Limiting Constitutional Rights
66 Pages Posted: 15 Mar 2007 Last revised: 1 Sep 2015
Date Written: 2007
The structure of constitutional rights in the United States and most other liberal democracies grants to legislatures a limited power to override constitutional rights. This limited power contrasts with an absolute one, as enshrined in section 33 of the Canadian Charter of Rights and Freedoms, and is also both general and non-interpretive in nature, unlike the substantive view of Congress's power under Section 5 of the Fourteenth Amendment. This override power tends to be obscured in the United States by the unique absence of express limits on rights and, thus, a textually mandated two stage process of rights adjudication. Indeed, this absence also helps to explain why the whole topic of limits on rights is strangely under-theorized in the United States.
In this Article, I first highlight the existence and nature of the limited legislative power to override constitutional rights in the United States and elsewhere. I then present a normative justification of this power and the modern structure of rights as presumptive shields rather than peremptory trumps that underlies it. This case needs to be made because it is not obvious or self-evident that constitutional rights should be overridable by legislatures in the face of their conflicting public policy objectives. In presenting this case, I also aim to respond to the highly influential, but largely unanswered, antibalancing critique in constitutional law. Specifically, I offer a democratic justification -- that, at least when certain constitutional criteria are satisfied, legislatures should be empowered to promote public policies that conflict with entrenched rights for democratic reasons. My justification in turn has important consequences for how courts should go about their task of reviewing exercises of this power.
My specification and defense of the limited legislative override power also provide fresh perspective on two other vigorous debates in contemporary constitutional theory. First, both opponents and proponents of judicial review have overlooked the important role that this near-universal power plays in rendering modern systems of judicial review less vulnerable to democratic critiques. Second, this power represents an alternative form of popular constitutionalism that does not challenge - indeed is entirely consistent with -- the interpretive supremacy of the U.S. Supreme Court and other constitutional courts.
Keywords: Constitutional rights, judicial review, comparative constitutional law, limits on rights, legislative override, balancing, proportionality
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