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Who is Afraid of the Total Constitution?


There are three characteristic features of rights reasoning as practiced by the FCC. First, practically any action taken by the state is open to challenge on constitutional grounds. Any such action will distinguish between persons in some respect, therefore raising equality concerns. And most actions are likely to infringe on someone’s liberty interest. Second, even though constitutional rights are practically always in play when the state acts, they do not function as trumps in any meaningful sense. More specifically, the fact that a rights holder has a prima facie right does not imply that he holds a position that gives him any kind of priority over countervailing considerations of policy. An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified. But the fact that rights are not trumps in this sense does not mean that they provide no effective protection. Even without such priority, constitutional practice in Germany clearly illustrates how rights are formidable weapons. The third characteristic feature of rights reasoning is the flip side of the second. Since comparatively little is decided by acknowledging that a measure infringes a right, the focus of rights adjudication is generally on the reasons that justify the infringement. Furthermore, the four-prong structure of proportionality analysis provides little more than a structure that functions as a checklist for the individually necessary and collectively sufficient conditions that determine whether the reasons that can be marshaled to justify an infringement of a right are good reasons under the circumstances. Assessing the justification for rights infringements is, at least in the many cases where the Constitution provides no specific further guidance, largely an exercise of general practical reasoning without many of the constraining features that otherwise characterizes legal reasoning. Rights reasoning under this model, then, shares important structural features with rational policy assessment.20

II. From negative rights to positive rights: The idea of protective duties

The discussion so far has focused on constitutional rights in their classic liberal understanding as defensive rights against the state. An important question is whether and to what extent constitutional rights also establish rights to positive state action. In terms of text and legislative history, the Basic Law is primarily

That does not mean that the two are identical. There are at least four differences between substantive rights analysis and general policy assessments. First, courts are not faced with generating and evaluating competing policy proposals, but merely with assessing whether the choices made by other institutional actors are justified. Second, they only assess the merit of these policy decisions in so far they affect the scope of a right. Third, specific constitutional rules concerning limits to constitutional rights or judicial precedence establishing rules that fix conditional relations of preference frequently exist. Fourth, proportionality analysis leaves space for deference to be accorded to other institutional actors. The ECHR refers to this as the “margin of appreciation.” 20

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