LEGISLATED RIGHTS IN THE ANGLO-AMERICAN TRADITION.
The guiding aim of legislatures should be to protect and promote human rights. This might seem a common sense or obvious proposition. But there are some theorists and judges who reject it, holding that human rights are the province of courts while the task of legislatures is to increase the welfare of society in aggregate or on average. As Robert Lowry Clinton reports in his comment, "[a]lthough the interpretation of most modern bills of rights was designed initially to be a joint product of both legislative and judicial reasoning, many people have come to believe that decisions about human rights are mainly--if not solely--the province of courts". (3) Other theorists and judges accept that the legislatures should aim to protect rights but doubt their practical competence in doing so. To entrust legislatures to do so is akin to "allowing the fox to guard the hen house", reports Andy Olree in his contribution, at least for those "negative rights" that are held against the legislature. (4) Finally, some theorists and judges neglect the question of the legislative role simply because both scholarly and popular discourse about human rights has focussed on the judicial role to an overwhelming degree. Victoria Nourse reports the dominant view in the American academy that "rights are associated with courts, not legislatures," with the consequence that many constitutional theories fail to understand "the constitution entire" with all its working parts. (5) Adam MacLeod agrees, noting that it is "beyond dispute" that claims that the legislature is well placed to secure and promote human rights have "fallen into disfavour in common-law jurisdictions". (6)
Legislated Rights: Securing Human Rights through Legislation aims to correct these imbalances in constitutional thought and scholarship and proposes a new understanding of human rights law that emphasises the legislature's role. (7) Together with four other authors--Maris Kopcke, Francisco Urbina, Bradley Miller, and Paul Yowell--we aim to show how legislatures should be, and in well-functioning democracies commonly are, at the centre of human rights practice. The book begins by identifying and criticising four theses that inhibit an understanding of the legislative role and by introducing four counter-theses to replace them. Stated as propositions and without commentary, the four thesis/counter-thesis pairings reviewed in first chapter of the book are as follows:
Thesis 1: The legislature's main function is to promote the general welfare by aggregating preferences or maximising overall utility Counter-thesis 1. The legislature is capable of principled, reasoned deliberation, and the central case of legislative action consists in reasoned deliberation to promote the common good, which has as its concern the well-being and rights of all persons in community Thesis 2: The legislature, unlike the court, is institutionally biased toward majority interests and against minorities and is thus unfit to engage in principled decision-making about human rights Counter-thesis 2: The legislature is not inherently biased against minorities and is fit to engage in principled decision-making about human rights Thesis 3: The legislature regularly and permissibly acts in opposition to human rights, since it must infringe rights to achieve other aims for the sake of the public interest Counter-thesis 3: Sound legislation does not oppose human rights, but rather affirms the requirements of human rights, including by specifying the broad, goal-oriented standards included in human rights instruments into relatively precise legal form Thesis 4: With few exceptions, human rights are defeasible, because they are conditional on the weight of individual interests which of necessity must be balanced against other interests Counter-thesis 4: the legislature is capable of providing non-defeasible protection to human rights, by specifying them in a form so that the rights are not defeasible against countervailing interests or the general welfare. (8)
The four theses that we challenge are not all of a kind. The first two make claims about legislatures that are neither purely normative nor merely reporting empirical observations. Rather, they express a view as to the capabilities of legislatures, what they are especially suited to do, given their institutional design and composition. Our corresponding counter-theses are also institutionally focused, and offer a different and, we argue, truer understanding of the relative capacity of the legislature as an institution in relation to rights. The second set of theses makes claims about rights, their relationship to the common good, and their defeasibility. Our corresponding counter-theses offer a different understanding of rights, showing how a richer understanding of rights resists opposition between rights and the common good and, similarly, resists any inherent opposition between rights and legislation.
Our four distinguished commentators challenge various aspects of these four thesis/counter-thesis pairings and they challenge much else, too. In this article, we defend our recourse to the central case method (sec. II) and consider the role and record of the legislature in the American tradition and in the wider common law world (sec. III). We go on to explore the relationship between the argument of Legislated Rights and questions of constitutional structure, including the separation of powers in parliamentary and presidential systems and the nature of judicial power (sec. IV). We then discuss whether the book's argument is fairly read as harbouring scepticism on the great question of judicial review (sec. V) before reviewing how our argument for legislated rights relates to instances in which the "rights" being legislated are, in truth, not only specious but themselves violate true rights (sec. VI). We conclude our reflections by exploring the relationship between legislated rights, common law, custom, and tradition (sec. VII).
II. CENTRAL CASE METHOD
In the first pages of Legislated Rights, we introduce what Clinton calls our book's "most fundamental presupposition": central case analysis. (9) Central case analysis is a way of approaching the study of legislatures and of legislation that does not set out to find the one thing common between all of the legislatures that have ever been, or of some such sub-set of them across time and geography. It is a way of approaching the study of legislatures and of legislation that is clear-eyed on the relationship between philosophical argument and history and sociology and anthropology, inviting the latter studies of human affairs--all bounded by time and place and all seeking to identify particular truths--to inform, but not to settle or bound or constrain the search for general truths. One can set out to study the United States Congress and its legislation in America today or in 1787 or at the time of Brown v. Board of Education. (10) One's project will answer to the standards for truth for such a project. But what if one's project is not bounded by time and place in this way? What if one's project aims to study the nature of the legislature and of legislation, not here and there, then and now, but as a philosophical matter, seeking to identify general truths about the institution and its activity? It is here that central case analysis offers a methodology in philosophical argument.
An analogy may be drawn to the natural sciences. As we explain in Legislated Rights, the "study of medicine proceeds on the basis of ideas about the healthy functioning of the body, and that is what enables doctors and researchers to identify pathologies." (11) It may be that there has never been a human with a body that answers to the central case of a healthy body--perhaps each one of us, in our bodily make-up and functioning, is imperfect in small or large ways. What makes the central case of a healthy body "central" is not, as we say, its empirical regularity or statistical likelihood. (12) The central case is not constructed by seeking out the lowest common denominator or one thing common or set of things statistically frequent or regular across all human bodies and their functioning, be it for all of human history and geography or for those of a given time and place. Rather, what makes the central case of a body "central" is that it is fully what a healthy body should be. The real life bodies of flesh-and-blood humans can be studied in the light of this central case, which assists in identifying where they are less than fully healthy and, so, non-central in one or more ways.
The study of human affairs, unlike the study of the natural sciences, has as its object self-directing and self-determining human actions, practices, traditions, customs, and other like aspects of our world that are as they are because of human willing and intending. (13) These actions, practices, and so on are "certainly influenced by the 'natural' causes properly investigated by the methods of the natural sciences, including a part of the science of psychology", but they can be "fully understood only by understanding their point, that is to say their objective, their value, their significance or importance, as conceived by the people who performed them, engaged in them, etc.". (14) For any human act, the question why presents itself: Why did persons act the way they did? Synonymously: What were their reasons for so acting? (15) Indeed, so controlling is the why-question methodology in the study of human actions that Aristotle, Aquinas, and those, like John Finnis and us, who follow their methodological teachings, affirm that "to understand, describe, and explain what something brought about by human judgment and choice is requires that one ask why that something was brought about". (16)
If one is studying the legislature and legislation of a time and place, one attends to the reasons and self-understandings of the persons of that time and place: their reasons for introducing and sustaining an institution and its laws. But what if one aims to undertake a philosophical project, seeking to understanding "the legislature" and "legislation" without restricting the scope of one's study to this or that legislature or this or that legislation? Is one bound to study the reasons of situated persons, as they understood them? If one is so bound, can there be a general theory of legislatures and legislation? The answer is that one is not so bound and so there can be a general theory. As we say in Legislated Rights, the central case of the legislature and legislation aims to award "explanatory priority in philosophical argument to those cases that are fully responsive to the reasons that favour introducing... legislation [and] legislatures". (17) Those fully responsive reasons may include the reasons of persons of different times and places. Indeed, the reasons of those situated persons will be important data in reflections as to what are truly good reasons for introducing and sustaining a legislature and legislation. In Legislated Rights, we point to the "peace, order, and good government" clauses of the Australian and Canadian constitutions to inform our reflections on the reasons favouring legislatures and legislation; (18) we could have pointed, as does Olree, to the Declaration of Independence's reference to the need "to secure [inalienable] Rights" as a reason why "Governments are instituted among Men". (19) These reasons are not made good in philosophical argument by the fact that they are referred to in constitutional instruments of great weight. But the fact that persons of great weight thought these to be good reasons to institute legislatures and to direct the point of their activities is of significance to one who seeks to interrogate which, if any, are the truly good reasons to favour introducing legislation and legislatures.
For one who seeks general truths about legislatures and legislation, truly good reasons will be thought to be good reasons for you and us and others because, so far as one can judge, good reasons are good for anyone and everyone. (20) Because of the unbounded nature of truly good reasons--good reasons that, we argue in Legislated Rights, show the need for a legislature and legislation in any political community, a need not limited, pace Olree, (21) to the non-angelic nature of rulers and ruled--"one should anticipate finding in existence, to one degree or another, in any human community... what, as historical studies confirm, has indeed existed... in virtually every human community of which we are aware". (22) It is no surprise that, albeit "with many and various imperfections and reasonable and unreasonable adaptations and approximations", (23) human persons have responded to truly good reasons and have instituted legislatures and have enacted legislation.
In this way, central case analysis focuses on what is truly general, not as a matter of statistical frequency or other like "non-evaluative" markers, but as a matter of what is responsive to the truly good reasons for bringing it about. A theory of human affairs that aims to go beyond the methods of history, anthropology, and sociology--all methods for interrogating truths about the affairs of a time and place--must evaluate what are truly good reasons for human action and practices. To this end, the theorist of human affairs must "decide what the requirements of practical reasonableness really are" as they pertain to the subject matter of study. (24) The answer to that question is never settled by what the theorist now thinks, but is always open to what ought to be thought, by the theorist and anyone.
In this way, central case analysis is focused on the general, but without overlooking or defining out of existence the particulars that, when evaluated against the central case, will be judged to be non-central. As explained by John Finnis in his re-introduction of the central case method to the jurisprudential study of law:
one can differentiate the mature from the undeveloped in human affairs, the sophisticated from the primitive, the flourishing from the corrupt, the fine specimen from the deviant case, the "straight forwardly", "simply speaking" (simpliciter), and "without qualification" from the "in a sense", "in a manner of speaking", and "in a way" (secundum quid)--but all without ignoring or banishing to another discipline the undeveloped, primitive, corrupt, deviant, or other "qualified sense" or "extended sense" instances of the subiect-matter. (25)
Clinton rightly reports that our focus on the central case "calls attention to the reasons for legislating, what legislatures are supposed to do, and why we have them in the first place". (26) Such an approach, he says, "may be contrasted with the all-too-common approach of institutional scholars that is preoccupied almost exclusively with institutional pathology", of which one of the "unfortunate results" is "an increasing tendency to view pathological cases of institutional malfunctioning as "normal"--in the normative as well as the empirical sense". (27) Indeed, institutional pathology and malfunctioning may well be "normal" in the empirical sense: it may be statistically frequent in whatever time horizon and geographical site one focuses on. But, as Clinton's vocabulary communicates, such empirical normalcy is not normal when evaluated against the normative standard of the central case, a standard understands the legislature as an institution with responsibility "to secure human rights as an integral part of promoting the common good of the political community in all of its complexity". (28) Against that standard, pathologies are pathologies, malfunctioning is malfunctioning: such vocabulary signals that one has in view instances of legislatures and legislating failing to be what the legislature and legislation are supposed to be. An exclusive focus on legislative pathologies is liable to lead one to construct a normative understanding of legislatures that denies that the pathology is pathology and so transfers the malfunction into the institution's true function. As Clinton says, "pathology is best understood as a reminder of the good from which it deviates". (29)
While Clinton calls Legislated Rights' recourse to central case analysis "refreshing and constructive" and says that the "clear distinction made by the authors between the central case and pathological cases of legislation is perhaps the book's most important contribution," (30) Olree takes a different view. Commenting on our "glowing description of the process of lawmaking," Olree predicts that our claims about legislatures and legislation would "likely strike most of the Founders (many of whom had served in legislatures) as out of touch with reality; in fact, they might well wonder whether the Authors had ever seen a real legislature in action". (31) He accepts that the central case is "obviously normative", but challenges what he see as our "treat[ment of] it as descriptive (to an indeterminate extent) as well." (32) To challenge its descriptive accuracy, Olree appeals to the American Founders' experience and the conclusions they drew from such experiences in designing the U.S. Constitution, which is further discussed in section III below.
In contrast to Olree's understanding of the book's normative focus, MacLeod reads Legislated Rights as "descriptive". (33) Can both be true or is one or the other misreading the argument of the book (assuming the book not to be fundamentally confused about its enterprise)? In our view, claims about the book's normative and descriptive foci are true, for reasons that MacLeod carefully reviews. He is worth quoting in full on this point:
To see that well-constituted legislatures possess the central features of a rights-specifying institution, or even to doubt that proposition, is to make an assessment both about what it means to be a legislature and what it means to be a rights-specifying institution. Value is bound up in a legislature's institutional design. A good legislature has a moral purpose. It provides a forum for the political community to deliberate about existing legal reasons and the reasons for possible new legal reasons. If not, then it serves some other practical end. Similarly, to assess a legislature's efficacy for specifying rights, one must first have in mind some central instance of an institution which does that job well. (34)
MacLeod's explanation recalls the relationship between describing what something is and evaluating why that something has been instituted. The description of the central case of the legislature and of legislation appeals to sound practical reasoning. To be "done well", "[d]escriptive jurisprudence cannot avoid evaluation". (35) For these reasons, we resist attempts to draw too firm a distinction between normative and descriptive claims when, as in Legislated Rights, the concern is to provide a general account of the legislature. (36) When the concern is to provide a particular account of a legislature of a time and place, then one ought to do as Olree does: describe, as accurately as historical method allows one to describe, the reasons of those responsible for instituting that legislature. One's normative evaluation of those reasons is, just as such, no part of that that descriptive activity. Yet, when the concern is to provide a general account of a legislature, one's description of the central case of the legislature is normative precisely because one is interrogating and identifying the truly good reasons that are fully responsive to the need to institute a legislature in political community.
Olree questions the merits of the central case of the legislature defended in Legislated Rights by appealing to his description of the United States Founding and the evaluations of the Founders. He argues that the Founders' theoretical understanding of the legislature, informed by their own experience with legislative assemblies in the colonies and states, provides a surer basis for understanding the legislature. There are two ways to read Olree's invitation here. The first is that Olree is questioning whether the reasons we identify to inform our central case of the legislature are good or sufficient or fully responsive to the range of considerations that should inform the design of the good legislature. Here, Olree's appeal to the Founders is not to be understood, as such, to be appealing to history to challenge our central case, but rather to be appealing to the reasoning of historical figures of significance, so that our reasons ought to revisited because they do not align with the best reasons. This reading of Olree's claim is true to the central claim method. That, we suspect, is not the best way to read Olree's objection. Rather, a second and, we think, truer way to read Olree's invitation is to suggest that our central case method is inapplicable to the US because American history has a different conception of the legislature, one that does not align with our central case account.
On this reading of Olree's claims, the US Founders were justified in doubting the capacity and competence of legislatures based on their experience with colonial and state legislatures and legislation. Confronted with such examples, the Founders preferred corrective measures--like judicial review--when designing the US Constitution. The Constitution's conception of the legislature is the animating conception of the legislature in the US, with the result that our central case of the legislature is neither here nor there when it comes to the American example. Albeit with different emphasis, this reading of Olree's claim is close to some other comments, which relate the arguments of Legislated Rights to the American experience. We now turn to this relationship and consider and defend the relevance of our account of the legislature to the US experience.
III. RIGHTS PROTECTION IN THE UNITED STATES IN COMPARATIVE PERSPECTIVE
The "obvious" proposition that Legislated Rights defends--that the legislature is a type of institution well placed to secure and promote human rights--is clearly at odds with modern American constitutional thought. Clinton laments that "[w]e are living in an age in which courts are widely thought to be the primary guardians of rights." (37) Nourse notes the divide between the European and British constitutional traditions, on the one hand, and the American tradition, on the other, and says that:
Those in the Anglo-tradition are reticent to embrace strong judicial review. Meanwhile, Americans, at least since Ronald Dworkin, have loudly lauded the superiority of a system of judicial review. For much of the past forty years, American constitutionalists have taught that courts are grand heroes of individual rights. (38)
While we would distinguish the European and British constitutional traditions, we agree with Nourse that American constitutionalism often indulges in "judicial glorification". (39)
MacLeod maintains that the proposition we defend "was almost unquestioned from the time of the English revolution until the American legal realist revolution", but adds "[t]hat the proposition has fallen into disfavour in common-law jurisdictions." (40) However, Olree takes our work not only to "challenge the prevailing American view that the judiciary is the institution primarily responsible for defining the reach of constitutional rights" but also, and more importantly, to be incompatible with founding era theory and practice. (41)
In this section, we consider the role of the legislature in the American tradition and, especially, the relative contribution that legislatures and courts have made to rights protection over time, arguing that the American historical record does not undermine the obvious proposition we defend. The American experience helps confirm the importance of legislated rights and the risks of what, in Legislated Rights, we call the received approach to the adjudication of rights claims against legislation. The comparative experience of other common law countries, especially Australia, Canada, New Zealand and the United Kingdom, provides further support.
The Founders of the American constitution, Olree maintains, (42) saw the legislature as a standing threat to the rights of citizens, in need of constant restraint, not because legislators are monsters, but because legislators are ambitious human beings. The Founders sought to pit ambition against ambition, arming institutions to check one another's excesses, including by way of judicial review to uphold constitutional limits. It seems to us that the Founders took the legislature to be the strongest branch of government. They sought to restrain its excesses first by dividing it internally, generating a political dynamic between House and Senate and the people, and second by conferring on the Congress only limited powers. Enumeration was to be the main legal means of restraint, supplemented by a handful of rights specific enough to constitute legislated rights. While the first Congress helped to introduce the Bill of Rights, there are reasons to doubt that there was a settled founding-era commitment to judicial enforcement of the Bill of Rights as a bulwark against majority tyranny. (43)
The Founders largely failed to anticipate the rise of party government. They overestimated the capacity of the legislature, in the absence of coherent executive leadership, to act decisively and they weakened the legislature's agency by way of its internal division and separation from the executive. The authority of the executive, including effective lawmaking authority, has expanded over subsequent centuries, mostly with congressional acquiescence. (44) The resulting scheme of government is quite different to the vision of the Founders. This is not necessarily a criticism, either of the constitutionality (legality) of the resulting scheme or of its capacity to enable good government and self-government. We take no view on this matter. Our point is that there are reasons to question the Founders' understanding of the legislature, especially as a guide to subsequent constitutional practice, and in evaluating lawmaking in the United States one must, as Nourse makes clear, consider executive and legislature together. The same is true in the United Kingdom, of course, for Parliament exercises its capacity to change the law by way of the leadership of the Government, which sets the legislative agenda. (45) Our book abstracts from some of this institutional detail, but see section IV below.
The Founders also failed to anticipate modern human rights adjudication, in which rights inflation and proportionality are central. (46) They envisaged legislatures restrained by the limited enumeration of their powers, restraint that might not even require judicial intervention. Some may have anticipated that the Bill of Rights would involve judicial enforcement of law, rather than a generative grant of (negative) lawmaking authority. (47) This idea continues to have force in American legal thought, but often in the breach, with subsequent judicial practice departing routinely and sometimes radically from enforcement of the terms of the constitutional settlement. (48) The Founders' theory of institutional motivation, and understanding of constitutional order as a mechanism to frame self-interested behaviour, has an obvious connection to public choice theory. This theory perhaps has more force in the United States than elsewhere, with the theory helping to summon the practice, but even here it is, with respect, a radically deficient account of agency and action. (49)
The understanding of legislative motivation and institutional design that Olree gleans from his study of founding era theory and practice are neither sound nor a reliable guide to subsequent American constitutional practice. Contrast the way in which Abraham Lincoln understood the threat judicial supremacy posed to constitutional self-government, an understanding made vivid in his First Inaugural. (50) The pre-civil war era confirms the risk of courts protecting an unjust regime against political authorities bent on reform. (51) The post-civil war settlement, which Olree discusses briefly, (52) confirms that the constitutional means for correcting injustice may well be positing rights and arming Congress to legislate to enforce them. This may not be the standard means of articulating constitutional rights in the American scheme, but it is striking that in addressing the most salient injustice in American history, this was the chosen means. Olree takes Congress in this context to be acting like a court, but this rather begs the question. (53) The structure of the Fourteenth Amendment is explained by the need for a politically accountable national assembly to specify by legislation what should be done. In a federal scheme, there is nothing odd about a national (federal, central) legislature having authority, per the constitution, to enact law that takes precedence over state (regional, peripheral) legislation. It is certainly no part of our argument that each and every (or indeed any) legislature in a federal compact should have plenary power. American courts have subsequently turned the Fourteenth Amendment into an open-ended grant of judicial power to quash any public act, whether of state or federal government. This transformation of the amendment confirms the risks of judicial usurpation; it is scarcely obvious that it was required in order better to protect rights. Indeed, the American record in relation to racial justice and socio-economic justice is to the contrary.
The historical record in relation to racial injustice is important, not only because of its centrality to American history but also because it is something of a paradigm for assumptions about the inadequacy of political processes and the indispensability of rights adjudication. The paradigm is false, as our book argues and as Nourse also powerfully makes clear. (54) The courts have often been the site of resistance, sometimes effective, to political action, by way of Congress and the Presidency, to protect minority rights. Jim Crow laws were a form of localised majoritarian tyranny, within the particular states that adopted them, overridden and reversed by national political majorities and their institutions. Notwithstanding Brown, the courts often lent aid to those seeking to resist reform, holding back political efforts to correct injustice. The political authorities eventually overcame this resistance, but not without major delay and political cost.
Contrast the United Kingdom, in which Parliament abolished first the slave trade and then the institution of slavery itself within the British empire, introduced various protections for racial (and other) minorities, and has also provided a standing means for social, economic and political change. In New Zealand, the combination of a legislature with plenary authority and an indigenous minority (the Maori) has not resulted in a record of majoritarian tyranny. Political processes in New Zealand, to which courts have been marginal, have on the whole resulted in decent treatment of a racial minority. This is not to say that New Zealand, still less Australia or Canada, has an unblemished record in dealing with indigenous peoples. However, the record is one of political authorities over time taking responsibility for the common good, including for correction of past injustices, and being open to reform, including in response to mass political agitation.
Australia, Canada, New Zealand, and the United Kingdom have not traditionally looked to courts to protect minorities against majoritarian tyranny. Instead, the British model has put its faith in in self-government over time by way of representative institutions nested in a mature political culture. Much turns on local political conditions, no doubt, but the British model clearly has a better record than the American model when it comes to slavery, segregation and racial justice. The history of the common law world, not just practice as it stood in the late eighteenth century, is important and shows that reasonable, decent government, which does not descend into public choice nightmare or majoritarian tyranny, is possible--indeed more likely--without modern American-style rights adjudication.
The point is not limited to racial justice, as Nourse's discussion of workers' rights and the Lochner era makes clear. (55) We agree with her that courts stymied legislative attempts to secure the common good, often frustrating legislated rights. Pace Olree, we do not claim that the legislation invalidated by the courts clarified constitutional rights. Legislation about worker safety and industrial relations was not required by the Constitution, or by the Bill of Rights in particular, but neither was it forbidden. The courts acted wrongly in holding that such legislation was constitutionally proscribed. More importantly, for our purposes, it seems clear also that legislatures often acted rightly in reasoning about the requirements of the common good, introducing into the law rights that gave effect to those requirements and did justice between employers, employees, and public. This was a reasonable exercise of legislative authority, not only across the decades when the political authorities faced resistance from the courts, but beyond. In Britain, legislation to protect workers in the early twentieth century also faced judicial resistance, by way of statutory misinterpretation. (56) This resistance was overcome by consistent legislative effort supported by mass political action. The Lochner era confirms the fact that the political authorities may conscientiously reason about and act for the common good, choosing to specify rights in reasonable ways, and that courts may be the foes of rights and justice, despite rationalising their action as defence of the rights of others. Unsurprisingly, judicial reasoning about rights is sometimes simply defence of the privileged. This is not a marginal case--neither is racial injustice--but a decades-long failure in relation to core social policy. And our point, to repeat, is not just that American courts behaved badly but that legislatures acted well.
We welcome Nourse's argument about the neglected history of American rights protection and the vital importance of political action, by way of representative institutions, to this end. (57) She argues that our work chimes with Eskridge and Ferejohn's argument about de facto entrenchment of landmark statutes. (58) We agree--up to a point. The merits of any particular program of legislation and policy will of course be controversial, but it is true that social life often forms around some program, with widespread political support making the legislated rights in question stable. This is not to foreclose the possibility of the legislature undoing some program, or overhauling it radically, perhaps by way of deregulation or by introducing a different model of social order. The point is that political dynamics may well, and often do, give rise to specified rights and constitute the political equivalent to legal entrenchment. The legislature remains responsible for the adequacy of the rights that are in force, save to the extent that constitutional law disables them from such.
Modern American courts may have largely retreated from their earlier campaign to frustrate legislative and political efforts to establish racial equality and to protect social and economic rights. However, they have hardly been idle since the Lochner era, often aggressively applying a controversial understanding of political liberalism which sweeps away reasonable enactments for the common good. (59) We take no view on the various controversies about abortion, immigration, or religion which fall for decision by legislatures and courts, but evaluation of the judicial record should be subtler than simply plumping for the body whose preferences conform to one's own. Enthusiasm for rights adjudication over legislative deliberation and decision is often simply power politics. This is not apt to maintain political legitimacy and is not a stable state of affairs. (60) It should be astonishing--it is to us as non-Americans--that the question of judicial appointments is often the central question on which presidential (and sometimes senate) elections turn. We do not mean that this is an irrational calculus, but rather that something has gone seriously wrong in the design of one's institutions when the election of a President is simply a means to choose the marginal voting member of the court.
There is an asymmetry between legislative and judicial action to protect rights. The asymmetry is not, as Olree argues, (61) that the courts are a checking institution, such that their mistakes are less momentous and dangerous than legislative mistakes. On the contrary, judicial action may frustrate efforts to correct injustice or may require novel, unsound action. Legislation will often, for obvious reasons, be controversial. But the legislative process is structured precisely to make it possible for subsequent legislatures to amend or repeal such legislation. It is wrong to take judicial invalidation of unjust legislation as evidence of the virtue of courts; the alternative might very well have been, as in the British model, legislative reform. Note that legislative decisions are much easier to change than judicial decisions about the validity of legislation. The legislature is structured to consider whether, in light of changing facts and arguments, the law should now be changed. There is a very real risk, as the American record in relation to racial injustice and Lochner makes clear, of injustices being entrenched, by way of judicial action, for generations. A bare majority on the Supreme Court may remake the law in its image, which may be very hard to reverse, especially if or when subsequent courts strive for continuity with past law. There is an asymmetry, as John Finnis has noted, (62) between "conservative" and "reforming" judges, with the former often making peace with the radical innovations of the latter, such that adjudication over time resembles a ratchet. Not so with legislatures, where contestation is ongoing, and where no victories are permanent, even if one makes changes that are for now widely accepted.
In company with Nourse, Clinton and MacLeod, we argue that the American record does not establish that courts are better placed than legislatures to protect rights. Legislatures have been indispensable to rights protection in the United States and courts have often been an obstacle. In evaluating the American record, the relevant comparators are not, as Olree suggests, (63) the Soviet Union and its puppet states, in which legislatures were the tool of the Communist Party and in which democratic participatory politics was non-existent. With respect, that is not a reasonable comparison. Much better, as we say, to compare other common law countries, which share a common history and culture and broadly similar social conditions. The experience of the United Kingdom, Australia, Canada (especially before 1982), and New Zealand is important. Even if one looks further afield, say to the experience of Western and Northern European countries, which are also democracies with relatively stable politics, American-style rights adjudication is an outlier. True, the German model owes something to the American exemplar and has been influential and the European Convention on Human Rights likewise, which is why, pace Nourse, we pause before speaking of the European and British traditions as one. However, at a minimum, the American constitutional scheme is not the only way of governing well. Indeed, there is much to be said for alternative forms of government in which courts have markedly less power.
IV. LEGISLATED RIGHTS AND CONSTITUTIONAL STRUCTURE
We argue that the legislative assembly is a type of institution structured to be capable of reasoned choice about how to change the law to secure human rights and thus realise the common good. The legislature's capacity turns partly on its internal structure and especially on its relationship to the executive, about which our book arguably says too little. We note the importance of party leadership and legislative office in making coherent lawmaking possible and note also the relationship between legislators and government in parliamentary systems. (64) In the British model, the government is formed by the subset of legislators who enjoy the confidence of a majority of their colleagues, and are thus able to secure support for legislation and taxation. The government has to cultivate this support over time, and defend its policy choices within Parliament. The opposition contests the government's choices and aims to fracture its support coalition, but aims in particular to present itself to the country as a credible government in waiting. (65) Legislators and government are mutually dependent and work together, or the government fails. The government is bound by law, but the legislature, which the government leads in legislative action, is free to change the law, subject, in Australia and Canada at least, to constitutional limits on legislative competence.
In the United States, legislature and executive are of course wholly separate institutions, and the federal government is distinguishable also from state governments. At the federal level, Congress and the President share responsibility for lawmaking change, not only because of the executive veto but also because lawmaking calls for information and coherence of the kind that the executive is best placed to provide. Relatedly, Congress has delegated considerable lawmaking authority to the executive, on the premise that the President and agencies are better able to make and remake legal rules that are necessary to regulate particular areas of social or economic life. The extent to which Congress delegates lawmaking authority is controversial. However, the trend is a rational response to the truth that reasonable lawmaking requires information and capacity to act. Our argument about legislative responsibility and capacity is consistent with lawmaking capacity being exercised jointly by Presidency and Congress. We do not discuss executive lawmaking in detail, (66) but provided that it is subject to primary legislation and overseen by the legislature properly so-called, we suggest it does not trouble our account but rather complements it. (67)
Nourse argues that the separation of executive and legislature explains why American judges understand rights to be subject to state infringement, which it is for courts to evaluate. (68) Her argument is that the competition between executive and legislature for electoral power makes it very difficult for the branches to cooperate and act. Unlike a parliamentary system, it is difficult for the political authorities to unite around a program of action, including rights protection. The high cost of political action entails relative legislative incapacity, which means that:
just as it very hard to do anything, it is particularly hard to undo accepted social practices--or embrace rights--inconsistent with the status quo. This explains why rights tend to be consolidated over extremely long periods of time in American history. (69)
This is an intriguing argument, as is its entailment, namely that the Supreme Court is a majoritarian and a counter-majoritarian institution, which proceeds by questioning the justification for the status quo and effectively intervenes to consolidate changing majority opinions. (70) The risks to the Court are that it may miscalculate, getting too far in front of majority opinion and thus exposing itself to political attack, as may have been the case with its abortion jurisprudence.
It is interesting, we think, that Nourse's first example of the slow consolidation of rights are child labour laws, where, as she says, the institution that provided the brake was the Supreme Court. (71) Her second example is desegregation of the military, which she explains was led by the Presidency but was not finally entrenched until two decades later when Congress and Supreme Court came around. (72) These two examples suggest, we say, that the judicial role may be as much an obstacle to the legislative vindication of rights as is the difficulty of uniting executive and legislature in common cause. In view of her bracing review of the historical record, Nourse may agree. We read her as suggesting that the Supreme Court has to assert itself as a counter-majoritarian institution if it is to remain relevant, but has to exercise self-discipline lest it invite a political backlash. (73) This may explain the intellectual structure of American constitutional rights adjudication but it does not justify it. Litigation saps political energy and directly incapacitates the political authorities. (74) The rise of the legislative presidency would seem a partial, if incomplete, response to the problem of relative legislative incapacity, which Nourse explores. We agree with Nourse that any study of institutional dynamics must be alive to considerations of this kind and neither our book nor this article anticipates their full discussion. Rather, we aim to articulate an understanding of institutional arrangements that in a healthy polity would help secure the common good.
Olree objects that our understanding of the responsibility of legislatures would entrust to the legislature itself the judgment about what rights require, whereas, per the Founders, this should be the function of an independent body, which would enforce rights against the legislature. (75) The alternative is that the legislature is judge in its own cause, the fox guarding the hen house. (76) This is a familiar objection and one that we address in our book. (77) It misconceives rights adjudication and the legislative process. It may be a misconception that resonates with American constitutional structure; it has less purchase on the British constitutional imagination. The legislature is an institution with authority to decide what the law should be; it is the forum for public deliberation about how that authority should be exercised. It is subject to limits, which the idea of human rights helps to articulate. Part of its duty is to reason about what should be done, both to avoid breaching human rights and to secure human rights, for rights are not just side-constraints on action for the public welfare but help form the common good. The legislative assembly makes it possible for us to reason together about lawmaking, about what we owe in justice to one another. It is not a party to a dispute, which somehow gains an unfair advantage by having authority to decide. Rather, it is the site of, and the agent formed by, joint reasoning and decision. (78)
In some times and places, as we say more than once in the book, (79) there may be a case to be made that the legislature is likely to be subject to pathologies that warrant hard-edged legal restraint, enforced by courts or some other institution. As we review in section V, recalling the discussion in the book, (80) the merits of such restraint are conditional. They bring with them their own pathologies, or at least severe risks, first amongst which is that the restraint will displace or distort the legislative function. None of this is to say that legislative power should be unchecked. The question is how it should be checked. It is not unreasonable, as in New Zealand and the United Kingdom, to grant plenary legislative power to some institution, the decisions of which will truly settle what the law shall be. That institution may nonetheless be checked, as the Westminster Parliament is, by internal political dynamics (bicameralism, opposition, government coalition), external political dynamics (its relationship with the people), as well as a common political culture and constitutional conventions. Further, the institution is widely recognised to be responsible for the justice of the law and constitutes the centre of democratic politics accordingly.
While the focus of our book is on the legislature, and there is more to say about the executive, we do not neglect the courts. We discuss the prevailing ideas about human rights and legislation that inform much judicial thinking, noting also some dissenting views. Senior judicial figures throughout the common law world have taken our thesis very seriously, recognising that it provides an important corrective to common misconceptions in this field. (81) The book reflects on judicial power, sketching in part the place that judges should occupy in a healthy constitutional order, while discussing also the use of judicial review as a second-best corrective. Judges have a strategic role to play in securing the rule of law, standing ready to uphold settled law, including specified rights, and adjudicating fairly disputes about their application to the facts. This is a vital contribution to the project of securing human rights, but it is not the same contribution the legislature makes. Indeed, our book argues that the legislative specification of human rights is an invaluable aid to courts in discharging their constitutional function, protecting them from the vagaries of unbounded adjudication, in which they are exposed to risks and temptations. (82) Thus, we do not accept Olree's criticism that our work ignores the central case of courts or in some way diminishes judge-craft. (83) We have a different understanding of good judicial action, which stresses the importance of courts helping to maintain the virtues of law, which centres on continuity over time. Relatedly, our aim is not to quarrel with particular interpretations of constitutional materials, in this or any jurisdiction. Instead, we outline a theory of institutions in which the courts do not enjoy primary responsibility for making the choices that secure human rights. This is not to downplay the importance of courts, but it is to put them in their proper place within "the constitution entire", to recall Nourse's welcome turn of phrase.
Adjudication should not be lawmaking by another means. The duty of judges is to adjudicate disputes fairly in accordance with law. They must ascertain the legal propositions that apply to the case in question. Olree maintains that our definition of legislative reasoning is so broad that it leaves no room for judges to be other than machines. (84) No, but we do take judges to have a very different task to legislators, for the latter have responsibility for reasoning about and choosing authoritatively what the law should be. The former must understand acts of legislation, inferring the legislative intent in this enactment and understanding its legal effect in light of other valid propositions of law. This may be straightforward or it may be controversial and the judicial application of otherwise vague norms may involve an exercise of discretion which itself has lawmaking consequences. But this is interstitial and subsidiary, with judges who know their duty rightly eschewing any function analogous to legislators. (85) Olree argues that interpreting vague positive law involves peculiarly legal, technical skills. (86) We agree that legal reasoning is technical reasoning, that judges ought to infer the intended meaning of lawmaking acts and must sometimes exercise discretion when those acts do not specify what is to be done. However, it does not follow that for judges to choose three-term rights is simply ordinary legal reasoning. Indeed, with Timothy Endicott and pace Olree, (87) we note that discretion in the face of vagueness is not legal reasoning, but what comes after legal reasoning. In some contexts, there are reasons to enact vague propositions, which might thereafter be specified by officials (whether executive agencies or judges). This may be wise legislative action, if the legislature retains continuing authority to revise and overrule the specifications in question. It is not obviously a good framework for demarcating the bounds of legislative authority itself.
The courts have a role to play in upholding constitutional law, including limits on the competence of legislatures. However, Olree conflates constitutional limits, especially legal limits, with constitutional rights. The latter are not entailed by the former. And the latter need not be open-ended and generative, inviting and requiring further lawmaking choices by judges before they mark out legislative competence or authoritative legal rules.
V. SCEPTICISM ABOUT JUDICIAL REVIEW
The question of judicial review animated some or much of the commentary by Nourse, Clinton, and Olree. Nourse identifies one the book's "major claims" to be that "courts should avoid the specification of rights by judicial justification", by which she means the justification of infringements of underspecified rights. (88) This claim is captured, with overlapping emphasis, in the third and fourth thesis/counter-thesis pairings outlined above and is the subject of analysis in much of the book. Our critical argument on this point, Nourse says, defies "conventional American wisdom" (89) and, as the book otherwise documents, it defies much non-American wisdom as well. (90) Nourse reads our argument as amounting to a claim that, though we "do not come out and say it", we (the collective authors) "appear to be skeptics of judicial review, along the lines of Jeremy Waldron's well known work identifying the "core case" against judicial review". (91) She also reflects that "the real point of this book [may be] to justify a system without judicial review, or at least one with a minimal form of judicial review". (92)
Olree arrives at a similar conclusion. He includes Legislated Rights among a list of critics who "oppose judicial review altogether" (93) and attributes to the book "the suggestion that judicial review is either overused or altogether unnecessary, because legislatures can define the proper scope of rights better than courts can, even as to those negative fundamental rights intended to limit legislatures themselves". (94) He notes our argument that there is no inconsistency between "the theory of legislated rights defended in this book, including... the claim that legislatures have primary responsibility for the specification of human rights" and the practice of judicial review under a bill of rights, but thinks this is "somewhat confusing." (95) On the whole, he concludes that we are "dissatisfied with judicial review as it is currently practiced in the United States (among other places)" and that we "advocate either using it less or abolishing it altogether". (96)
There is some truth in what Nourse and Olree say, but it is Clinton who best captures the position of Legislated Rights on this long-standing question of constitutional theory. He notes that the question of judicial review is raised for the first time in the book's concluding chapter and reports the equivocal answer there offered: "since judicial review is not an "unqualified good," but "creates risks that unjust and otherwise suboptimal decisions will be made in a political community," it "is not necessarily a sound response to the risk of non-central cases of legislating."" (97) The argument in Legislated Rights is developed across the first five chapters without any firm focus on judicial review, though much that is said there is relevant to the question of judicial review. (98) The focus there is on developing an account of rights, of law, of legislatures, and of the relationship between them. It is only in the book's final two chapters that the question of judicial review is explored at length. Chapter 6 reviews how the adjudication of human rights law is facilitated and aided, not frustrated or obstructed, by positive law, including by legislation that provides direction to courts to resolve claims of rights. Here, Nourse is correct to observe our deep dissatisfaction with the dominant method employed by courts in human rights adjudication, a method often labeled "proportionality analysis". We criticize that method for its weak conception of rights, for inviting the court to engage in empirical and moral evaluations for which it is institutionally ill-equipped to undertake well, and for its misconception of the common good, among other reasons. But, despite confident proclamations by some defenders of this method, we do not think this method to be a "defining feature" or a "taken-for-granted feature" of human rights adjudication. (99) Our criticism of this method is no ground for concluding that we criticize judicial review as such.
The book's final chapter squarely confronts the question of judicial review and does so by recognizing, as its organizing premise, that "[n]ot all legislative activity conforms to the central case of legislation that is awarded explanatory priority throughout the book". (100) The chapter's argument resists the conclusion that if the legislature fails to confirm to the central case, therefore judicial review should be introduced to correct the failing. The inference is invalid, we argue: "one must attend not only to the problems that judicial review is expected to solve, but also to the problems that it is liable to create." (101) Legislatures are not the only institutions liable to pathologies, and the chapter reviews some pathologies of judicial review. The reliance on such pathologies in the exercise of judicial review is not to play up the central case of the legislature against non-central examples of the judicial branch. Comparisons of the central case of one institution against the non-central case of another are misleading and, in truth, no comparisons. The frame of analysis in chapter 7 of the book is the non-central legislature and the non-central aspects of courts, all with a view to offer a true accounting of the considerations for and against judicial review. As reported in the book's final page, the chapter's invitation is to offer "some counter-balance, some reasons that invite the choice to be made in appreciation of the risks associated with judicial review". (102) In its own way, therefore, the invitation of the final chapter is to develop, as Nourse rightly counsels us all to develop, a richer understanding of "the constitution entire".
The book harbors no secret agenda on the merits of judicial review. When the question of judicial review is squarely confronted in Legislated Rights, it is framed as a question that escapes a general answer, but that can be answered in relation to the constitutional arrangements of a political community of a time and place. Our approach to this "great question" finds an unlikely ally in Ronald Dworkin. In his final reflections on judicial review, his answer to the question whether "unelected judges [should] have the power to deny the majority what... its duly elected representatives have enacted" is the same as our own: "not necessarily". (103) Unlike representative government, which Dworkin affirms "is indeed necessary" if a "large political community is to survive and prosper", the case for judicial review is contingent: "large nations have survived and prospered without it, and some still do". (104)
For Dworkin, the case for judicial review "must argue that judicial review improves overall legitimacy by making it more likely that the community will settle on and enforce some appropriate conception of negative [and positive] liberty and... a fair distribution of resources and opportunities". (105) The success of this argument in any given political community "obviously depends on a host of factors that vary from place to place", and Dworkin points to some of relevance, including the character of the constitution, the community's commitment to the rule of law and respect for individual and minority rights, and the independence of the judiciary. (106) Dworkin's overall assessment of the case for judicial review by the US Supreme Court depends on the time horizon: judging the Court on its record "during the last few years", he would "judge it a failure"; on a longer evaluation of its "historical impact", the "overall balance" is "positive". (107)
Dworkin's arguments on a range of constitutional questions are explored and criticized at various points in Legislated Rights. We challenge his dual forum thesis, which divides institutional responsibility for policy and principle between legislature and court. (108) We challenge his conception of the legislature as a utility maximizing machine. (109) And we criticize his conception of rights, as failing to amount to "trumps" despite the label awarded to his theory of rights. (110) But on the question of judicial review, it is significant that, despite our different conceptions of legislatures and rights and much else, Dworkin and we conclude that the case for judicial review of legislation is contingent. The case for such contingency is, we suppose, even stronger if the "host of factors" Dworkin appeals to is expanded, to include democracy and self-government (or, contra Dworkin, proper understandings thereof).
Thus, we do not, pace Olree, aim to "justify any particular change" (111) in any specific jurisdiction (e.g. the United States) at any given time (e.g. now or at the Founding). No part of our argument undertakes the sort of thoroughgoing evaluations that would allow us, for example, to assent confidently to Dworkin's conclusion that the record of the US Supreme Court over the last few years speaks against the institution of judicial review. No part of our argument advocates for "enhancing the authority of legislatures (and reducing the authority of courts) for defining the scope of fundamental rights" and we do not "tell" our readers "to trust legislatures more than courts". (112) Nor do we claim that "giving legislatures more power over defining the scope of human rights is necessarily a sound response to the risk of non-central cases of adjudicating". (113)
As MacLeod rightly reads us, "[t]he book does not proffer a normative argument about the proper balance of powers between legislative and judicial", though we agree, with MacLeod, that "it certainly has normative, constitutional implications". (114) Our focus throughout is as MacLeod aptly summarizes: "to reframe a clear picture of how a properly-constituted and well-functioning legislature responds and adds security to human rights". (115) Perhaps it suffices to reply to Olree's concern that the book is advocating for a change to US-style judicial review to say, as MacLeod rightly says, that Legislated Rights "argues that legislatures are competent to specify rights, not that they should have exclusive jurisdiction over any class of rights". (116) So, there is no "mystery" in our denial of the claim that there is, in abstraction from any jurisdiction of any given time, "an overall balance sheet of competing risks that can be drawn up so as conclusively to make the case for or against judicial review of legislation". (117) As Olree reports, the Founders took the view that experience with colonial and state legislatures favoured introducing judicial review in the US Constitution. And, as reviewed above, Dworkin, looking to recent US Supreme Court decision-making, would draw up a different balance sheet. The judgments here are different and their consequences for a political community will be great. But they are, we argue in Legislated Rights, situated judgments and, as we aim to show in the book's concluding chapter, judgments made all the more reasonable if certain misleading theses about rights, legislatures, and legislation are corrected and if certain risks of pathologies in the exercise of judicial review are held in view.
Olree recognizes that "[a]ny checking institution may make mistakes" and we agree with him that such risks do not suggest "that the check is not necessary at all". (118) However, we pause when he appears to suggest that the mistakes of a checking institution do not establish that it will do "more harm than good". (119) We believe that conclusion to be contingent, for reasons reviewed in section IV. Olree may well agree, as his argument proceeds to show why judicial review in the US has not done more harm than good. He argues that while US courts have failed in their checking function, "many of these failures... simply upheld earlier abuses by the legislature". (120) Without questioning his statistical count, we would suggest that a complete judgment here would also invite an evaluation of how a US Supreme Court decision is liable to solidify the abuse of the legislature, perhaps settling in the mind of some members of the public its justification, thereby complicating the case for repeal. Olree further argues that "[t]he only examples of judicial failure that can count [against judicial review] would have to be cases in which the courts voided legislative enactments that are universally recognized today as having actually protected human rights". (121) We do not agree. There is no basis, we think, for abandoning one's own judgments of right and wrong to consensus. Such consensus may be necessary and strategic for any number of purposes, especially in politics, but its presence or absence is irrelevant to claims of truth. What is more, while judicial invalidation of rights-protecting legislation is indeed one way of evaluating whether judicial review does more harm than good in a given political community, there are other, subtler considerations in play. Among these are practices of judicial review that misrepresent the common good, misrepresent the value of rights, and, as Clinton puts it, deny that "anti-perfectionist liberalism is far from being the only morality that can be justified by reason". (122) The effects of such misrepresentations may well be difficult to trace and evaluate, but they are part of the sound assessment and judgment of judicial failures.
VI. WHAT OF OPPRESSIVE "RIGHTS" LEGISLATION?
The argument in Legislated Rights is forthright in recognizing that legislatures "sometimes fail to protect the rights of minorities and sometimes oppress them". (123) No part of our argument denies the truth that "those with power will sometimes yield to the temptation to abuse it". (124) So, when Nourse devotes Part III of her comment to the problem of the "legislative monster", she is not overlooking our ready recognition that there is a long list of non-central instances of legislation, including instances made non-central by the legislature's failure to secure rights. Rather, Nourse is inviting us to explore a question left unexplored in Legislated Rights, namely this one: "what if legislatures act in the name of a "right" that is in fact monstrous?" (125)
The use of quotation marks around the word "right" in her question signals that the "right" enacted by legislation is no true right. Nourse explores the worry that the "legislative specification of rights" includes "the potential that rights can be perverted and injustice clothed within the notion of right". (126) Her example is eugenics legislation adopted by American states in the nineteenth and twentieth centuries. The example communicates not only an obvious example of oppressive legislation, but oppressive legislation that was, at the time, "justified in the name of "right"," principally "a "public right" to be free from a society burdened by individuals who required excess resources and polluted the gene pool", but also an "individual right" insofar as it was said to be "not fair to the individual to perpetuate disability". (127) The claim that eugenics legislation was rights-enhancing was shared not only by some scientists and lawyers, but also by judges, including members of the US Supreme Court. (128)
Nourse invites us to reflect on whether our argument for a "three-term right" or "the legislative specification of a right" solves the problem of oppressive legislation. (129) We agree that it does not. Indeed, we agree with her that the episode is a reminder that "no institution is entirely reliable". (130) However, our account of the legislative specification of rights, of which the three-term account is an integral part, does allow us to say something more.
In formulating our central case of the legislature and of legislation, we argue that legislative action consists in reasoned deliberation to promote the common good, which has as its concern the wellbeing and rights of all persons in community. This is the first of four counter-theses outlined above. Sound legislation does not oppose human rights, but rather affirms the requirements of human rights, including by specifying the broad, goal-oriented standards included in human rights instruments into relatively precise legal form. This is our third of four countertheses. Taken together, these claims support what MacLeod finds "just below the book's analytical rigor", namely "the perspective, manifestly share by all of the authors, that rights are oriented toward the common good". (131) MacLeod adds this: "predicating rights on the common good is the way to understand why majority factions owe an obligation--a moral obligation--to secure the human rights of minorities". (132) We agree and believe that this informs what more can be said about Nourse's example of monstrous legislation clothed in the language of rights.
The failure of legislation that claims to be rights-enhancing when, in truth, it violates rights is not merely the failure to respect rights. That failure can be evaluated even if one thinks, as many do, that legislatures are utility maximizing machines, with no responsibility for rights. As we argue in Legislated Rights, the failure of legislation that falsely claims be rights-enhancing is the failure to do the work of legislation: to affirm the requirements of true rights, including by specifying rights into relatively precise legal form. It is a failure "internal" to the legislature, in the sense that the standard for criticism does not "come from outside", as when one concludes that the legislature has violated rights without believing that the legislature has any responsibility not to do so. As we argue in the book, such failures are best understood and appreciated for what they are: 'failures to be what the legislature and legislation are supposed to be." (133) So, Nourse's example of monstrous legislation is, we think, a welcome example that affirms the thought formulated by Clinton and quoted above: "pathology is best understood as a reminder of the good from which it deviates". (134) Monstrous "rights" legislation is not only legislation that is monstrous, it is legislation that fails, radically, to be what legislation is to be.
VII. LEGISLATED RIGHTS AND COMMON LAW
The main legal means by which human rights are and should be secured in law is, we argue, ordinary legislation rather than rights adjudication. This argument is not intended to downplay or obscure the importance of executive action in securing human rights, which includes but extends beyond action to uphold and implement legislated rights. Likewise, it is not intended to downplay or obscure the importance of judicial power, which is vital if disputes are to be adjudicated fairly and if legislated rights are to be vindicated in practice. One might infer, however, that our argument privileges legislation over the common law, taking the former to be peculiarly apt for securing human rights. To some extent this is true, but it requires careful exposition and should not be overstated.
Rights may be given form and content not only in legislation but also in common law rules, which to that extent are legislated rights. (135) However, legislation has particular advantages as a source of law, which turn in part on the advantages of the legislature as a lawmaker. In this section, we consider further the relationship between legislated rights and common law and address MacLeod's powerful argument that:
the authors of Legislated Rights, fail to contend with the strongest arguments in favour of the role that natural rights, customary rights, vested private rights, and other pre-positive sources of legal obligation must play in specifying civil rights, and which impose limitations on legislative power as a matter of legal justice. (136)
His argument is that the legislature is a vital part of the apparatus of civil rights. He argues further, against our counterthesis four, that the legislature is not capable of specifying rights in a form that is truly indefeasible. (137) In other words, there is a continuing role for natural rights, customary rights and vested rights. The relationship between legislation, custom and common law is important, and we say more about it below, seeking not to banish common law or custom from legal analysis, but to reject the idea that human rights are defeasible by way of an open-ended proportionality test.
MacLeod argues that our inattention to non-legislated rights "makes the legislature seem more indispensable than it is in fact". (138) He concludes that "[t]he legislature is indeed a vital institution in rights discourse and security" but argues that we place more responsibility on the legislature that it can bear, wrongly presenting it as "the source of rights". He acknowledges that we "insist that at least some rights have normative force apart from legislation" but counters that we say too little about this possibility and the weight of our argument overlooks the function of other rights. There is some truth in this charge and our argument would, we think, have been strengthened had we discussed in more detail the relationship between legislated rights and other rights. That said, we do discuss the difficulty of embodying Hohfeldian liberty rights in legislation, noting that the appropriate legislative technique is often to recognise, and to draft to avoid disturbing, an unarticulated right. (139) Likewise, we also argue that:
In many areas legislation was enacted so as to embody a prior set of common law rules, and in some instances core rules were left intact as common law while legislation was adopted to shape and frame surrounding rules and exceptions.... In a few areas of law, the common law still predominates over statutory supplements. (140)
But the passage does goes on to argue that legislation is generally better suited than common law to realise the rule of law and that the judge's capacity to change the law is limited by his or her duty to apply the law and that he or she may change the law in ways that the parties may not have foreseen. MacLeod's response is to note, first, that parties routinely exercise common law powers to create new, specific rights and duties and, second, that legislation is often intended to slow or prevent such change. This is an intriguing argument. The first limb is consistent with our claims about legal validity and legal powers in chapter 3, (141) but does not address the problem that arises if the judge changes the law in adjudicating a dispute about the law the parties made. The second limb is also important and we agree. It may be that the legislative act runs contrary to the expectations of the parties, retrospectively changing their rights and duties. This may be a responsible exercise of legislative power--MacLeod notes some examples and says there were good reasons for them--and it scarcely refutes our claim about the general aptness of legislation to secure the rule of law. The responsible legislature might tolerate extensive common law innovation, by private parties and common law judges, standing ready to intervene when necessary. We have our doubts about the adequacy of common law to handle a range of new problems, but others may differ.
MacLeod's more serious charge is that our argument takes aim at a caricature of the common law. Noting our concerns that common law has no canonical linguistic form and that the judge is both law-applier and potentially law-maker, MacLeod counters that "[t]his straw man collapses easily, but he bears little resemblance to the common law described and applied in real cases by Coke, Hale, Kent, and Story." (142) Our response is to note that there is more than one account of the common law in play, and MacLeod's distaste for legal realism, which we share, does not entail that the classic account remains dominant. Common law lawmaking is a side-effect of adjudicating disputes between particular parties. It may be more or less principled, coherent and disciplined. But it has significant limitations as a main source of law, especially in view of the extent to which many apex appellate courts in the common law world understand themselves to be free to remake law in the course of adjudication. Again, legislation often builds on, complements, and overarches common law rules. Our point is that there are advantages to the legislative form and to the legislature's structure, which make the legislature well suited to make law. More importantly, we deny that the common law method, working well as it sometimes does, informs or justifies modern rights adjudication, in which courts work out from inchoate two-term rights guarantees by way of the doctrine of proportionality, and in which specified rights largely slip out of view.
Nothing in our argument is intended to deny that there are natural rights that the legislature should recognise and which legislation cannot legitimately flout. Indeed we contend that the legislature is obligated to protect and promote human rights (for many purposes a term equivalent to natural rights), which lie at the base of the legislature's legitimate authority. Likewise, custom is a source of law and the legislature should often support, tolerate or protect customary arrangements. The legislature's importance in the project of securing human rights does not entail that the legislature is radically free to choose what rights should be. The legislature's authority is to choose for reasons, the adequacy of which fall to legislators and the people to decide.
MacLeod agrees with much of our argument about the relationship between rights and legislatures but argues that our fourth counter-thesis is "superfluous". (143) His claim is that legislation is not capable of specifying rights in a form that is indefeasible, partly because legislating relies on common law propositions. His examples include the dynamic relationship between statutes and common law, in which statutes contribute to common law reasoning, as well as common law liberties, such as mens rea requirements, which will be guarded against legislatures. Some statutes have the former character, although in English common law this is increasingly of historic significance only. (144) The latter phenomenon, however, is not a function of common law being preserved against the legislatures, but of legislation being enacted against a shared background.
More fundamental is MacLeod's argument from Aristotle's theory of equity, which he says "frustrates any attempt to understand legislation as complete law". (145) The claim is illuminated by way of discussion of Riggs v Palmer. (146) We do not discuss this case in our book, but one of the present authors discusses it, and cases like it, in detail elsewhere. (147) Equitable interpretation, which Riggs involved, is an interpretation of the legislature's lawmaking act, which is what legislation is. In Aristotle's account, equitable interpretation was not so much an act of changing the law as determining how its intended meaning should apply to cases the legislature failed to anticipate. These are important cases but they are, almost by definition, exceptional and they do not establish that legislation cannot specify rights in a way that is indefeasible against countervailing interests or the general welfare. Legislation routinely specifies rights in this way, even if in some cases the apparently specified right is subject to an exception by equitable interpretation of the lawmaking act. The point of counter-thesis four, we should reiterate, is not to make controversial claims about the relationship in some, most or all cases about the relationship between legislation, common law, customary rights, or vested rights. It is instead to point out that legislation specifies rights and duties which are fit to be adopted as propositions by subjects of law. The contrast we draw is with rights as understood in modern rights adjudication, in which rights are staging posts for judicial lawmaking discretion and in which a so-called right is standardly open to being qualified by way of open argument about other interests and the general welfare.
For the opportunity to learn from Victoria Nourse, Robert Lowry Clinton, Andy G. Olree, and Adam J. MacLeod, we thank the Faulkner Law Review for hosting its 7th Annual Law Review Symposium on "The Role of the Legislature in the Anglo-American Tradition".
In our reply to the challenges, criticisms, and encouragement of our four readers, we have sought (1) to vindicate the central case method and its promise, which, as Clinton rightly says, frames our whole study and its intended contribution to thinking about legislatures and rights (what is imagined or expected or thought to be possible or worth bringing about); (2) to consider the Anglo-American historical record in particular, which reveals possibilities and, crucially, does not establish that our account has no purchase on, or confirmation from, the American experience but suggests quite the contrary; (3) to think further about the interplay between legislated rights and constitutional structure, especially the separation of the executive and legislature powers and nature of judicial power, agreeing with Nourse that Westminster might have an easier time in legislating well but not taking this necessarily to justify American-style judicial review and denying, pace Olree, that we have no good account of judge-craft; (4) to defend controversial theses which take the legislature seriously and take a dim view of much modern rights adjudication, disavowing any settled or categorical claim about the merits of judicial review, which are instead contingent, even if to be approached by seeing judicial review primarily as remedial, compensating for pathologies rather than a permanent fix and risking introducing new pathologies in the constitutional order; (5) to reflect on how oppressive "rights" legislation provides another opportunity to explore the central case of legislation, by framing the wrong and the failure of such legislative wrongs as internal rather than as appealing to some external standard against which to measure legislation; and, finally, (6) to think about the relationship between legislation and common law, and the defeasibility of legislated rights, agreeing with MacLeod that often rights are protected by other types of law, that legislation should engage intelligently not imperiously with such law, and that legislatures and legislation are subject to rights rather than their masters, but maintaining that legislation is broadly speaking capable of being complete, especially as against proportionality analysis (rather than equitable interpretation).
HLA Hart said that it was "a sovereign virtue in jurisprudence" to be "wrong clearly" even when one is "clearly wrong". (148) The challenges that one confronts in expressing arguments clearly are many and they are compounded when one writes, as we do here, with another. When, as with Legislated Rights, the authors number six in total, the challenges grow considerably. And so, for all of the clear wrongs that our distinguished commentators have identified in Legislated Rights, we take comfort in their reflections that, despite the challenges of having six authors speak with one voice, we have done so with sufficient credibility to be thought to be wrong clearly.
Richard Ekins (1) and Gregoire Webber (2)
(1) Tutorial Fellow in Law at St John's College and Professor of Law at the University of Oxford. Email: richard.ekins(fl),law.ox.ac.uk.
(2) Canada Research Chair in Public Law and Philosophy of Law, Queen's University, and Visiting Fellow, London School of Economics and Political Science. Email: nrcgoirc.webber(a)queensu.ca.
(3) Robert Lowry Clinton, Legislative Authority and Judicial Power: A Review of Legislated Rights: Securing Human Rights Through Legislation, 10 Faulkner L. Rev. 29, 29 (2018).
(4) Andy G. Olree, Of Foxes and Hen Houses: Legislated Rights and American Founding Era Thought about Legislative Authority to Define the Scope of Fundamental Rights, 10 Faulkner L. Rev. 51, 67, 86-88, 110 (2018).
(5) Victoria Nourse, The Constitution Entire: An Essay on Legislated Rights, 10 Faulkner L. Rev. 1,1-2 (2018).
(6) Adam J. MacLeod, The Legislature: A Vital Part of the Apparatus of Civil Rights, 10 Faulkner L. Rev. 111, 111 (2018).
(7) GREGOIRE WEBBER, PAUL YOWELL, RICHARD EKINS, MARIS KOPCKE, BRADLEY W. MILLER & FRANCISCO J. URBINA, LEGISLATED RIGHTS: SECURING HUMAN RIGHTS THROUGH LEGISLATION (2018) [hereinafter LEGISLATED RIGHTS].
(9) Clinton, supra note 3, at 30.
(10) 347 U.S. 483 (1954).
(11) LEGISLATED RIGHTS, supra note 7, at 4 (emphasis added).
(13) See Gregoire Webber, Asking Why in the Study of Human Affairs, 60 AM. J. JURIS. 51,54 (2015).
(14) JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 3 (2d ed., Oxford University Press 2011) (1980) [hereinafter FINNIS, NATURAL LAW AND NATURAL RIGHTS].
(15) See Webber, supra note 13, at 54.
(16) See id. at 55. See also FlNNIS, NATURAL LAW AND NATURAL RIGHTS, supra note 14, at 3-23; JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY ch.2 (1998) [hereinafter FlNNIS, AQUINAS].
(17) LEGISLATED RIGHTS, supra note 7, at 3.
(19) Olree, supra note 4, at 53-54 (citing THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)).
(20) Webber, supra note 13, at 66.
(21) Olree, supra note 4, at 51.
(22) 4 JOHN FINNIS, PHILOSOPHY OF LAW: COLLECTED ESSAYS 30 (2011) [hereinafter FINNIS, PHILOSOPHY OF LAW]. In the quoted passage, Finnis is speaking to "law," but the force of the argument applies, mutatis mutandis, to the central case of legislation and legislatures.
(24) FINNIS, NATURAL LAW AND NATURAL RIGHTS, supra note 14, at 16.
(25) Id. at 10-11.
(26) Clinton, supra note 3, at 30.
(28) LEGISLATED RIGHTS, supra note 7, at 3.
(29) Clinton, supra note 3, at 48.
(31) Olree, supra note 4, at 73-74. Although none of the authors of Legislated Rights has served in a legislature, one of the authors of this article was Legal Affairs Advisor to the Minister of Justice and Attorney General of Canada and, in that capacity, closely saw the Parliament of Canada (a real legislature) in action; the other routinely gives evidence to parliamentary committees in Westminster and has written extensively about legislative structure and about particular legislative acts, reasonable and pathological.
(33) MacLeod, supra note 6, at 112.
(36) See also Richard Ekins, Intentions and Reflections: The Nature of Legislative Intent Revisited 64 AM. J. OF JURIS. 139, 140-144 (2019) [hereinafter Ekins, Intentions and Reflections].
(37) Clinton, supra note 3, at 48.
(38) Nourse, supra note 5, at 1.
(40) MacLeod, supra note 6, at 111.
(41) Olree, supra note 4, at 51-53.
(42) Id. at 54-55.
(43) PAUL YOWELL, CONSTITUTIONAL RIGHTS AND CONSTITUTIONAL DESIGN: MORAL AND EMPIRICAL REASONING IN JUDICIAL REVIEW 147-67 (2018); see also Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 253 (2017). This article contrasts natural rights and positive rights and argues that: "Though easy to identify, natural rights at the Founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good--generally understood as the welfare of the entire society--was almost entirely a legislative task, leaving very little room for judicial involvement. Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal "trumps" in the way that we often talk about rights today." Id. (footnotes omitted).
(44) For one view on such developments, see ADRIAN VERMEULE & ERIC POSNER, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC (2011).
(45) RICHARD EKINS, THE NATURE OF LEGISLATIVE INTENT 169-73 (2012) [hereinafter EKINS, NATURE OF LEGISLATIVE INTENT].
(46) For a sample of academic reviews of this development, in the United States and elsewhere, see Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L. J. 3094 (2015); KAI MOLLER, THE GLOBAL MODEL OF CONSTITUTIONAL RIGHTS (2012); JACCO BOMHOFF, BALANCING CONSTITUTIONAL RIGHTS: THE ORIGINS AND MEANINGS OF POSTWAR LEGAL DISCOURSE (2013); FRANCISCO J. URBINA, A CRITIQUE OF PROPORTIONALITY AND BALANCING (2017); GREGOIRE WEBBER, THE NEGOTIABLE CONSTITUTION: ON THE LIMITATION OF RIGHTS (2009).
(47) For discussion, see Yowell, supra note 43, at 148-50.
(48) Cf. Richard Ekins, How to be a Free People, 58 AM. J. JURIS. 163 (2013).
(49) Ekins, The Nature of Legislative Intent, supra note 36, at 83-85.
(50) Abraham Lincoln, First Inaugural Address (1861), in 4 Collected Works of Abraham Lincoln 249, 268 (Roy P. Basler ed., 1953) ("If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.").
(51) See Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
(52) Olree, supra note 4, at 107-08.
(53) Id. at 61.
(54) See Nourse, supra note 5, at 9-10; LEGISLATED RIGHTS, supra note 7, at 142-150.
(55) Nourse, supra note 5, at 6-8.
(56) See Richard Ekins & Graham Gee (eds.), JUDICIAL POWER AND THE LEFT: NOTES ON A SCEPTICAL TRADITION (2018) (especially note chs. 2, 5, and 6). http://judicialpowerproject.org.uk/judicial-power-and-thc-left-notes-on-a-sceptical-tradition/
(57) Nourse, supra note 5, at 5-11.
(58) William N. Eskridge, Jr., & John Ferejohn, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION (2010).
(59) See Clinton, supra note 3, at 47-49.
(60) Jonathan Sumption, TRIALS OF THE STATE (2019) (based on his 2019 BBC Reith lectures "Law and the Decline of Politics").
(61) Olree, supra note 4, at 90-91.
(62) John Finnis, Judicial Power: Past, Present and Future in JUDICIAL POWER AND THE BALANCE OF OUR CONSTITUTION 26, 37 (Richard Ekins cd., 2018).
(63) Olree, supra note 4, at 104.
(64) See LEGISLATED RIGHTS ch. 4 (especially note sec. 4.4).
(65) See Gregoire Webber, Loyal Opposition and the Political Constitution, 37 OXFORD J. LEGAL STUD. 357 (2017).
(66) LEGISLATED RIGHTS, supra note 7, at 129.
(67) See the discussion in Legislated Rights in ch. 3, sec. 3.7.
(68) Nourse, supra note 5, at 17-23.
(69) Id at 19.
(70) Id. at 19-20. See also Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008).
(71) Nourse, supra note 5, at 19.
(73) Id at 20-21.
(74) Gerald N. Rosenberg, Protecting Privilege: The Historic Role of the U.S. Supreme Court and the Great Progressive Misunderstanding, in JUDICIAL POWER AND THE LEFT: NOTES ON A SKEPTICAL TRADITION 2017, at 76, http://judicialpowerprojcct.org.uk/wpcontent/uploads/2018/01/Judicial-Power-and-the-Left-wcb-version.pdf.
(75) Olree, supra note 4, at 91 -94.
(76) Id. at 67, 86.
(77) See LEGISLATED RIGHTS, supra note 7, at 113-115.
(79) The first such declaration is in the introductory chapter. LEGISLATED RIGHTS, supra note 7, at 9.
(80) Id. at ch 7.
(81) Lord Sales of the UK Supreme Court reviewed our book in (2019) 135 Law Quarterly Review 338-340 and former Chief Justice of Canada Beverley McLachlin, former High Court of Australia Justice J. D. Heydon, former England and Wales High Court judge Sir Ross Cranston, and Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench all commented on Legislated Rights in an online symposium hosted by Policy Exchange's Judicial Power Projcct:http://judicialpowerproject.org.uk/category/posts/series/legislated-rights. In addition. Justices Cote and Brown of the Supreme Court of Canada cite our book in their important joint dissent in Frank v. Canada, 2019 SCC 1.
(82) See LEGISLATED RIGHTS, supra note 7, at ch. 6.
(83) Olree, supra note 4, at 80-83.
(84) Id. at 83.
(85) John Finnis, Judicial Power: Past, Present and Future, in JUDICIAL POWER AND THE BALANCE OF OUR CONSTITUTION: Two LECTURES BY JOHN FINNIS (Richard Ekins ed.,2018).
(86) Olree, supra note 3, at 82, 85.
(87) Timothy Endicott, VAGUENESS IN LAW (2000)
(88) Nourse, supra note 5, at 13.
(90) See LEGISLATED RIGHTS ch. 2, 5, and 6 (reviewing proportionality analysis in many Commonwealth and European jurisdictions).
(91) Nourse, supra note 5, at 13.
(92) Id at 16.
(93) Olree, supra note 4, at 58 n. 24.
(94) Id at 65.
(95) Id. at 65 n. 56.
(97) Clinton, supra note 3, at 44 (citing LEGISLATED RIGHTS, supra note 7, at 200).
(98) Among those things said, see id. at ch. 4, sees. 4.8-4.9 (discussing self-government and the reply to the 'judge in its own cause' objective to legislative authority over rights).
(99) Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism 47 COLUM. J. TRANSNAT'L L. 72, 74 (2008) (a "defining feature of global constitutionalism"), id. at 79 (a "global constitutional standard"), id. at 76 (a "taken-for-granted feature of constitutionalism"). Stone Sweet and Mathews arc reporting, not endorsing, these views.
(100) LEGISLATED RIGHTS, supra note 7, at 181.
(101) Id. at 182.
(102) Id. at 200.
(103) RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 395-396 (2011).
(104) Wat 398.
(107) Id. at 399.
(108) LEGISLATED RIGHTS, supra note 7, at 87-92, 136-140.
(109) Id. at 87-92.
(110) Id. at 133-142.
(111) Olree, supra note 4, at 59.
(113) Id. (emphasis in original).
(114) MacLeod, supra note 6, at 111.
(116) Id. at 7.
(117) Olree, supra note 4, at 59 (citing LEGISLATED RIGHTS, supra note 7, at 25, 182).
(118) Id at 91.
(120) Id. at 93 (emphasis in original).
(121) Id. (emphasis in original).
(122) Clinton, supra note 3, at 46.
(123) LEGISLATED RIGHTS, supra note 7, at 9.
(125) Nourse, supra note 5, at 23.
(126) Id at 24.
(127) Id. at 25 (footnotes omitted).
(128) Id. (footnotes omitted).
(129) Id. at 23-26.
(130) Id. at 27.
(131) MacLeod, supra note 6, at 116.
(132) Id. (emphasis in original).
(133) LEGISLATED RIGHTS, supra note 7, at 15.
(134) Clinton, supra note 3, at 48.
(135) See LEGISLATED RIGHTS, supra note 7, at 102 n.50, 129.
(136) MacLeod, supra note 6, at 113.
(137) Id. at 127.
(138) Id. at 127-128.
(139) See LEGISLATED RIGHTS, supra note 7, at 126-27.
(140) Id. at 129.
(141) See also Maris Kopcke, LEGAL VALIDITY: THE FABRIC OF JUSTICE (2019)
(142) MacLeod, supra note 6, at 119-120.
(143) Id. at 20.
(144) Jim Evans, A Brief History of Equitable Interpretation in the Common Law System, in LEGAL INTERPRETATION IN DEMOCRATIC STATES 67 (Tom Campbell & Jeff Denys Goldswothy eds., 2002),; cf. ANDREW BURROWS, THINKING ABOUT STATUTES: INTERPRETATION, INTERACTION, IMPROVEMENT (2017).
(145) MacLeod, supra note 6, at 125.
(146) 115N.Y. 506 (1889).
(147) EKINS, THE NATURE OF LEGISLATIVE INTENT, supra note 45, at ch. 9, sec. VI.
(148) H. L. A. Hart, Positivism and the Separation of Law and Morals (1958) 71 HARV. L REV. 593, 593 (1958).
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|Title Annotation:||Symposium on "Legislated Rights: Securing Human Rights Through Legislation"|
|Author:||Ekins, Richard; Webber, Gregoire|
|Publication:||Faulkner Law Review|
|Date:||Sep 22, 2018|
|Previous Article:||THE LEGISLATURE: A VITAL PART OF THE APPARATUS OF CIVIL RIGHTS.|