The Negotiable Constitution: On the Limitation of Rights.

• Author: Oberdiek, John
• Position: Book review

THE NEGOTIABLE CONSTITUTION: ON THE LIMITATION OF RIGHTS. Gr6goire C.N. Webber. (1) Cambridge University Press. 2009. Pp. viii + 231. $95.00.

Ours is an age of rights. The language of rights permeates moral and political discourse. What rights we have, and what it means to have them, are matters of public debate that are as familiar as they are vital. Discussions of free expression, privacy, or abortion, for example, are almost always cast in terms of the rights to free expression, privacy, and abortion. And it is not hard to explain, at least in part, why this is so. A political culture revolving around rights is cultivated and sustained by a constitutional democracy. There are at least two reasons for this. First, constitutions themselves give pride of place to rights. Constitutions define a political framework whose guarantees are defined as rights. Second, rights flourish in constitutional democracies because they serve as a lingua franca. They provide a single recognized and seemingly stable normative currency when the moral pluralism characteristic of democracies might otherwise threaten the possibility of there being any common coin whatsoever. Constitutional democracies like ours create and support a culture of rights, then, due to the twin natures and attendant pressures of constitutionalism and democracy.

This explanation of the importance of rights in a constitutional democracy, though, illuminates neither what constitutional rights themselves are nor how--to say nothing of how well--they play the role they are assigned within our political culture. Indeed, by conceiving of constitutional rights as guarantees and as a stable normative currency, the explanation can mislead. It can lend itself to a facile picture of constitutional rights that no one accepts, in which the constitutional status of any legislation or conduct can be determined just by invoking abstract rights. Things are not so simple. Constitutional rights may be guarantees, but not against everything; rights may also serve as a stable common currency, but the currency is not fixed and inflexible. There is no democratic constitutional regime whose practices suggest otherwise. In fact, most democratic constitutions or international charters of rights explicitly incorporate what is known as a limitations clause (or a set of tailored ones) that qualifies the rights there established. This is true of, for example, the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, the German Basic Law, the South African Bill of Rights, and the New Zealand Bill of Rights. The Canadian Charter is representative, guaranteeing its enumerated rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (3) The Canadian Charter and other similar fundamental legal instruments recognize rights, then, but only in tandem with a limitations clause. The rights are necessarily subject to whatever constraints the clause articulates. Interestingly, the United States Constitution is the exception that proves the rule, if it is an exception at all: its Bill of Rights contains no express limitations clause, and yet the Supreme Court, of course, interprets the rights contained therein to be limited in various ways, which is why even the First Amendment does not protect, say, incitements to imminent violence or child pornography. This suggests that a limitations clause simply makes explicit what is already implicit whenever rights are invoked, namely, that rights are limited in scope.

Granting that constitutional and other charter rights are typically guaranteed subject to an express limitations clause, what does it mean to say that they are so qualified and what can we learn about constitutions and constitutionalism more generally by reflecting on the ubiquity and role of limitations clauses? In The Negotiable Constitution: On the Limitation of Rights, Gregoire C. N. Webber offers contrarian answers to these questions with an ambitious reconceptualization of constitutions and their rights. His primary target is "the received approach" to limitations clauses, and its sins are many, according to Webber:

It endorses an overzealous definition of rights, which results in rights-claims to everything thereby prompting almost all legislation (and State action more generally) to conflict with some right. In consequence, there are frequent, and indeed expected and unavoidable conclusions that rights have been infringed. Yet, countless rights-infringements are, as a matter of course, justified, with the result that it is now a governing assumption of the received approach that rights are not absolute and that they are generally opposed to or in competition with the public interest. The definition of a right is determined on the basis of the individual claimant's interest alone and does not take into account other rights or considerations not part of the right's purpose; these considerations are all relegated to the limitation clause analysis .... That analysis--considered to be primar[il]y if not exclusively a judicial undertaking--draws on a 'balancing of interests' and a requirement of 'proportionality' between the right and the limitation, which is informed by evidence and (albeit only ostensibly) political morality (p. 88). Webber rejects the received approach, root and branch. He rejects what he believes is the false technicality of its proportionality and balancing analyses, its hyper-individualistic conception of rights, its denigration of popular legislation as inherently antagonistic to rights and concomitant worship of the judiciary, and its denial that rights are absolute. But the received approach errs most fundamentally, on his view, in its "overzealous definition of rights" (p. 88).

Its definition of rights is overzealous, at bottom, because of overreaching: according the received approach, if a constitution or charter grants a right to free expression, for example, then everything that counts as expression is subsumed by the right. No normative distinctions are made, at this stage, between protected and unprotected expression. The received approach thus takes the generality of the formulation of rights literally, as entailing universal application--one's right is to free expression, not to some free expression. This is the crux of the first of Webber's complaints about the received approach's understanding of rights. Given how capaciously the model construes rights, legislation will almost always tread upon someone's right to something, and that gives the legislative process--and democracy more broadly--a bad name. At a minimum, construing rights as the received approach does regularly forces a choice between our commitment to rights and our commitment to democracy.

Webber's second complaint about the received approach's conception of rights is closely related. He contends that its overzealous definition of rights actually robs rights of the normative force that is widely held to distinguish them. This is evident, according to Webber, in the two-stage analysis of constitutionality necessitated by the approach's all-encompassing model of rights: one determines, first, whether a right has been infringed and, only if one has been, whether the infringement is justified according to the limitations clause. It is therefore the limitations clause, taken up at the second stage of the inquiry, and not the antecedently-defined right, that does (at least the majority of) the justificatory work. Defining the right or determining what constitutes the right is, on this view, a straightforward empirical exercise of interpretation. Determining whether some conduct is covered by a right to free expression, for example, requires determining (only) whether the conduct in question counts as expression, which is just a matter of interpretive fact. Even concluding that some conduct is expression and is therefore covered by the right, however, entails nothing about whether that conduct is actually protected by the right. In distinguishing between coverage and protection in this way, Webber charges, the received approach reveals that rights themselves lack normative purchase. For whether a right actually protects anything, and does not merely cover it, is a function of the content of the independent limitations clause, not of the right itself. Webber thus indicts the received approach for underplaying the normative force of rights.

Webber's most fundamental positive thesis, in contrast, is that constitutional rights are actually constituted by their accompanying limitations clause. On the view he endorses, it makes no sense to distinguish and lexically order defining the right and assessing the justifiability of its abridgement. Instead, according to Webber, the very definition of a right draws upon those multifarious considerations that the received approach reserves to the second stage of its analysis, concerning the limitations clause. What is reserved to the second stage of analysis under the received approach, in other words, gets folded into the first stage under Webber's approach, so that one cannot define a right without knowing the right's limitations--what it does and does not...