martedì 10 settembre 2013

Structural Constitutional Principles and Rights Reconciliation


Robert R. Gasaway 


Kirkland & Ellis LLP

Ashley C. Parrish 


King & Spalding LLP

2009

Citizenship in America and Europe: Beyond the Nation-State? (Michael S. Greve and Michael Zoller, eds. 2009) 

Abstract:      
This paper is about contrasting approaches to constitutional rights. We contend that the American Constitution achieves an often underappreciated reconciliation both among individual rights and between individual rights and representative democracy — a reconciliation rooted in structural principles that emerge, on one hand, from the Constitution’s pattern of rights inclusion and omission, and, on the other, from canonical statements of the Constitution’s larger purposes. Our sense is that modern Europeans have largely embraced an alternative, rights-proliferating approach to individual rights — more rights are better. That approach inevitably triggers the sort of conflict among rights, and between rights and democracy, that the American Constitution properly seeks to avoid.

We hope to make two contributions to the transatlantic discussion. First, we hope to dispel a possible misconception among Europeans. Europeans appreciate that our Constitution declines to recognize many rights proposed for inclusion in the ultimate arrangements for future Europe. They appreciate that rights can conflict and that more rights can lead to more conflict. Their possible misconception, we believe, is a too-ready assumption that conflicts between democratic rights and other rights are inevitable and that differences between rights-scarce and rights-laden constitutions reduce to matters of degree. We argue, in contrast, that the structural principles of the American Constitution help to avoid such conflicts altogether by recognizing only those rights that can achieve a large degree of peaceful coexistence.

Second, we cast onto the American side a good share of blame for what we perceive as European misconceptions. “Originalism,” the dominant American school of constitutional interpretation, threatens to shortchange the Constitution’s structural principles — principles that are essential for explaining to non-Americans and nonspecialists the Constitution’s reconciliation of rights. We therefore aim to go beyond the received practices of academic originalism, elevate the interpretive stature of structural principles, and show how structural principles are rooted in the four corners of the Constitution and other legitimate, objective sources of constitutional meaning.

We conclude with a soft (but important) suggestion that the American Constitution has endured precisely because it avoids specifying a long, conflicting roster of individual rights and, instead, safeguards each generation’s ability to debate and decide the pressing issues of the day. The structural principles we identify confine our Constitution to a less comprehensive role than that filled by constitutions in other nations. But they ensure that constitutional rights are for the most part reconciled; that democratic outcomes are perceived as fair and reasonable; and that citizens enjoy the right not to have substantive constitutional law, etched in stone, governing their everyday lives.

We begin with a brief description of the current constitutional landscape in Europe and America. Europe’s tendency is to insulate citizens from vagaries of democracy by cataloguing a vast array of individual rights. This approach, we contend, threatens to compromise democratic self-government by empowering legal elites to determine how myriad rights are reconciled, prioritized, and enforced. In contrast, the most prominent approach to interpreting the American Constitution — originalism — is a useful balm for rights-proliferation syndrome. In its purest, most “academic” form, however, originalism threatens to truncate the quest for objective constitutional meaning and to obscure America’s most profound constitutional achievements.

Number of Pages in PDF File: 29
Keywords: transatlantic, constitutional rights, rights, originalism, constitutional interpretation, representative democracy, structural principles, academic originalism, American constitutionalism, Europe

Nessun commento:

Posta un commento