54 Pages Posted: 11 Mar 2016 Last revised: 17 Apr 2017
Date Written: April 15, 2017
Constitutional theory commonly casts individual-rights provisions and structural provisions as conceptual opposites. Conventional wisdom suggests that structural provisions establish and empower government institutions, and rights provisions protect individual freedoms. Although scholars have long explored how government structure can affect individual liberty, its mirror image has been neglected. Scholars have largely assumed that individual rights have little resemblance to constitutional structure. The result is an imbalanced discourse that misses the structural implications of individual-rights provisions and their consequences for constitutional theory.
This Article fills a scholarly gap by identifying and elucidating structural rights, which straddle the right-structure dichotomy and complicate contemporary constitutional theory. Although rights are commonly assumed to restrict government institutions, this Article argues that rights can generate and distribute power, similar to structural provisions. Specifically, the Article analyzes how rights can aggrandize legislative and executive power, expand judicial review, give rise to complementary political institutions, and promote or facilitate the democratic political empowerment of the citizenry. In so doing, the Article probes the place of rights in constitutional theory and challenges the standard narrative of rights as restrictions on government power.
This descriptive theoretical account suggests several normative conclusions that go against the grain of prevailing constitutional theory. First, individual rights with structural consequences are far more important and the label attached to constitutional provisions far less material than assumed. By pigeonholing provisions into “structure” and “rights” categories, constitutional theory misses opportunities to examine how they fit into a coherent, harmonious whole. Second, this analysis also has important consequences for judicial doctrine, which erroneously attaches undue significance to the rights-structure distinction. Finally, the Article’s descriptive account challenges the Madisonian skepticism of individual rights. A long line of constitutional thinkers dating back to James Madison have dismissed individual rights as parchment barriers and argued that structural provisions are self-reinforcing in a way that individual-rights provisions are not. In showing how individual rights can exhibit structure-like characteristics, the Article suggests that the inefficacy of individual rights has been greatly exaggerated and explains why structural rights can achieve some level of stability and self-reinforcement.
Keywords: Constitutional Law, Comparative Constitutional Law, Constitutional Theory, Constitutional Rights, Individual Rights, Constitutional Structure, James Madison, Parchment Barriers
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