Academic journal article Faulkner Law Review

Legislated Rights: From Magna Carta to Montgomery March

Academic journal article Faulkner Law Review

Legislated Rights: From Magna Carta to Montgomery March

Article excerpt

I. Introduction

By inviting us to frame our reflections on rights in the context of two end points--Magna Carta and the Montgomery March--the conference organizers have suggested a thesis that is subtly subversive of the dominant way of thinking about rights in contemporary legal theory and practice. Consider: Magna Carta is a set of positive legal propositions, chosen by those in authority in a particular political community--England--to specify the natural rights and obligations of persons in that community. The Montgomery March was a demand for a new political settlement to be enacted into positive law, a settlement that better instantiated natural law and natural rights. It was a demand that would be addressed through the Voting Rights Act of 19651 and other legislative initiatives.

Both of these paradigm examples are instances of mobilizations that resulted in societal changes ultimately formalized and consolidated through law. Significantly, in these two examples, the consolidation was not only through law, but specifically through one type of law--legislation. What the selection of these two paradigm examples suggest, and what I want to explore, is this: that the long unfolding story of human rights in the English-speaking world is largely a story about reasoned deliberation about the best way to frame life lived together in community. It is focally a story about deliberation that culminates in legislation.

This is of course contrary to the dominant narrative of human rights in contemporary democracies. The dominant narrative has that individual rights trump legislation, and that courts are the guardians of those rights. (2) Far from protecting or promoting rights, legislatures, on this conception, are structured towards injustice, and must be supervised, admonished, and corrected by courts. The touchstone is Brown v. Board of Education. (3) The central player is the judiciary. This court-centred way of thinking about rights--and about political and legal institutions--is not purely, or even predominantly, an American phenomenon. It is now common to most of the western democracies. It is evident, for example, in the jurisprudence of all of the countries that Professor Stephen Gardbaum of the University of California, Los Angeles (U.C.L.A.) describes as following the New Commonwealth Model of constitutionalism (countries like Canada, New Zealand, and the United Kingdom (U.K.)), and as well as the signatories to the European Convention on Human Rights. (4)

I want to sketch another way of thinking about constitutional rights, one in which legislatures are full partners with courts and other government institutions in protecting and promoting rights. My plan is to describe the dominant model of rights, before introducing a reappraisal of the nature of constitutional law, legislation, and judicial review. (5)


Before moving on to present the legislated rights model, I will set out in greater detail the dominant model of rights and courts that I am criticizing.

There are two basic ideas here: first, is that legislatures should be understood as an institution that aggregates preferences. Thus, the legislature is understood as a kind of voting machine: it is structured towards producing legislation that favours the interests of the majority, and is at the expense of minority groups at least some of the time. We should not, therefore, expect legislatures to act for the common good or in ways that respond to the needs of persons who are outside of the narrow interests of the majority party. At best, legislative majorities will ignore the interests of the relatively powerless, and at worst will actively exploit them. As an example, take national security, legislatures can be expected to pursue policies that will protect national security by intentionally infringing upon the rights of disfavoured groups. …

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