There is a rather deep divide between constitutionalists writing in the European or British traditions and those writing in the American tradition. As we know from the work of Jeremy Waldron, those in the Anglo-tradition are reticent to embrace strong judicial review. (2) Meanwhile, Americans, at least since Ronald Dworkin, have loudly lauded the superiority of a system of judicial review. (3) For much of the past forty years, American constitutionalists have taught that courts are grand heroes of individual rights. In this essay, I argue that Americans should be wary of judicial glorification, at least if they hope to understand our constitution entire. We must understand what democratic experience tells us: rights paradoxically depend on majorities for their articulation and entrenchment. Legislated Rights: Securing Rights Through Legislation (4) explains why.
What I mean by the "constitution entire" is a constitution with all its working parts: a President, a Congress, and a set of courts. Any real theory of constitutionalism must take all these parts together, not apart. It cannot be a theory of judicial review alone. It is said, with pride, by the Supreme Court that it is its job to "say what the law is." (5) But however much the court says this, those who sit in the other branches are likely to find this strange. The legislature, sitting in Article I, surely thinks it has the duty to say what the law is: it passes laws. So, too, the President who must approve those laws. Surely, he thinks he has a role in saying what the law is. The truth is that all the departments--the Congress, the President, and the Supreme Court--say what the law is. What is strange is that the Supreme Court, and American constitutionalists, seem to think that this is the sole provenance of the unelected.
Enter Legislated Rights, a new book by a collection of legal theorists across the globe. Unlike other works that focus on judicial review, this book aims to provide a positive case for rights legislation. For those of us who study the constitution entire, this is a welcome addition to the existing literature. Legislated Rights is an important book. It probes deeply. To many American scholars, the project will seem oxymoronic since rights are associated with courts, not legislatures. To get there, however, these scholars do much more. They offer a theory of the nature of rights as well as a critique of the conventional judge-centered view of rights. The authors have accomplished quite a feat, penning a coherent narrative, with six separate authors.
In this essay, I translate their claims to an American audience. The authors are spread across the world, joined by their ideas, coalescing around issues focused on the Universal Declaration of Human Rights. Each writes in the "natural law" tradition of John Finnis. And, in the parts of the book that focus on rights and in particular what the authors call a "three-term right," (6) they rely upon Finnis (7) and the grand master of American rights-theory, Wesley Hohfeld. (8) I will leave much of the theorizing about the philosophical nature of rights to others. The more important part, for American readers, is that the authors insist that legislatures should, and do, have something to do with rights. The conventional view in America is that rights belong to the work of courts, not legislatures, and that legislatures are invariably opposed to rights and full of counter-majoritarian monsters. The authors push back, arguing that legislatures are in the best position to articulate the scope and boundaries of right.
In Part I, I defend the authors' thesis about rights with a reminder about American history. Over the long, long term of American constitutional history, courts have not been public heroes; one might even argue that they are villains, throttling rights created by both state and federal legislatures. In Part II, I turn to the book's claims about the ways in which judges may undermine the concept of right and the very idea of right, by allowing the state to justify the infringement of rights. This is a very serious indictment of American constitutional law, which largely proceeds by interrogating the government's justification, its compelling "interests," or substantial reasons for acting. I argue that the American separated-powers structure (as opposed to a parliamentary system) explains why our courts have ended up in the position of rights-justification. Finally in Part III, I turn to a potential critique of the book--what I call the "legislative monster" problem. I raise a real historical problem--America's embrace of eugenic legislation during the early 20th century, a state legislative development that helped to inspire Hitler's own eugenic program. The separation of powers has made the American Constitution extraordinarily stable, but that stability has a price: the entrenchment of social and political inequality. World War II and the advent of the Universal Declaration of Human Rights transformed the mission of our Supreme Court into a court that sought to deploy the language of rights to restrain oppressive legislation. American judicial review is not going away, but it is no panacea. Rights depend upon a paradox--they need majoritarian support for their elaboration and entrenchment.
LEGISLATED RIGHTS: A BRIEF AMERICAN HISTORY
The very title of this book--"Legislated Rights"--may seem oxymoronic to some American scholars and constitutionalists. American constitutional law is decidedly court-centered. It tends toward a binary view of rights and institutions: judges and courts do rights; legislatures do policy. Under this conventional view, courts are seen as wise counter-majoritarian institutions; by contrast, legislatures are seen as crass majoritarian institutions. Courts are capable of protecting rights because judges are not "political"; legislatures are inherently political and for that reason uncertain guardians of right. These concepts are embedded in Supreme Court cases as much as in grand works of legal philosophy. When the Justices throw around the term "Lochner" as an insult, what they mean has less to do with Lochner v. New York (9) than it does with the court's power to act in ways ultimately seen as deeply counter-majoritarian.
Despite this conventional wisdom, there are many reasons to doubt its truth, or at least that it explains the truth of the constitution entire, which is to say the constitution which includes political as well as legal branches, the Presidency, the Congress, as well as the courts. Constitutional law courses too often launch into Marbury v. Madison (10) without stopping to read the entire Constitution. Most of the Constitution has nothing to do with specifying rights and everything to do with creating a relationship between the people and its government. (11) Why? The Founders had suffered a failure of governance. The Articles of Confederation had proved unworkable and potentially fatal to the young Republic. The country could not pay its debts, foreign powers threatened, and individual states dominated. Crisis forged the need for a new federal constitution.
The 1787 Constitution was drafted to create a government, first. There is an eminently practical logic to this: when there is no government, how is one to protect against a government with claims of right? Madison followed the logic of all constitution drafters: the most important thing a constitution does is to create the institutions of government. Typically, that means an executive and a legislature. Madison famously resisted a bill of rights precisely because he doubted the power of parchment barriers to protect individuals; he preferred a system that limited powers. (12) Eliminate the courts in America and governance would be poorer. (13) But as other countries without strong judicial review have shown, that practice is hardly a requirement for a functioning democracy. (14) After all, the judiciary appears in Article III, not Article I, of our Constitution.
The truth is that many of the rights that Americans hold dear are rights created by legislatures, not courts. Legislated Rights' primary concern is not American constitutionalism, but the authors are correct to note some of the most obvious ways in which America's history belies the conventional view. I would go further and suggest that the American Congress--however much it stands in disrepute--has provided America's citizens the most important rights of the 20th century. I am certainly not the first to make such a claim. Historians and political scientists have been at the forefront of disabusing lawyers of the primacy of courts for some time. (15) To overcome resistance to the claim of "legislated rights," it seems fair to rehearse an exceedingly abbreviated history of the development of 20th century American rights--within the American legislature.
Rights and Work
Consider the history of workers' rights: the right to claim a settled number of work hours, decent working conditions, and a ban on child labor. At the turn of the 20th century in America, state legislatures were beginning to engage with such claims. They were met with judicial resistance at the state and federal levels. (16) Federal courts struck down state hours laws on the theory that they interfered with the right of employers to contract. (17) State legislatures continued to pursue these hours regulations for "exceptional" cases, such as the regulation of women's labor. (18) Meanwhile, the federal legislature worked to pass similar laws, again having a modicum of success for what was then considered special classes of workers in interstate transportation. As for regulating the conditions of the average manufacturing plant or the average child labor employer, the courts at the time resisted. (19) By the 1930s, the United States Supreme Court had adopted doctrines that cast constitutional doubts about state and federal legislation regulating...