Adjudicating Rights-Based Constitutional Claims: The Morality of Human Rights and the Power of Judicial Review
28 Pages Posted: 14 Feb 2014 Last revised: 9 Mar 2016
Date Written: February 12, 2014
[This piece has been superseded by Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.]
I have recently argued, in my new book and elsewhere, that both capital punishment and excluding same-sex couples from civil marriage violate the constitutional law of the United States. See Perry, Human Rights in the Constitutional Law of the United States (Cambridge University Press, 2013). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage — or of any other law or public policy — necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on — my arguments about capital punishment and same-sex marriage? I address that question in this paper.
This paper began partly as a reflection on Mark Tushnet’s distinction between what he calls “pseudo-Thayerian review” and “true Thayerian review.” According to Tushnet, “[p]seudo-Thayerian review occurs when the courts ask, ‘Did the legislature make a clear error in determining — if it did — that the legislation was consistent with the Constitution as we interpret it?’ In this version, the courts make an independent judgment about what the Constitution means, and then ask whether a rational legislature could believe that the statute at issue was consistent with the Constitution so interpreted. In pseudo-Thayerian review, that is, the courts have the final (or only) say on what the Constitution means. True Thayerian review, in contrast, give the (rational) legislature a role in constitutional interpretation. The truly Thayerian court asks, ‘Putting aside our own views about what the Constitution means, could a rational legislature believe that the statute in question is consistent with some reasonable interpretation of the Constitution — again, even if that interpretation is not one that we ourselves would adopt?’” Tushnet’s distinction between “pseudo-Thayerian review” and “true Thayerian review” is too simple to do justice to the complex question of judicial deference. Or so, at least, I contend in this paper.
As the title of this paper indicates, my principal concern here is the adjudication of constitutional claims based on rights norms, as distinct from the adjudication of constitutional claims based on structural norms — based, that is, on either federalism norms or separation-of-powers norms.
I have recently posted two related papers to SSRN: Why Capital Punishment Violates the Constitutional Law of the United States (2013), http://ssrn.com/abstract=2340682; David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States (2014), http://ssrn.com/abstract=2352516.
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