Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review

by Paul Yowell

Overview

The decisions courts make in constitutional rights cases pervade our political life and touch on our most basic interests and values. The spread of judicial review of legislation around the world means that courts are increasingly called on to settle matters of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion. But doubts regarding the institutional capacities of courts for deciding such questions are growing. Judges now regularly review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests. They cite studies and statistical information from psychology, sociology, medicine, and other disciplines in which they are rarely trained. This empirical reasoning proceeds alongside open-ended moral reasoning, with judges employing terms such as equality, liberty, and autonomy, then determining what these require in concrete circumstances. This book shows that courts were not designed for this kind of moral and empirical reasoning. It argues that in comparison to legislatures, the institutional capacities of courts are deficient. Legislatures are better equipped than courts for deliberating and decision-making in regard to the kinds of factual and moral issues that arise in constitutional rights cases. The book concludes by considering the implications of comparative institutional capacity for constitutional design. Is a system of judicial review of legislation something that constitutional framers should choose to adopt? If so, in what form? For countries with systems of judicial review, practical proposals are made to remedy deficiencies in the institutional capacities of courts.

Product Details

ISBN-13:	9781509940301
Publisher:	Bloomsbury Academic
Publication date:	09/03/2020
Pages:	186
Product dimensions:	6.14(w) x 9.21(h) x 0.40(d)

About the Author

Paul Yowell is Associate Professor of Law at the University of Oxford, and Fellow and Tutor in Law at Oriel College, Oxford.

Table of Contents

Preface v

1 Introduction 1

I Removing the Blindfold 5

II Scope of the Argument 9

III Recovering Montesquieu 10

2 The Adjudication of Constitutional Rights 13

I Constitutional Rights and Ordinary Legal Rights 14

II Proportionality in Practice 15

III Proportionality in the US? 20

IV Absolute and Prima Facie Rights 24

V Rights, Proportionality and Utilitarianism 27

VI Rights as Interests 27

VII Moral and Empirical Reasoning 30

VIII Other Adjudicative Methods 35

IX Conclusion 39

3 Are Rights Trumps? 40

I The Shielded-Interest Theory 41

II The Filtered-Preference Theory 44

III Constitutional Rights and Statistics 47

IV Revision of the Filtered-Preference Theory 51

4 Judicial Capacity and Empirical Research 56

I Empirical Research and the Origins of Proportionality 57

II Empirical Evidence in the US Supreme Court 62

III Adjudicative Facts and Legislative Facts 63

IV Finding Legislative Facts 65

V The Courts and Social Science 68

VI Case Studies 73

VII Conclusion 88

5 Comparative Analysis of Institutional Capacities 90

I The Basic Structure of judicial Reasoning 90

II The Basic Structure of Legislative Reasoning 96

III Capacity for Empirical Reasoning 98

IV Capacity for Moral Reasoning 104

V The Tyranny of the Majority? 115

VI Capacity to Protect Minorities 120

VII An Historical Perspective 126

VIII Conclusion 128

6 The Problem of Entrenchment 131

I Legal Change and the Rule of Law 132

II Rawls and the Perpetual Constitution 133

III The Rarity of Constitutional Amendment 140

IV The Legislative-Judicial Method of Reversing Nullification Decisions 143

V Conclusion 145

7 Judicial Review and Constitutional Design 147

I The American and Kelsenian Models 148

II Designing a Constitutional Court 151

III Council of Revision 162

IV Does the Legislature Need a Check? 163

V Deference 165

VI Conclusion 165

Index 167