Waldron, Jeremy. "A Rights-Based Critique of Constitutional Rights". Oxford Journal of Legal Studies, Vol.13, No.1 (1993): 18-51.

Waldron, Jeremy. "A Rights-Based Critique of Constitutional Rights". Oxford Journal of Legal Studies, Vol.13, No.1 (1993): 18-51.

• "There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient" (18).
• The United Kingdom is considering [in 1993] adopting a system of human rights protected by the legal system, empowering the courts to protect formally-defined rights in a system similar to that existing in the United States. Proponents argue that this would prevent the government from violating rights due to political convenience and ultimately serve to strength the role of human rights in British society (18-19).
• Even in cases where rights are articulated as constitutional legal protections, this is not necessarily the best form for them to take. For example, protections from illegal search and seizure do not accurately or completely capture the underlying logic of this statement: that humans deserve some degree of non-interference and privacy. Cementing rights as constitutional protections may fail to capture the full scope of actual rights (20-22).
• Jeremy Bentham claimed that rights, moral claims about what humans deserve, are only useful in so far as they relate to legal rights that someone possesses under an enforceable code of law. Abstract non-legal rights only existed as normative claims about what should be instituted as a legal right (23).
• One possible objection to this view is that moral rights can exist independent of legal rights, or exist without claiming that the law should reflect these rights. Morals should not necessarily be cemented into law (23-24).
• Even if it is assumed that all moral rights should translate into legal rights, those rights should not necessarily be granted constitutional protections above and beyond normal legal protection. Whereas regular laws can be changed to reflect changing understandings of rights in the public mind, constitutional provisions are extremely difficult to change, and the rights given in a constitution may fall out of alignment with public ideas of what those rights should be (26-27).
• "To embody a right in an entrenched constitutional document is [...] a combination of self-assurance and mistrust: self-assurance in the proponent's conviction that what she is putting forward really is a matter of fundamental right [...]; and mistrust, implicit in her view that any alternative conception that might be concocted by elected legislators next year or the year after is so likely to be wrong-headed or ill-motivated that her own formulation is to be elevated immediately beyond the reach of ordinary legislative revision" (27).
• This logic of mistrust of future politicians and voting publics does not accord with the essential beliefs in freedom and choice which underlie rights in the first place. Rights come from the ability of rational citizens to construct their own polity, and this right to self-determination should not be taken away by a constitutional shield (27-28).
• Two conceptions of rights exist, either the right held by citizens are so self-evident that alternative viewpoints must exist with ulterior motive to challenge the 'true' list of rights, or the process of creating a list is so difficult that reasonable and good people can disagree on the actual list of rights. Only the former conception of the epistemology of rights would wish to see those rights encoded in a constitution protecting them from alternative conceptions (28).
• The author asserts that in the contemporary world, no one believes that their conception of rights is the only correct one and that others are maliciously created. Instead disagreement is recognized as legitimate considering the difficult of the task of defining rights (29-30).
• A theory of justice does not necessarily replace theories of just authority -- those answers to the question: how should society be governed -- but the system of authority does matter in conditions were there are multiple competing theories of rights and justice (32, 34).
• This question is core to the issue of deciding the degree to which rights can supersede majoritarian decisions in democracies, since it raises the issue that there are multiple competing theories of rights, and if democracy is not used then there needs to be another system of authority to decide which system of rights is superseding democratic choice (32-33).
• There must also be considerations of the hierarchy of justice between theories of authority and theories of rights. It needs to be determined if a just authority trumps the 'just' decisions on certain rights, such as whether a democratic vote restricting certain rights should be considered acceptable because it has democracy or manifestly unjust because of the decision made about rights (33).
• In the conditions of legitimate disagreements between citizens about the nature of rights in society, the solution should be a greed-upon and just method of deciding which model of rights should be implemented. This means that rights should continue to be determined by regular authority -- in most cases majoritarian democracy -- rather than protect from the decisions of these just authorities by constitutions, which only serve to privilege the perspectives of one group over those of other (35-36).
• Denying the rights of citizens to participate in decisions concerning their polity, including those about what system of rights is just, violates the right of citizens to participation. Thus, protecting rights in unchanging constitutions is actually violates the right to full and equal participation (37).
• The core argument used in America to defend the protection of certain constitutional rights from direct democratic changes is the proceduralist argument. It asserts that because the process which decided that rights should be insulated from future democratic decisions was democratic, the limits it created are democracy on democratically legitimate (39).
• This argument is flawed because it attempts to justify limits on democracy by referencing democratic legitimacy. This assumes that the perspectives of the founders are more legitimate than those of contemporary citizens, meaning it cannot be justified democratically (39).
• It could be argued that the judicial system, rather than majoritarian democracy, should control the scope and system of rights used in democracy, but that is a different argument. In this case, it is being asserted that democracy is not the best system for deciding what system of rights should be used and it is being justified on non-democratic grounds (39-40).
• It could be argued that constitutions represent a form of preemptive self-governance, similar to a drinker commanding friends to not return their car keys when requested. However, this does not apply to societies because they are composed of multiple individuals who legitimate disagreements should still be taken into account. Moreover, it is not the same body politic constantly, but different people with different opinions who should not be limited by the past decisions of other deceased citizens (47-49).
• Most constitutions, including the American Bill of Rights, have provisions for modification and revision, but it is only allowed under extremely difficult conditions. This raises questions about the justifications behind constitutions: are they meant to be democratic or to resist the excesses of democracy. The power of judicial review in America empowers the court system far above representative democratic systems, making the rights-based system in America undemocratic (41-42).
• Courts need to have some power of interpretation to successfully enforce legal rights, since they have to determine whether current laws make certain acts legal or illegal. Making these courts the primary institutions interpreting unchangeable laws, however, is unnecessarily undemocratic (42-43).
• In the America case, it can be argued that review by the court system remains democratic because judges are elected at the local and state level and require approval by the Senate at the federal level. The federal court system, however, is not democratically accountable after election and does not have the same democratic authority or credentials as legislative decisions (43-44).
• The executive and legislative branches of government are also deeply flawed and only partially democratic, leading some to argue that this situation means that the judiciary is less absolutely undemocratic. This is a ridiculous argument asking failures in the current system to justify resorting to even less democratic methods just because they are not as absolutely worse as they should be. The judiciary is still less democratic relative to other institutions (44-45).
• Perhaps some of the best arguments against constitutions which are difficult to modify come from the limits of the American constitution, which for decades legalized discrimination against Blacks, women, and others. This cements the, often mistaken, conscience of the past and limits the power of present groups to govern themselves (50-51).
• There is overwhelming public support in Britain for the creation of constitutional rights, but that does not mean that a constitution is any more democratic as an institution. The decision to adopt a dictatorship may be made through a democratic vote, but that would not make the actual dictatorship any more democratic (46).