Justification and Rights Limitations

EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY, Grant Huscroft, ed., Cambridge University Press, 2008

31 Pages Posted: 18 Jan 2008

See all articles by Bradley W. Miller

Bradley W. Miller

University of Western Ontario - Faculty of Law; James Madison Program in American Ideals and Institutions, Princeton University

Abstract

A common feature of contemporary bills of rights is the inclusion of limitations clauses. In turn, limitations clauses tend to give rise to adjudicative structures that (at least formally) sever (1) the question of whether a right has been infringed, from (2) the determination of whether a limitation or infringement of the right may nevertheless be justified. Bills of rights drafted in such a way are often thought of as an advance over bills of rights in which reasonable limits are inherent in the conception of the constitutional rights themselves. In this paper I argue the contrary; there is no justification for the two-stage division.

The most influential theoretical support for the two-stage division between definition and justification is provided by Ronald Dworkin's distinction between policy and principle: definition of rights should be understood as a matter of principle, while limitations on rights should be understood as matters of majoritarian preference, of policy. Although influential, Dworkin's distinction is vulnerable to some well-known objections and, in particular, rests on a fundamental misunderstanding of the nature of the considerations that ought to justify limitations on rights.

I argue that courts that employ the two-stage division exaggerate the reasons for action generated by a first stage finding of a right infringement, and systematically devalue the reasons generated by the public good. Of course it is possible to overcome the problems inherent in the model by diligent attention to the reasons offered in support of impugned legislation and the manner in which that legislation might serve the common good. I consider some recent decisions of the Supreme Court of Canada interpreting the Canadian Charter of Rights and Freedoms, as examples of both the common errors and their remedy.

Keywords: constitutions, bills of rights, limitations clauses, limitations on rights, principle, policy, Ronald Dworkin

JEL Classification: K00, K1, K10

Suggested Citation

Miller, Bradley W., Justification and Rights Limitations. Available at SSRN: https://ssrn.com/abstract=1084468

Bradley W. Miller (Contact Author)

University of Western Ontario - Faculty of Law ( email )

London, Ontario N6A 3K7 N6A 3K7
Canada
519.661.2111 (80038) (Phone)
519.661.3790 (Fax)

James Madison Program in American Ideals and Institutions, Princeton University ( email )

Bobst Hall
83 Prospect Avenue
Princeton, NJ 08540
United States

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