustified when they are not. Of course, disagreement persists about what is morally desirable, and whether morality should issue its demands to the scope or strength of rights. But there is broad agreement that the task of legal institutions is to bring about some morally desirable outcome that can be fully comprehended and specified apart from rights-based constitutional order. On this view, constitutional judgment is ordinary moral judgment at scale.
Constitutional practitioners often defend the opposing idea that constitutional judgments are justified when they conform to a set of considerations that are distinctive to rights-based constitutional law. These considerations are formulated in two overarching doctrines that regulate rights-based adjudication: purposive interpretation and proportionality. The former sets out the sequenced set of considerations apposite to judgments that engage the scope of rights, while the latter sets out the sequenced set of considerations apposite to judgments that engage their strength. Together, these doctrines form a method of resolving constitutional complaints that renders public power accountable to rights. This method can be justified in constitutional law’s own terms.
Should constitutional judgments appeal to justificatory resources found outside constitutional law or to justificatory resources found within it? This Element argues that the conception that operates from outside constitutional law generates and perpetuates an impasse between competing models of rights that jointly abandon the rule of law, render rights nugatory, and disregard constitutional text. In contrast, the justificatory conception that operates from within rights-based constitutional law avoids each of these difficulties and explains how rights-based constitutional order is what it purports to be: the rule of law’s alternative to placing legal subjects at the mercy of their government.
Acknowledgements
I am deeply grateful to everyone who contributed to this project. For helpful conversations and comments, I would like to thank Eric M. Adams, Trevor Allan, Aharon Barak, Ilana Bleichert, Ian Davis, Hassan Dindjer, Chris Essert, Colin Feasby, Colleen M. Flood, Colin Grey, Alon Harel, Jeff King, Howie Kislowicz, Mattias Kumm, Rory Gillis, Dieter Grimm, Glenn Joyal, Joanna Langille, George Letsas, Ryan Liss, Vanessa MacDonnell, Margaret Martin, Carissima Mathen, Melanie Maurer, Peter Oliver, Manish Oza, Zoltán Pozsár-Szentmiklósy, Akis Psygkas, Amnon Reichman, Arthur Ripstein, Zoë Sinel, Terry Skolnik, Martin Stone, Malcolm Thorburn, Mark Walters, Grégoire Webber, Rivka Weill, Lael Weis, James S. F. Wilson, Andy Yu, Ariel Zylberman, and two anonymous referees for Cambridge University Press. I am also indebted to the editors of this series for their support and patience: Sally Zhu, Kenneth M. Ehrenberg, Gerald J. Postema, and George Pavlakos. Finally, thanks is due to Krithika Shivakumar.
I am fortunate to have worked with extraordinarily talented research assistants throughout this project. Oliver Flis and Abigail Bergeron wrote illuminating and perceptive research memos. Hannah Colbert and Benjamin Zolf provided excellent editorial assistance. Megan Pfiffer edited the entire manuscript with tremendous skill and insight. This project was supported by an Insight Development Grant from the Social Science and Humanities Research Council of Canada.
I am profoundly indebted to the hundreds of Queen’s Law students who braved my constitutional law courses, and whose thoughtful questions and comments over the years propelled me deeper and deeper into the ideas in this Element. In particular, I owe a debt of gratitude to the law and philosophy students in my 2023 Jurisprudence seminar, who workshopped an earlier version of this Element. I am so lucky to have routinely encountered such remarkable students.
Most of all, I am indebted to the love and support of my family: to my parents, Ernest and Lorraine Weinrib, who taught me – among many other things – legal theory and comparative constitutional law, respectively; to my wife, Debra Hamer; and our remarkable children, Max and Reuben.
To Maya, Hannah, Leila, Max, Reuben, and their generation
Series Editors
George Pavlakos
University of Glasgow
George Pavlakos is Professor of Law and Philosophy at the School of Law, University of Glasgow. He has held visiting posts at the universities of Kiel and Luzern, the European University Institute, the UCLA Law School, the Cornell Law School and the Beihang Law School in Beijing. He is the author of Our Knowledge of the Law (2007) and more recently has co-edited Agency, Negligence and Responsibility (2021) and Reasons and Intentions in Law and Practical Agency (2015).
Gerald J. Postema
University of North Carolina at Chapel Hill
Gerald J. Postema is Professor Emeritus of Philosophy at the University of North Carolina at Chapel Hill. Among his publications count Utility, Publicity, and Law: Bentham’s Moral and Legal Philosophy (2019); On the Law of Nature, Reason, and the Common Law: Selected Jurisprudential Writings of Sir Matthew Hale (2017); Legal Philosophy in the Twentieth Century: The Common Law World (2011), Bentham and the Common Law Tradition, 2nd edition (2019).
Kenneth M. Ehrenberg
University of Surrey
Kenneth M. Ehrenberg is Professor of Jurisprudence and Philosophy at the University of Surrey School of Law and Co-Director of the Surrey Centre for Law and Philosophy. He is the author of The Functions of Law (2016) and numerous articles on the nature of law, jurisprudential methodology, the relation of law to morality, practical authority, and the epistemology of evidence law.
Associate Editor
Sally Zhu
University of Sheffield
Sally Zhu is a Lecturer in Property Law at University of Sheffield. Her research is on property and private law aspects of platform and digital economies.
About the Series
This series provides an accessible overview of the philosophy of law, drawing on its varied intellectual traditions in order to showcase the interdisciplinary dimensions of jurisprudential enquiry, review the state of the art in the field, and suggest fresh research agendas for the future. Focussing on issues rather than traditions or authors, each contribution seeks to deepen our understanding of the foundations of the law, ultimately with a view to offering practical insights into some of the major challenges of our age.
