Protecting fundamental rights and liberties should be paramount to states, but there is debate as to whether this is the role of a constitution. I will first put forward arguments to contend that constitutional protection of human rights is desirable. I will analyse each of these arguments. Following this, I will discuss arguments against the constitutional protection of human rights and analyse the effect of constitutionalising the protection of positive rights. I will come to the conclusion that the constitutional protection of human rights is desirable, but this is not without qualifications. The balance of powers must be appropriate, authorities must be held to account where rights are violated.
Arguments that Constitutional Protection of Human Rights is Desirable
Achievement of Democracy
Standardising a system which exercises the will of the people is a key role of a constitution (Frankel Paul, Miller, Paul 2011). Democracy aims to reflect popular sovereignty. Therefore, any mechanism which advances or realises the achievement of democracy must be desirable in a constitution. In this section I will explain the argument that human rights protection strengthens democracy and then follow this with critical analysis of this argument.
Habermas’ Theory of Co-originality
Habermas’ co-originality theory suggests that human rights and democracy are intertwined and pre-suppose one another (Habermas, Rehg 2001).
Habermas poses the question: ‘Which comes first? The individual liberties of the members of the modern market society or the rights of democratic citizens to political participation?’
Habermas argues that if persons are to partake in political process and exercise their popular sovereignty, they must also be granted rights which allow reasonable and rational communication (Habermas 2011). Habermas argues that other rights, non-political rights, are also conferred to individuals when they agree to partake in democracy. Individuals settling to be governed by a system of ‘law’ imposes these rights. These rights are not possessed prior to politics, they are granted when individuals settle to standardise matters via democratic, positive law. Following this, if human rights are not certain, democracy cannot be achieved.
Habermas’ co-originality theory supports the notion that human rights are desirable to embed within a constitution. Without rights such as freedom of speech or guaranteed equality, individuals cannot create a system of true and fair popular sovereignty. Therefore, it is important for a constitution to embed these values so that democracy may be upheld.
Favouring Constitutional Human Rights over International Human Rights Instruments
International human rights instruments often have substantive schemes of rights but are almost always more difficult to amend and change than domestic constitutions. Schafer argues that international judicial institutions have an increasingly important role in interpreting rights treaties (Schaffer 2015). This means that these members of the judiciary shape the rights citizens enjoy but are further removed from democratic regulation than a constitutional court. This provides an argument for the constitutional protection of human rights. Including human rights within a constitution may provide democratic legitimation of the rights a citizen enjoys.
Most states are subject to international human rights obligations. If these international obligations are far removed popular sovereignty, and the judicial interpretation of these instruments suffers from a lack of democratic legitimation, then it may be beneficial to include human rights within a constitution. Including rights within a constitution would strengthen democracy; rights may be created and challenged in a process which is more democratic than the scope of international instruments. The core argument here is that rights must be protected on a domestic, constitutional level as the international process of rights protection is not born from popular sovereignty. Further, if the polity wish to amend or rid of an individual right, this is much easier to accomplish on a domestic level rather than an international level. Constitutionalising human rights may strengthen democracy as it allows the public to have control over their rights, rather than international instruments which are difficult to amend or leave.
Greater Protection of Individual Rights and Liberties
The natural question which arises when discussing the desirability of constitutional rights is: do constitutional rights work? This is a question of whether constitutionalising human rights actually provides greater protection of basic rights in practice, and whether this protection would be better found elsewhere.
In theory, constitutional rights have the capability to protect minorities which are consistently marginalised or underrepresented (Schauer 1993). Constitutional rights act as a shield to those who are marginalised and not represented in the policy-making process.
Benjamin Franklin allegedly claimed: “[a] democracy is two wolves and a small lamb voting on what to have for dinner. Freedom under a constitutional republic is a well-armed lamb contesting the vote” (Versteeg, Chilton 2020).
The logic here is that constitutional rights arm the lamb. Those who are marginalised or oppressed are shielded from the potential abuse of those who hold power when their rights are enshrined constitutionally. In theory, constitutional protection of human rights can allow those who lack authority to ensure that they are treated equally and their basic rights are respected. Charles Epp’s study of ‘rights revolutions’ illustrated that constitutional rights may become symbolic for social movements or act as a foundation for judicial decisions (Epp 1998). Following Epp’s argument, constitutional rights may encourage actual social and legal change which offers protection to individuals. In theory, this logic seems sound. However, one may contend that constitutional rights form a weak protection of rights.
Kathleen Pritchard conducted an investigation into the inclusion of human rights in constitutions and concluded that ‘greater acknowledgement of rights in constitutions resulted in lower actual enjoyment of those rights’ (Pritchard1986). However, Pritchard’s study was conducted nearly four decades ago, and did not consider the relationship between constitutional rights and actual rights practices over an extended period of time. Therefore, the confidence that one may employ in these findings is limited. Despite this, an analysis of several studies into the disparity between actual rights protection and constitutional rights highlights the general trend that more constitutional rights protection does not equate to more human rights in practice (Minkler, Prakash 2017). If this conclusion is reasonable, it is difficult to argue that the embedding of human rights within constitutions is desirable. If the presence of constitutional rights has little or a negative effect on the actual rights of individuals then these rights do not work as they are intended to. I contend that the mere appearance of human rights within a constitution is not sufficient to actually protect individual citizens. This argument can be resolved by examining the practicality of constitutional rights. It is my argument that human rights are desirable within a constitution only when they are accompanied by practical enforcement mechanisms. For most states, this may take the form of judicial review or checks and balances from other branches of power. It may also be desirable for an individual state to have external bodies to conduct regular investigations into the practical effect of constitutional rights.
Arguments that Constitutional Protection of Human Rights is Not Desirable
Diminishing Democracy
A key argument against protecting human rights in constitutions revolves around democracy. It has already been established that some scholars believe that protection of certain rights is necessary for democracy to exist. Others argue that the inclusion of constitutional rights may weaken democracy (Möller 2014). The principle of democracy seeks to follow the will of the people. This is true no matter what the will of the public is; the people are sovereign in a democracy. The inclusion of entrenched human rights may prevent the polity from exercising the constitution in their preferred way. This means that exercise of a constitution strays from the will of the people, which diminishes democracy. Human rights as a universal concept can, and do, clash with popular sovereignty. An example of this is the striking down of parliamentary statute by the South African Constitutional Court. South Africa has a prominent bill of rights contained within its Constitution. In 2021, the Court struck down an Act of Parliament on the basis that the legislation fails to provide adequate safeguards to ‘protect the right to privacy’.
One may argue that bestowing this power on the unelected judiciary is contrary to the principle of democracy. An Act passed through an elected parliament was struck down by unelected judges on the basis of constitutional rights. The actions of the elected parliament were prevented by the unelected judiciary. As societies evolve and change, their values will inevitably do the same. A constitutional bill of rights demands that the values of the polity do not change and diminishes the democratic power of the public to have a say in the legislation which comes into force. Therefore, this demonstrates why human rights protection is not desirable in constitutions. The nature of constitutional rights prevents authorities from acting on the will of the people. The power awarded to the judiciary may also be argued to be undemocratic. Many constitutional courts have the power to strike down legislation on a rights basis, meaning the judiciary are potentially preventing the will of the people.
Although this logic is sound, I have trouble finding the argument to be compelling. Constitutional rights do mean that legislation is able to be struck down on the basis of these rights, but this is part of their design. Constitutional rights act as a safeguard to ensure that there is no abuse of power awarded by election, and that individuals are protected. I am drawn again to Habermas’ theory of co-originality. This theory undoubtedly has flaws in terms of practical application, but the central tenant of interdependence between individual rights and democracy is persuasive. Democracy cannot exist without certain freedoms to create it. Human rights pre-suppose sound democracy. The South African Constitution states: ‘It [the bill of rights] affirms the democratic values of human dignity, equality and freedom’. These values are key to the exercise of democracy. In order for the will of the people to be recognised, all must be equal and dignified. Power of judicial review must be awarded when considering any aspect of a constitution. I submit that allowing the judiciary to conduct checks and balances on the respect for individual rights held by other branches of power is not an excess of power. It is a necessary process in order to ensure there is no abuse of rights.
The Impact of Positive Rights within a Constitution
The European Court of Human Rights described positive obligations as ‘obligations to do something’. Positive rights require state action rather than state passivity: authorities must actively protect these rights and not just refrain from violating them. The desirability of positive rights within a constitution is different to that of negative rights, positive rights imply accountability for omissions to act as well as active violations of a right. Therefore, some who are in favour of rights within a constitution are not in favour of positive rights appearing in a constitution.
Those who are not in favour of positive rights may base their theory in a deontological view of ethics, that constraints should exist which erect ‘moral barriers to the promotion of the good’ (Kagan 1997). From here, it is interpreted that only actions, not omissions, have moral worth (Dandes 1990). As such, it is not appropriate to impose positive obligations upon authorities as this is not how morality ought to be judged. Another theory which is drawn upon when arguing against the inclusion of positive rights in a constitution is that of consequentialism. At their core, these ideas value the maximisation of happiness and welfare (Sumner 1996). A consequentialist view judges the correctness of actions by their effects, not by the intent. This theory was utilised in the U.S. case of DeShaney. The U.S. Supreme Court held that authorities are only constitutionally liable when their active conduct makes the victim worse off. It was held that the authorities’ actions had not caused the individual harm. The intent was irrelevant to the majority, there was no consideration of deliberate indifference or neglect. Including positive rights within a constitution imposes stricter obligations on authorities. It is my submission that intent should have been considered by the Court in DeShaney. This would have potentially provided better protection to the individual and would have held the authorities accountable for deliberate indifference. Another issue with the inclusion of positive rights in a constitution is the wide scope awarded to the judiciary. This is also an issue when considering the inclusion of negative rights, but the nature of positive rights mean that judicial interpretation may have a larger practical impact. Legal interpretation may read positive rights into a constitution where their existence is ambiguous (Klatt 2015). The judiciary may be awarded the power to decide whether a specific right is positive in nature. This was the case in Brazil, where it was undecided for an extended period of time whether the socioeconomic norms in the Brazilian Constitution of 1988 were positive rights or mere norms. Eventually, this debate was ended with a number of major decisions on the right to health, but not before a decade of dispute. This examples how the presence of positive rights in a constitution can lead to diminished democracy. The unelected judiciary are able to interpret whether a right is a constitutional norm or a positive obligation for the elected authorities to follow. This, however, seems to be an issue of an ambiguous text and not excessive judicial interpretation. As argued earlier, power of judicial review is a necessary safeguard against abuse of individual rights.
It is my submission that positive rights may be desirable in a constitution as they provide a greater protection to individuals and require authorities to account for their omissions to act. I contend that constitutional text should be clear and transparent as to which rights impose a positive obligation, as to not award excessive power to the judiciary in this decision.
Conclusion
To conclude, I have assessed and analysed various arguments in favour of and against including human rights within a constitution. I have explained the difference between negative and positive rights, and examined how imposing positive constitutional obligations may bring extra challenges. It is my submission that constitutional rights are desirable. The safeguards that they provide against abuse from authorities is too great to ignore. This is not to say that they are without troubles, issues of judicial power and democracy do arise.
Table of Constitutional Texts
Constitution of The Federative Republic of Brazil 1988. The Constitution of the Republic of South Africa 1996.
Table of Cases
Ag. Reg. no Ag.AI, 238.328-0/RS, Supremo Tribunal Federal, segunda turma, Rel. Min. Marco Aurélio, Nov. 16, 1999 (Brazil).
AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services (2021) South Africa ZACC 3.
Belgian Linguistics Case, Case "Relating to Certain Aspects of the Laws on the use of Languages in Education in Belgium" v Belgium (1968) 1 EHRR 252.
DeShaney v Winnebago County, 489 U.S. 189 (1989).
Bibliography
Legal Journals
Dandes S, ‘The Negative Constitution: A Critique’, (1990) 88 Michigan Law Review 2271, 2313.
Habermas J and Rehg W. ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29 Political Theory, 766.
Habermas J, ‘A reply to my critics’ In James Gordon Finlayson and Fabian Fryenhagan (eds), Habermas and Rawls: Disputing the Political (Rouledge 2011).
Klatt M, ‘Positive rights: Who decides? Judicial review in balance,’ (2015) 13 International Journal of Constitutional Law, 354.
Minkler L and Prakash N, ‘The Role of Constitutions on Poverty: A Cross National Investigation’, (2017) 45 Journal of Comparative Law 563.
Möller K, ‘From Constitutional to Human Rights: On the moral structure of international human rights’ (2014) CUP.
Pritchard K, ‘Comparative Human Rights: An Integrative Explanation’, (1986) 15 Politikon: South African Journal of Political Studies 24.
Schaffer J, ‘The co-originality of human rights and democracy in an international order,’ (2015) 7 International Theory 96.
Schauer F, ‘A Comment on the Structure of Rights’, (1993) 27 Georgia Law Review 415.
Books
Epp C, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective, (University of Chicago Press 1998).
Frankel Paul E, Miller F D. and Paul J (eds.), What Should Constitutions Do? (Cambridge University Press 2011).
Kagan S, Normative Ethics, (1st edn, Westview Press 1997), 74.
Sumner L W, Welfare, Happiness, and Ethics, (Clarendon Press 1996).
Versteeg M, Chilton A, How Constitutional Rights Matter, (OUP 2020).
This essay was originally written as a graded piece for my undergraduate law degree. The essay was graded as first class standard.