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

ISBN13: 9781509913596
Published: April 2018
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £80.00
Paperback edition , ISBN13 9781509940301

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Constitutional courts around the world increasingly rely on empirical and moral reasoning in judicial review of legislation.

The abstract language of bills of rights and the proportionality inquiry invite the use of non-legal sources to resolve cases about constitutional rights, which address the most controversial issues of our day: data privacy, anti-terrorism laws, assisted suicide, marriage, abortion, and more. Judges review social science research to assess whether a law will effectively achieve its aim, and at what cost to other interests, citing studies and statistical information from psychology, sociology, and medicine, and other disciplines.

This empirical reasoning proceeds alongside moral reasoning regarding values such as equality, liberty, and autonomy, determining what they require in concrete circumstances.

This book shows that courts were not designed for this kind of moral and empirical reasoning, and generally lack the institutional capacities needed to do it well. The crux of the problem is the entrenched nature of constitutional decisions. A judgment that annuls legislation or establishes a new right is, in principle, permanent.

Moral and factual errors made by constitutional courts are not subject to the correcting mechanisms of ordinary political and legislative processes. The book concludes with practical proposals to address the deficit in the institutional capacities of courts, and to ameliorate the entrenchment effect of constitutional decisions.

Constitutional and Administrative Law, Judicial Review
1. Introduction
I. Removing the Blindfold
II. Scope of the Argument
III. Recovering Montesquieu

2. The Adjudication of Constitutional Rights
I. Constitutional Rights and Ordinary Legal Rights
II. Proportionality in Practice
III. Proportionality in the US?
IV. Absolute and Prima Facie Rights
V. Rights, Proportionality and Utilitarianism
VI. Rights as Interests
VII. Moral and Empirical Reasoning
VIII. Other Adjudicative Methods
IX. Conclusion

3. Are Rights Trumps?
I. The Shielded-Interest Theory
II. The Filtered-Preference Theory
III. Constitutional Rights and Statistics
IV. Revision of the Filtered-Preference Theory

4. Judicial Capacity and Empirical Research
I. Empirical Research and the Origins of Proportionality
II. Empirical Evidence in the US Supreme Court
III. Adjudicative Facts and Legislative Facts
IV. Finding Legislative Facts
V. The Courts and Social Science
VI. Case Studies
VII. Conclusion

5. Comparative Analysis of Institutional Capacities
I. The Basic Structure of Judicial Reasoning
II. The Basic Structure of Legislative Reasoning
III. Capacity for Empirical Reasoning
IV. Capacity for Moral Reasoning
V. The Tyranny of the Majority?
VI. Capacity to Protect Minorities
VII. An Historical Perspective
VIII. Conclusion

6. The Problem of Entrenchment
I. Legal Change and the Rule of Law
II. Rawls and the Perpetual Constitution
III. The Rarity of Constitutional Amendment
IV. The Legislative-Judicial Method of Reversing Nullification Decisions
V. Conclusion

7. Judicial Review and Constitutional Design
I. The American and Kelsenian Models
II. Designing a Constitutional Court
III. Council of Revision
IV. Does the Legislature Need a Check?
V. Deference
VI. Conclusion