Avihay Dorfman (Tel Aviv University – Buchmann Faculty of Law) & Alon Harel (Hebrew University of Jerusalem – Faculty of Law) have posted Institutional Pluralism: Speaking in a Different Voice on SSRN. Here is the abstract:
Some of the most consequential cases in recent history—Obergeffel v. Hodges and Dobbs v. Jackson Women’s Health Organization, to name such two—assume that there is one right, say, to same-sex marriage or to abortion and that, therefore, the only live question is which institutional agent should be in charge of entrenching it: The Court or state legislatures. On this assumption, a constitutional and a state-statutory right to same-sex marriage or to abortion is one and the same right. The choice between the two reflects a trade-off between several institutional considerations, of which two claim prominence: democratic legitimacy and the prospects of changing the right. A statutory right enjoys democratic legitimacy because it grows out of a rigorous process of will formation and, ultimately, wins the support of the majority. By contrast, a constitutional right (as construed by the Court) is typically harder to change, let alone abolish.
It is this widely held assumption that we challenge in this Essay. We argue that there is not a single good whose institutional provider can be either the legislature or the court (deciding the matter on constitutional grounds). Rather, the choice between these two institutions reflects a choice between two fundamentally different goods: a constitutional right and a statutory right. A constitutional protection of a basic right differs from a statutory norm not because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. The underlying distinction we draw here is between owing you respect (independently of your will) and choosing voluntarily to owe you so. We further extend this argument to discuss its doctrinal implications. One such extension concerns the law of remedies. We defend a new kind of remedy: institutional remedies. Essentially, we argue that a plaintiff might suffer a legally cognizable injury—a dignitarian injury—when the institutional entrenchment of her right, say, in a statute as opposed to the constitution, is inadequate. To make good on this injury, the remedy should declare that the right at issue (say, to marry) is not merely a statutory one, but rather that it has a constitutional status. We further extend this argument to other areas of law, especially the common law tradition of judge-made law.
Highly recommended.