Stephanie H. Barclay (Georgetown University Law Center) has posted Constructing Constitutional Rights (138 Harv. L. Rev. F. 140) (42 pages) on SSRN. Here is the abstract:
In his important article Determining Rights, Professor Jud Campbell correctly observes that "[t]wo central problems in rights jurisprudence are figuring out who should make" "specifications" about what a right "demands in particular situations" and "how to make them." Campbell makes two central claims: (1) that "the Bill of Rights was mostly designed to declare the existence of natural or customary rights," rather than give new legal content to rights; and (2) that this document was not designed "to delegate a determination power to judges." Regarding this second claim, unless a right "had textually determined content" in the Constitution or already had content sufficiently "determined . . . by common law," "the Bill of Rights left room for ongoing political determinations — that is, determinations largely made on policy grounds by popularly elected representatives." In other words, the Framers' act of "enumerating rights in the Constitution" did not alone make "those rights judicially enforceable" if those rights lacked sufficient textual specificity or common law determinacy.
Campbell's first claim is supported by extensive historical evidence and advances our understanding of how textual safeguards in bills of rights operated as placeholders for deeper meaning. But in Part I of this Response, I argue that Campbell's second claim is based partly on an anachronistic understanding of "determination" as a natural law principle and fails to adequately consider constitutional construction—a process unfolding during the Founding period. Constitutional Framers debated how to give legal effect to their grand experiment of holding out the people as sovereign while placing meaningful constitutional limits on government. Judicial enforcement of declaratory constitutional rights was one option advocated by various Framers, even when application of those rights to particular contexts was somewhat indeterminate. In other words, the issue of which branches of government should be responsible for enforcing rights, and how, was simply less theorized and settled as a historical matter than Campbell suggests.
Still, how should the judiciary enforce enumerated rights that, Campbell argues, were not designed to "fully fix[] the content of those rights in perpetuity" or to "operate as categorical 'trumps' against governmental power"? How should judges enforce constitutional rights designed to leave "room for ongoing political determinations"? Campbell's important intellectual history does not "tell us where to go" on this pressing question.
Part II evaluates three options for implementing constitutional rights: rights as unfinished liberties requiring judicial interest balancing, rights whose scopes are fixed by historical analogues of Founding-era regulations and act as constitutional trumps, and rights as protected reasons. The third alternative, which I have written about elsewhere theoretically, might be the method of constitutional construction that most faithfully enforces rights consistent with the Framers' goals in memorializing natural and customary rights.
Posted at 6:01 AM