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Who is Afraid of the Total Constitution?


But a Schmittian vocabulary, which still tends to find resonance among constitutional lawyers today, should not bias the assessment of such an expansive conception of constitutional rights. When the government acts in a way that detrimentally affects the interests of an individual, it is not outrageous to require that those acts be justifiable in terms that take that individual seriously. The language of constitutional rights provides the vocabulary to assess whether that burden of justification can be met in a particular case. All you need in order to make a rights claim is an interest that is sufficient to establish a duty in public institutions to take account of it.65 Constitutional rights and their judicial review serve to institutionalize the idea that the legitimacy of a political or legal decision depends in part on whether it can reasonably be understood as a good faith effort to take into account and give respect to the interests of all, including those being burdened by the decision. The FCC, applying a conception of rights as principles that Alexy describes helps assess whether the commitment to take individuals seriously was honored by public institutions in a particular case.

There is nothing new in understanding rights in this expansive way. In the French revolutionary tradition rights were understood in just this way. The French Declaration of the Rights of Man establishes that everyone has an equal right to liberty. The task of the political process in a true republic was to delimitate the respective spheres of liberty between individuals in a way that takes them seriously as equals and does so in a way that best furthers the general interest. In this respect there is no difference between private law and public law. Courts, of course, had no role to play whatsoever in the exercise of determining the specific content of what it means to be free and equal in specific circumstances. Courts, discredited as part of the ancien regime – the noblesse de robe – were to function as the mouthpiece of the law as enacted by the legislature and nothing more. Even today, France is something of an outlier in the institutions it chooses to protect rights. In France, the Conseil Constitutionnel, an institution that engages in rights analysis not very different from that described above,66 is not referred to as a court. Though it is a veto player in that it can preclude legislation from entering into force by holding it to be in violation of rights, it remains a “council” to the legislature and individuals may not bring cases before it.

This understanding of the purpose of rights is very similar to that proposed by J. RAZ, THE MORALITY OF FREEDOM 180-92 (1986). 65

The reasons published by the Conseil Constitutionnel are, however, famously cryptic. For a discussion of this phenomenon see MITCH LASSER, JUDICIAL DELIBERATIONS: A COMPARATIVE ANALYSIS OF TRANSPARENCY AND LEGITIMACY 25-35 (2004). 66

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