Constitutional rights as principles: On the structure and domain of constitutional justice. A review essay on A Theory of Constitutional Rights

Abstract

Three features of constitutional rights adjudication distinguish it from ordinary judicial practice and place it at the center of legal and political battles as well as scholarly debate. First, constitutional rights provisions tend to be comparatively indeterminate. Constitutional textual references are likely to include general invocations of liberty, equal- ity, due process, freedom of speech, and the like. This leaves them more open to judicial interpretation than most statutes, administrative regulations or ordinances. Second, con- stitutional provisions generally occupy the highest position in the hier-archy of norms within a domestic legal system. Institutionally this means that courts in the position of the final arbiter of constitutional claims cannot be overruled by the ordinary legislative process. Only a constitutional amendment or its own subsequent decision can overrule the decision made by a constitutional court. Third, constitutional rights claims often raise issues that are politically highly controversial. Taken together, these three features of con- stitutional rights adjudication establish courts as significant political actors in their own right. Making claims based on constitutional rights and litigating them can be a viable strategy for losers in the political process seeking to turn their loss into a judicially endorsed victory. Given the relative immunization of judges from the electoral political process, attention is justly focused on what exactly it is that judges are and ought to be doing