Legislated rights: from Magna Carta to Montgomery March.

AuthorMiller, Bradley W.
PositionFaulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery
  1. Introduction

    By inviting us to frame our reflections on rights in the context of two end points--Magna Carta and the Montgomery March--the conference organizers have suggested a thesis that is subtly subversive of the dominant way of thinking about rights in contemporary legal theory and practice. Consider: Magna Carta is a set of positive legal propositions, chosen by those in authority in a particular political community--England--to specify the natural rights and obligations of persons in that community. The Montgomery March was a demand for a new political settlement to be enacted into positive law, a settlement that better instantiated natural law and natural rights. It was a demand that would be addressed through the Voting Rights Act of 19651 and other legislative initiatives.

    Both of these paradigm examples are instances of mobilizations that resulted in societal changes ultimately formalized and consolidated through law. Significantly, in these two examples, the consolidation was not only through law, but specifically through one type of law--legislation. What the selection of these two paradigm examples suggest, and what I want to explore, is this: that the long unfolding story of human rights in the English-speaking world is largely a story about reasoned deliberation about the best way to frame life lived together in community. It is focally a story about deliberation that culminates in legislation.

    This is of course contrary to the dominant narrative of human rights in contemporary democracies. The dominant narrative has that individual rights trump legislation, and that courts are the guardians of those rights. (2) Far from protecting or promoting rights, legislatures, on this conception, are structured towards injustice, and must be supervised, admonished, and corrected by courts. The touchstone is Brown v. Board of Education. (3) The central player is the judiciary. This court-centred way of thinking about rights--and about political and legal institutions--is not purely, or even predominantly, an American phenomenon. It is now common to most of the western democracies. It is evident, for example, in the jurisprudence of all of the countries that Professor Stephen Gardbaum of the University of California, Los Angeles (U.C.L.A.) describes as following the New Commonwealth Model of constitutionalism (countries like Canada, New Zealand, and the United Kingdom (U.K.)), and as well as the signatories to the European Convention on Human Rights. (4)

    I want to sketch another way of thinking about constitutional rights, one in which legislatures are full partners with courts and other government institutions in protecting and promoting rights. My plan is to describe the dominant model of rights, before introducing a reappraisal of the nature of constitutional law, legislation, and judicial review. (5)

  2. THE DOMINANT MODEL: RIGHTS, THE FORUM OF PRINCIPLE, AND THE FORUM OF POLICY

    Before moving on to present the legislated rights model, I will set out in greater detail the dominant model of rights and courts that I am criticizing.

    There are two basic ideas here: first, is that legislatures should be understood as an institution that aggregates preferences. Thus, the legislature is understood as a kind of voting machine: it is structured towards producing legislation that favours the interests of the majority, and is at the expense of minority groups at least some of the time. We should not, therefore, expect legislatures to act for the common good or in ways that respond to the needs of persons who are outside of the narrow interests of the majority party. At best, legislative majorities will ignore the interests of the relatively powerless, and at worst will actively exploit them. As an example, take national security, legislatures can be expected to pursue policies that will protect national security by intentionally infringing upon the rights of disfavoured groups. At the very least, legislatures can be expected to treat deliberate rights infringements as an acceptable means to pursuing important goals.

    The second idea is that judicial review is a necessary check on the rights-infringing pathologies of majoritarian legislatures. Courts, where authorized to invalidate legislation under a bill of rights, are the appropriate forums for those who need to assert their rights against the majority's preferences. Rights, as a matter of principle, operate as trumps against legislation that is understood to be, at best, a thing desired for no greater reason than it is what the majority happens to want--a product of mere preference - and, at worst, a product of animus. On this model, the judicial invalidation of legislation is a requirement of justice.

    These two ideas were popularized in the work of Ronald Dworkin. On Dworkin's formulation, courts are the forums of principle, while legislatures are the forum of policy. (6) According to Dworkin, the legislature operates in the realm of policy, setting out 'a goal to be reached, generally an improvement in some economic, political, or social feature of the community.' (7) Courts, by contrast, are guardians of principle, of those standards to be observed 'because it is a requirement of justice or fairness or some other dimension of morality.' (8) Principles describe rights, while policies describe goals. (9) Accordingly, the final say on rights should, on Dworkin's account, reside with courts. (10)

    It is my intention to challenge this thesis, without in any way denying that legislatures sometimes have acted (and have a standing temptation to act) unjustly, or that courts, in the United States and other places, seek to act in ways that they believe will advance human flourishing. My argument will proceed in three steps. First, I will re-examine the nature of a written constitution, and the role it plays in both legislative and judicial reasoning. Second, I will sketch a more optimistic and, I think, more realistic account of legislating than that proposed by Dworkin. Third, I will consider the extent to which judicial review transforms the nature of legal reasoning, and how this affects the case for judicial review. (11)

  3. RE-CONCEIVING THE WRITTEN CONSTITUTION

    To begin our reflections on written constitutions, we need to consider some reasons why we have law in the first place. James Madison once argued that "if men were angels, no government would be necessary." (12) I'm not so sure. Even a society of individuals who have a perfect grasp of morality and are perfectly inclined to follow it--a society of saints--can benefit from government and law.

    Consider this: a person's well-being is furthered by the open-ended pursuit of the many human goods. Knowledge, for example, is a great good, and knowledge can be pursued in countless ways. A second example would be friendship. The immediate attractiveness of these two goods have, I suspect, led many of you to pursue a legal education. To seek to understand how an institution like law operates, and to understand how a person solves problems using the techniques of law, is to pursue knowledge. To apply one's legal knowledge to solve problems or facilitate some commercial pursuit is to cooperate with others in a form of friendship. Note, however, that there are countless other ways in which to pursue friendship and knowledge. There are also several other basic human goods to pursue as well, in countless different ways. (13)

    In a free society, people choose to pursue the good in their own ways, selecting from an almost unlimited range of possibilities. Even in a society of saints, where the range of possibilities will be limited by the unattractiveness of morally valueless pursuits, there is a risk--indeed likelihood--that the broad range of opportunities that remain will be an occasion for things to go awry. The cumulative, uncoordinated actions of free and creative persons will inevitably result in unintended harms that will be suffered by some, or perhaps all in that society. A feature of large scale, uncoordinated choices is that people--without intending any harm--get in each other's way, or impede each other's plans in such a way that little gets done, or just not done as well as it could have been. A failure to coordinate will have a negative impact on the wellbeing of many in the community, perhaps all. To take a trivial ex ample, consider the effect on your daily commute when the traffic lights fail. To take a non-trivial example, simply recall the day's news coverage of affairs in those nations where government through corruption, incompetence, or mere weakness--fails to provide anything resembling the public security or infrastructure necessary to support a decent life.

    It will often be the case that the well-being of persons in a community will require not only some coordination of individual plans, but also collaborative efforts towards achieving common projects. This is because the well-being of persons who live in a community will often depend on securing goods--common goods--that one person cannot obtain alone. (14) Such common goods (e.g., common defence against external threats or public works undertakings) can only be secured when a community agrees to pursue the common goal and agrees to the means or the specific plan of action, by which it is to be achieved. Where goods are of a nature that they can only be secured in this way, and where the well-being of persons is a function of the provision of these goods, cooperation in a common plan to secure these goods will not only be necessary; it will often be morally required. (15)

    A society of saints, of course, would understand the moral obligation to coordinate and cooperate with others and would be happy to do so. But a bare willingness to cooperate does not automatically settle which proposals they should adopt, or the means they should select to carry out the adopted proposal. In fact, the more energetic, creative, and capable the...

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