Constitutional Principles and Human Rights
PART 1: CONSTITUTION AND CONSTITUTIONALISM
CHAPTER 1: CONSTITUTION, CONTENTS AND FUNCTION
SECTION 1: CONSTITUTION
There is no single definition of a constitution, but according to Dicey:
• Constitutional law exists of “all rules which directly or indirectly affect the distribution or the exercise of
the sovereign power in the state”
• It “includes (among other things) all rules which define the members of the sovereign power, all rules
which regulate the relation of such members to each other, or which determine the mode in which the
sovereign power, or the members thereof, exercise their authority”
Constitutions can be adopted for several different reasons:
• Recognition of statehood: especially after decolonization or separation (e.g. Belgium was a part of the
Netherlands and then separated, one of the 1st things that was decided was the constitution)
• Establishment or symbolization of a nation’s existence: new countries that come about and have been
formed (e.g. after WW I)
• Expression of national unity: important in states with a heterogenous population
Constitutions are formal contours of the exercise of powers:
• Law in the books vs. law in action: these contours may be inaccurate with reality
o E.g. a charismatic leader or the leader of a dominant political party may have far greater impact
on policy and political reality than his powers formally attributed by the Constitution would allow
him to have
o This can become problematic if the constitution becomes a sham constitution: if the
constitutional limitations on powers do not correspond with the practice of unlimited
government in reality
§ E.g. Constitution of the USSR under Stalin (1936)
§ Recognizing a sham constitution is not easy and can differ from country to country,
therefore it’s important to have criteria to determine which shortfalls count in depriving a
constitution from its genuine nature as limiting the exercise of public powers.
o Sometimes it’s not a problem that law in the books doesn’t match law in action (e.g. in Belgium
the monarch does not appoint the ministers)
For a constitution to be genuine, it must enshrine certain values and principles that prevent society from
backsliding toward tyranny:
• They will be different in every country, depending on what values are important in certain countries
• There should always be an idea of limited government:
o Constitutionalism = idea of limited governance = those in power should respect the rule of law
§ Rule of law (narrow interpretation) = everyone is governed by law (legislative, executive
and judicial functions are separate)
→ with this you can also have an autocratic regime, a Nazi-Germany, where we
had legislation that was written down and adopted by the government and the
1
, parliament that was applied to everybody, excluding certain groups in society,
they don’t have any rights any more → that’s the rule of law, the law is applied to
everybody, all the people of those groups
§ That’s why in constitutionalism they add another layer: everybody should be governed by
law, but those who can act legislation are limited in their powers
o Human rights, fundamental rights are not included in a constitution or in international treaties
for the majority: the majority of people can always win: if you take a majority and let them vote,
they will never make legislation against the interest of the majority. That majority will always serve
themselves. But human rights should always be respected by them, because human rights are
there for the individual and not for the majority.
• E.g. the freedom of speech, habeas corpus (= you can’t be arrested blindly, if you detain somebody, the
person should always be brought before a judge)
• Dorf: what you find in a constitution are values that have been enshrined in the past (so that they are
binding for future generations)
Constitutions also contain aspirational provisions (change-oriented provisions):
• Aspirational constitutional rights do not burden later generations with the values if earlier generations
because the values only become realized if the later generation decides to make them its own
• E.g. Reconstruction Amendments (1865-70): guaranteed equality and equal citizenship throughout the
US, they weren’t values already shared in that period, but started to become a reality only in the 1950’s
and 1960’s because American society by that time had begun to value racial equality
The occasions/circumstances for the adoption of a constitution may differ:
• Amendment of the existing constitutional framework
• Replacement of an outdated Constitution
• Deep reflection
• Response to crisis situation, discrediting political powers, in post-conflict
SECTION 2: DIFFERENT MODELS WITHIN ONE CONSTITUTION
A constitution is adopted at a certain moment in time; the values may change and the way of looking at
things may change over the ages → the way constitutions are interpreted over the line may change as well
→ Tribe: “It may be that all efforts at such reduction or simplification, however suggestive, are ultimately more misleading
than informative. For the Constitution is an historically discontinuous composition; it is the product, over time, of a series of
not altogether coherent compromises; it mirrors no single vision or philosophy but reflects instead a set of sometimes
reinforcing and sometimes conflicting ideals and notions.”
→ a treatise American Constitutional Law: seven basic models that have represented the major alternatives for
constitutional argument and decision in American law, from the early 1800’s till now
1. Separated and divided powers:
• Only a small number of explicit substantive limitations on the exercise of governmental authority
were thought essential
• When the Americans drafted it, they wanted to separate the powers to make sure there wouldn’t
be a tyranny (because they thought centralisation equalled tyranny)
o Horizontally: system of checks and balances
o Vertically: federalism
• This model prevailed in the 1st half of the 19th century:
o It relied on the vitality and autonomy of the states to furnish a barrier against the
enterprises of ambition.
2
, o State legislation and sovereignty were mainly preserved by the rejection of the Supreme
Court: the Supreme Court would reject any challenges of state authority
§ E.g. the bill of rights was rejected as being a general charter of liberty against the
States, they said it only applies on a federal level, not on a state-level
§ But this doesn’t mean that there was no reference at all to substantial rights. The
Bill of Rights directed against federal abuses, together with separation and
division of powers
2. Implied limitations on government:
• Model 1’s linkage between protection of individual rights and the state level shattered by the
division over slavery between the North and the South (Civil War 1860-1865):
o At the end of the war, there was a realisation that they needed additional provisions in the
constitution
o Adoption of the Reconstruction Amendments (1865-1870) that were meant to
‘reconstruct’ the Southern states with the same liberty for all the population, including
former slaves
§ 13th Amendment: abolition of slavery and involuntary servitude (1865)
§ 14th Amendment: Citizenship Clause, Privileges/Immunities Clause, Due Process
Clause, Equal Protection Clause (1866)
due process = all the procedural action should be fair and dealt with in a
correct way
§ 15 Amendment: prohibition of discrimination in voting rights based on race,
th
color or previous conditions of servitude (1870)
• Supreme Court did not follow, out of fear of national tyranny (many feared that Congress could
deploy the 14th Amendment as a sword against the only governments close enough to people to provide
enduring protection for their interests):
o Example 1: Slaughterhouse Cases (1873) upheld slaughterhouse monopoly by Louisiana
as non-discriminatory: the 14th Amendment was not meant to displace the central role pf
the states as protectors of their own citizens and so the equal protection guaranteed
under the amendment did not extend to rights under state law.
o Example 2: Plessy v. Ferguson (1896) upheld Jim Crow laws:
§ Jim Crow laws were the laws of segregations that prohibited coloured and white
people from using the same facilities
§ The Court says that the separation doesn’t fall under the 14th amendment, every
state can decide how they regulate the use of facilities → separate but equal
doctrine = as long as the facilities provided to each race were equal,
governments could require that the services and facilities be segregated by race
without violating the 14th Amendment
• Instead of relying on the 3 amendments, it relied on general principles of common law:
o Federal legislation remedying state infringements upon individual common-law rights
would be upheld
o Federal laws intruding on State domain are invalidated
o State laws invading private domain are invalidated
• Model II connects individual and institutional concerns, it no longer relied heavily on the
presumed trustworthiness of state and local governments in dealing with its own citizens
• This meant that an objective judicial method had to be available for defining the limitations of
state power and hence filling out the contents of personal liberty (e.g. Lochner v. New York
(1905))
3
, 3. Settled expectations (reliable government):
• During the interbellum, there was no longer the belief that property and contractual rights are
attributable to some natural order of things, but they become a function of government regulation
and intervention → liberty is now seen as a function of positive action of the state
• Model 3 is based on the norm of repose: when intervening, government must respect vested
rights in property and contract, so that certain settled expectations of a focused and crystallized
sort are secure against governmental disruption, at least without appropriate compensation →
this is expressed through guarantees against contract impairment and uncompensated takings
o No uncompensated takings: taxing only in the benefit of public good, takings
(expropriation) are only allowed under just compensation requirement for the sacrifice to
the public good
o No contract impairment: you cannot adopt state legislation that is going to disrupt
contracts
4. Governmental regularity:
• The most focused deprivations of individual interests in life (liberty or property) require to be
accompanied by procedural safeguards such as:
o The ban on ex post facto laws in criminal law: penal legislation which imposes or
increases criminal punishment for conduct lawful prior to its enhancement is forbidden.
o Procedural due process: the due process requirement in the 5th and 14th Amendment
limits judicial, executive and administrative enforcement of legislative or other
governmental decisions and has traditionally involved the elaboration of procedural
safeguards designed to accord to the individual right to be heard before being
condemned to suffer grievous loss of any kind as a result of governmental choices.
5. Preferred rights:
• Models 3 and 4 only protects what the government chooses to confer, unless their operations
were infused with substantive values beyond those of assuring the fair implementation of the
state’s own positive decisions.
• Model 5 has attempted to elaborate such values through doctrines involving freedom of
expression and association and association, right of political participation, right of religious
autonomy, rights of privacy and personhood.
• Preferred rights models after 1937: first shift from ‘what is the government doing and is it working
in a correct way and not looking at the outcomes’ to ‘the Court is going to intervene if legislation
goes against substantive matters, not all rights, but certain rights’ (e.g. freedom of expression)
6. Equal protection:
• Model 6 is a competing post-1937 model
• Identification of
o Fundamental aspects of social structure which should be open to all on equal terms
o Criteria of government classification which are most suspect to reflect prejudice
• It has been possible to give content to this model only through (often controversial) substantive
judgments
7. Structural justice:
• Tries to contextually match decisional structures: sometimes freedom is best served in some
contexts by putting matters beyond governmental reach and in others by the opposite approach
4
PART 1: CONSTITUTION AND CONSTITUTIONALISM
CHAPTER 1: CONSTITUTION, CONTENTS AND FUNCTION
SECTION 1: CONSTITUTION
There is no single definition of a constitution, but according to Dicey:
• Constitutional law exists of “all rules which directly or indirectly affect the distribution or the exercise of
the sovereign power in the state”
• It “includes (among other things) all rules which define the members of the sovereign power, all rules
which regulate the relation of such members to each other, or which determine the mode in which the
sovereign power, or the members thereof, exercise their authority”
Constitutions can be adopted for several different reasons:
• Recognition of statehood: especially after decolonization or separation (e.g. Belgium was a part of the
Netherlands and then separated, one of the 1st things that was decided was the constitution)
• Establishment or symbolization of a nation’s existence: new countries that come about and have been
formed (e.g. after WW I)
• Expression of national unity: important in states with a heterogenous population
Constitutions are formal contours of the exercise of powers:
• Law in the books vs. law in action: these contours may be inaccurate with reality
o E.g. a charismatic leader or the leader of a dominant political party may have far greater impact
on policy and political reality than his powers formally attributed by the Constitution would allow
him to have
o This can become problematic if the constitution becomes a sham constitution: if the
constitutional limitations on powers do not correspond with the practice of unlimited
government in reality
§ E.g. Constitution of the USSR under Stalin (1936)
§ Recognizing a sham constitution is not easy and can differ from country to country,
therefore it’s important to have criteria to determine which shortfalls count in depriving a
constitution from its genuine nature as limiting the exercise of public powers.
o Sometimes it’s not a problem that law in the books doesn’t match law in action (e.g. in Belgium
the monarch does not appoint the ministers)
For a constitution to be genuine, it must enshrine certain values and principles that prevent society from
backsliding toward tyranny:
• They will be different in every country, depending on what values are important in certain countries
• There should always be an idea of limited government:
o Constitutionalism = idea of limited governance = those in power should respect the rule of law
§ Rule of law (narrow interpretation) = everyone is governed by law (legislative, executive
and judicial functions are separate)
→ with this you can also have an autocratic regime, a Nazi-Germany, where we
had legislation that was written down and adopted by the government and the
1
, parliament that was applied to everybody, excluding certain groups in society,
they don’t have any rights any more → that’s the rule of law, the law is applied to
everybody, all the people of those groups
§ That’s why in constitutionalism they add another layer: everybody should be governed by
law, but those who can act legislation are limited in their powers
o Human rights, fundamental rights are not included in a constitution or in international treaties
for the majority: the majority of people can always win: if you take a majority and let them vote,
they will never make legislation against the interest of the majority. That majority will always serve
themselves. But human rights should always be respected by them, because human rights are
there for the individual and not for the majority.
• E.g. the freedom of speech, habeas corpus (= you can’t be arrested blindly, if you detain somebody, the
person should always be brought before a judge)
• Dorf: what you find in a constitution are values that have been enshrined in the past (so that they are
binding for future generations)
Constitutions also contain aspirational provisions (change-oriented provisions):
• Aspirational constitutional rights do not burden later generations with the values if earlier generations
because the values only become realized if the later generation decides to make them its own
• E.g. Reconstruction Amendments (1865-70): guaranteed equality and equal citizenship throughout the
US, they weren’t values already shared in that period, but started to become a reality only in the 1950’s
and 1960’s because American society by that time had begun to value racial equality
The occasions/circumstances for the adoption of a constitution may differ:
• Amendment of the existing constitutional framework
• Replacement of an outdated Constitution
• Deep reflection
• Response to crisis situation, discrediting political powers, in post-conflict
SECTION 2: DIFFERENT MODELS WITHIN ONE CONSTITUTION
A constitution is adopted at a certain moment in time; the values may change and the way of looking at
things may change over the ages → the way constitutions are interpreted over the line may change as well
→ Tribe: “It may be that all efforts at such reduction or simplification, however suggestive, are ultimately more misleading
than informative. For the Constitution is an historically discontinuous composition; it is the product, over time, of a series of
not altogether coherent compromises; it mirrors no single vision or philosophy but reflects instead a set of sometimes
reinforcing and sometimes conflicting ideals and notions.”
→ a treatise American Constitutional Law: seven basic models that have represented the major alternatives for
constitutional argument and decision in American law, from the early 1800’s till now
1. Separated and divided powers:
• Only a small number of explicit substantive limitations on the exercise of governmental authority
were thought essential
• When the Americans drafted it, they wanted to separate the powers to make sure there wouldn’t
be a tyranny (because they thought centralisation equalled tyranny)
o Horizontally: system of checks and balances
o Vertically: federalism
• This model prevailed in the 1st half of the 19th century:
o It relied on the vitality and autonomy of the states to furnish a barrier against the
enterprises of ambition.
2
, o State legislation and sovereignty were mainly preserved by the rejection of the Supreme
Court: the Supreme Court would reject any challenges of state authority
§ E.g. the bill of rights was rejected as being a general charter of liberty against the
States, they said it only applies on a federal level, not on a state-level
§ But this doesn’t mean that there was no reference at all to substantial rights. The
Bill of Rights directed against federal abuses, together with separation and
division of powers
2. Implied limitations on government:
• Model 1’s linkage between protection of individual rights and the state level shattered by the
division over slavery between the North and the South (Civil War 1860-1865):
o At the end of the war, there was a realisation that they needed additional provisions in the
constitution
o Adoption of the Reconstruction Amendments (1865-1870) that were meant to
‘reconstruct’ the Southern states with the same liberty for all the population, including
former slaves
§ 13th Amendment: abolition of slavery and involuntary servitude (1865)
§ 14th Amendment: Citizenship Clause, Privileges/Immunities Clause, Due Process
Clause, Equal Protection Clause (1866)
due process = all the procedural action should be fair and dealt with in a
correct way
§ 15 Amendment: prohibition of discrimination in voting rights based on race,
th
color or previous conditions of servitude (1870)
• Supreme Court did not follow, out of fear of national tyranny (many feared that Congress could
deploy the 14th Amendment as a sword against the only governments close enough to people to provide
enduring protection for their interests):
o Example 1: Slaughterhouse Cases (1873) upheld slaughterhouse monopoly by Louisiana
as non-discriminatory: the 14th Amendment was not meant to displace the central role pf
the states as protectors of their own citizens and so the equal protection guaranteed
under the amendment did not extend to rights under state law.
o Example 2: Plessy v. Ferguson (1896) upheld Jim Crow laws:
§ Jim Crow laws were the laws of segregations that prohibited coloured and white
people from using the same facilities
§ The Court says that the separation doesn’t fall under the 14th amendment, every
state can decide how they regulate the use of facilities → separate but equal
doctrine = as long as the facilities provided to each race were equal,
governments could require that the services and facilities be segregated by race
without violating the 14th Amendment
• Instead of relying on the 3 amendments, it relied on general principles of common law:
o Federal legislation remedying state infringements upon individual common-law rights
would be upheld
o Federal laws intruding on State domain are invalidated
o State laws invading private domain are invalidated
• Model II connects individual and institutional concerns, it no longer relied heavily on the
presumed trustworthiness of state and local governments in dealing with its own citizens
• This meant that an objective judicial method had to be available for defining the limitations of
state power and hence filling out the contents of personal liberty (e.g. Lochner v. New York
(1905))
3
, 3. Settled expectations (reliable government):
• During the interbellum, there was no longer the belief that property and contractual rights are
attributable to some natural order of things, but they become a function of government regulation
and intervention → liberty is now seen as a function of positive action of the state
• Model 3 is based on the norm of repose: when intervening, government must respect vested
rights in property and contract, so that certain settled expectations of a focused and crystallized
sort are secure against governmental disruption, at least without appropriate compensation →
this is expressed through guarantees against contract impairment and uncompensated takings
o No uncompensated takings: taxing only in the benefit of public good, takings
(expropriation) are only allowed under just compensation requirement for the sacrifice to
the public good
o No contract impairment: you cannot adopt state legislation that is going to disrupt
contracts
4. Governmental regularity:
• The most focused deprivations of individual interests in life (liberty or property) require to be
accompanied by procedural safeguards such as:
o The ban on ex post facto laws in criminal law: penal legislation which imposes or
increases criminal punishment for conduct lawful prior to its enhancement is forbidden.
o Procedural due process: the due process requirement in the 5th and 14th Amendment
limits judicial, executive and administrative enforcement of legislative or other
governmental decisions and has traditionally involved the elaboration of procedural
safeguards designed to accord to the individual right to be heard before being
condemned to suffer grievous loss of any kind as a result of governmental choices.
5. Preferred rights:
• Models 3 and 4 only protects what the government chooses to confer, unless their operations
were infused with substantive values beyond those of assuring the fair implementation of the
state’s own positive decisions.
• Model 5 has attempted to elaborate such values through doctrines involving freedom of
expression and association and association, right of political participation, right of religious
autonomy, rights of privacy and personhood.
• Preferred rights models after 1937: first shift from ‘what is the government doing and is it working
in a correct way and not looking at the outcomes’ to ‘the Court is going to intervene if legislation
goes against substantive matters, not all rights, but certain rights’ (e.g. freedom of expression)
6. Equal protection:
• Model 6 is a competing post-1937 model
• Identification of
o Fundamental aspects of social structure which should be open to all on equal terms
o Criteria of government classification which are most suspect to reflect prejudice
• It has been possible to give content to this model only through (often controversial) substantive
judgments
7. Structural justice:
• Tries to contextually match decisional structures: sometimes freedom is best served in some
contexts by putting matters beyond governmental reach and in others by the opposite approach
4
