Chapter

Reconceiving Rights and Constitutionalism

Jennifer Nedelsky

in Law's Relations

Published in print January 2012 | ISBN: 9780195147964
Published online January 2012 | e-ISBN: 9780199918133 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780195147964.003.0007
Reconceiving Rights and Constitutionalism

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Chapter 6 presents a relational approach to rights and a view of constitutionalism as a dialogue of democratic accountability, in which rights do not serve as “trumps.” Here rights are a form of collective choice, different from the collective choices of legislatures, but collective choices nonetheless. These changes in the conceptions of rights and constitutionalism allow for the necessary recognition of the contingent and contested nature of legal rights. This recognition need not, however, undermine the capacity of rights to serve as standards for the legitimacy of governmental action. That legitimacy will be assessed through a “dialogue of democratic accountability.” This approach to rights mitigates some of the most persistent critiques of rights. And the “dialogue of democratic accountability” model avoids the kind of democratic critiques that the American model of rights as trumps generates. There are examples of how a relational approach can help guide debates about which rights should be constitutionalized and about the interpretation of existing constitutional rights. Finally, there is an alternative institutional model that encourages a relational approach and highlights the limits of the dominant court-centered understanding of rights and constitutionalism

Keywords: rights; constitutionalism; democracy; rights as “trumps”; judicial review

Chapter.  22782 words. 

Subjects: Jurisprudence and Philosophy of Law

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