Constitutionalism and the Reality of Rights

Abstract

For lawyers and legal scholars, constitutionalism means constitutional law and rights. Familiar stories about constitutionalism, constitutional law and constitutional rights center on the balance between democracy" in the form of majoritarian political processes" and the protection of the individual" in the form of constitutional rights. These rights are often broadly defined and accompanied by lofty rhetoric. But this story is based on notions of the behavior and character of institutions, such as courts and political processes, that are both unsophisticated and unrealistic.

As relevant populations have grown in size and as social interaction and social issues have grown more complex, the reality of societal decision-making institutions has out-grown the conventional conceptions of political processes and courts and the rhetoric of rights. Significant growth in the complexity of the decisions facing societal institutions and in the number of people affected by these decisions spawns shallow and fluctuating rights. This is not a characterization limited to fledgling democracies and third-world nations. US and Europe are included.

There are essential lessons here for constitutional scholars. We can no longer afford simple stories of constitutionalism and constitutional rights. In particular, we must jettison as useless the grandiose notions of rights that infect common constitutional scholarship and examine the true character of rights and judicial review in the constitutional order. Real rights and real judicial review can play an important even crucial role in some contexts at some times. But real rights and review are strange and scarce. They are resources to be used carefully.

Keywords: decision-making, constitutional law, judicial review, rights, institutional choice, comparative institutional analysis, constitutional theory, European Union, EU, political malfunction, judicial resources, fundamental rights, minoritarian bias, majoritarian bias, Europe, constitution-making, numbers

JEL Classification: H1