The Download of the Week is Limiting Constitutional Rights by Stephen A. Gardbaum. Here is the abstract:
The structure of constitutional rights in the United States and most other countries grants to legislatures a limited power to override rights when they conflict with certain public policy objectives. This limited override 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” congressional power claimed by some under Section 5 of the Fourteenth Amendment. Comparatively speaking, this power tends to be somewhat obscured in the United States by the absence of express limits on rights and, thus, a textually mandated two-stage process of rights adjudication.
In this Article, I first highlight the existence and nature of this limited override power and then present a normative justification of it and the general structure of rights that underlies it. This case needs to be made because it is not obvious or self-evident, to say the least, that constitutional rights should be overridable by legislatures in the face of conflicting public policy interests – even where supported by text and much less where not. In moving beyond description to defense, I also aim to respond to the highly influential, but largely unanswered, anti-balancing critique in constitutional law. Specifically, I offer a democratic justification for the modern structure of rights as “shields” rather than “trumps” – that, at least when certain substantive constitutional criteria are satisfied, rights should be overridable by legislatures for democratic reasons. My justification in turn has important consequences for how courts should go about their task of reviewing exercises of this legislative power.
My specification and defense of the limited legislative override power provides 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 to the existing model, one that does not challenge – indeed is entirely consistent with – the interpretive supremacy of the U.S. Supreme Court and other constitutional courts.
And here is a bit more from the text:
Although it is generally understood and widely repeated that “constitutional rights have limits,” the whole topic of limits on rights is strangely under-theorized in the United States. This is especially surprising given the time that courts spend on, and (as Grutter illustrates) the controversies surrounding, the part of rights adjudication in which many of the limits come into play.
An important part of the explanation for this neglect stems from the wellknown fact that, with only very few exceptions, all limits on constitutional rights are implied in the United States. As a result, the topic is denied the status of an independent and distinct subject in constitutional law and is, at best, subsumed within the general field of constitutional interpretation, of which limits are one product among many. This contrasts with most modern constitutions around the world, which contain express limits on certain of the rights that they bestow. They typically do so via “general” or “specific limitations clauses”: either a single express statement of the limits that apply to all constitutional rights, or different customized express limits that attach to specific rights.
Highly recommended!