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Summary Constitutional Principles and Human Rights
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Summary of the course Constitutional Principles and Human Rights by professor Dirk Vanheule
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Constitution and ConstitutionalismConstitution:
Dicey: “constitutional law exists of all rules which directly or indirectly affect the distribution or the
exercise of the sovereign of a state. It includes all rules which define the members of the sovereign
power, all rules which regulate the relation of such member to each other, or which determine the
mode in which the sovereign power, or the members thereof, exercise their authority”.
Why: constitutions are adopted for several reasons
1. Recognition of statehood by the international community (e.g. after decolonisation or
separation).
2. Establishment or symbolization of a nations existence.
3. Expression of national unity (important for states with a heterogenous population).
At minimum a constitution creates the formal contours for exercise of public power. However, the
political reality may differ from these formal contours (law in action vs law on the books). This becomes
problematic if the institutional limitations on power don’t correspond with the practice of unlimited
government (= sham constitution). To be able to recognize a sham constitution it is important to have
criteria to determine which shortfalls deprive a constitution from its nature as limiting the exercise of
public powers.
E.g.: A charismatic leader or the leader of a political party may have greater impact on policy and
political reality than their formally attributed powers in the constitution.
E.g.: the constitution of the USSR under Stalin was a Sham Constitution
For a constitution to be genuine it must enshrine certain values and principles that prevent society
from backsliding toward tyranny. Constitutional rights and other constitutional previsions prevent the
worst abuses by binding the future to values enshrined in the past.
Aspirational provisions: later generations are not burdened by the values of earlier generations, but
by values that can be realized in the future if the later generation wishes to do so.
E.g.: the USA Reconstruction Amendments (1865-70) guaranteed equality and equal citizenship
throughout the US, but this only became a reality in ’50-’60 because US society by that time had
begun to value racial equality (whereas these values were not shared in the late 1800s).
There are different circumstances for the adoption:
1. Amendment of the existing constitutional framework.
2. Replacement of an outdated Constitution.
3. Result of deep reflection.
4. Response to a crisis situation, discrediting political powers, often in post-conflict situations.
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,Different models within one constitution: US Constitution
Law started studying the Constitution due to its fundamental nature and essential function in any legal
system operating within the context of an organized state.
According to Tribe “the US constitution is a historically discontinuous composition, which is the
product of a series of compromises that doesn’t mirror one single vision or philosophy, but instead
reflects a set of reinforcing and conflicting ideals and notions”. As a result, he organized constitutional
principles, rules and theories in terms of 7 basic models:
Model I: separated and divided powers
Early 1800s: small number of explicit substantive limitations on the exercise of
governmental authority. Personal freedom would be secured by decentralisation.
Model II: implied limitations on government
After the Civil War (1860-1865): reaction to the shortcomings of model I. The Supreme
Court defined spheres of the private, state and national power in terms of their
character and implied limitations (not purely trusting govt to deal with its citizens).
Model III: settled expectations
During the Interbellum and the Great Depression: when intervening, the government
must respect the vested rights in property and contract so that certain settled
expectations are secure against governmental disruption.
Model IV: governmental regularity
This model is focused on the ideal of governmental regularity, associated with norms
of perspectivity, generality and impartiality. It requires procedural safeguards when
the government intervenes in individual interests in life (liberty or property).
Model V: preferred rights
After 1937: this model excludes governmental power form specific substantial sphere,
by identifying and protecting certain preferred rights from governmental intrusion.
Model VI: equal protection
After 1937: this model identifies the fundamental aspects of social structure that
should be open to all and the criteria of govt classification that are most likely to reflect
prejudice.
Model VII: structural justice
This model seeks certain decision structures for certain substantive purposes in certain
contexts (sometimes better to put it beyond govt react and sometimes in govt reach).
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,1. SEPARATED AND DIVIDED POWERS
In the first halve of the 19th century, the framers of the constitution were convinced that human rights
should be preserved by inaction and indirection, protected by the separation and division as to
fragment centers of countervailing power.
Division: vertical distribution of powers into federal, state and local authorities.
Separations: horizontal separation of powers into the legislative, executive and judicial
authority.
The idea was that no department, branch, or level of government could be so empowered that they
could achieve dominance on their own. Instead, they were to be depended upon each other. In this
time, the Supreme Court rejected challenges of state authority:
E.g.: the Bill of Rights was only applicable to the federal level. The court rejected a general charter
of liberty against the States, because the rights of the citizens were to be protected by their
representation in state legislatures and in national congress.
Substantial rights in the constitution: separation and division of powers + Bill of Rights which was
directed against federal abuses (= the first 10 amendments to the federal Constitution).
2. IMPLIED LIMITATIONS ON THE GOVERNMENT
The linkage between protection of individual rights and the state level of model I was broken by the
division over slavery between the North and the South during the Civil War. This linkage relied upon
an identity of interest between the states and the civil rights and liberties of the people.
This resulted in the adoption of the Reconstruction Amendments (‘65-‘70), which were meant to
reconstruct the Southern states, with the same liberty for the whole population.
13th amendment: abolition of slavery and involuntary servitude.
14th amendment: citizenship and equality (Citizenship -, Privileges -, Due Process - and Equal
Protection Clause).
15th amendment: prohibition of discrimination in voting rights based on race, color, or
previous conditions of servitude.
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, However, the Supreme Court didn’t follow and upheld state sovereignty, out of fear for national
tyranny. They feared that the congress could use the amendments against the state governments,
which were the closest to the people in order to protect their governments.
E.g.: the Slaughterhouse Cases (1873) upheld monopoly as non-discriminatory. The court decided
that rights under State law do not fall under 14th Amendment (the privileges and immunities
extended only to those specified in the U.S. Constitution).
E.g.: Plessy v. Ferguson (1896) upheld Jim Crow laws. Context: Louisiana law passed in 1890
providing for separate railway carriages for the white and colored races. Plessy was 1/8 black and
looked like a white man and sat in a white-only car upon which he was convicted for violating the
law. He filed a petition against the judge (Ferguson), at the Louisiana Supreme Court, arguing that
the segregation law violated the Equal Protection Clause.
The Court ruled that, while the object of the 14 th Amendment was to create absolute equality of the
two races before the law, such equality extended only so far as political and civil rights (e.g., voting
and serving on juries), not social rights (e.g., sitting in a railway car one chooses). They pointed out
that both blacks and whites were given equal facilities under the law and were equally punished for
violating the law.
The Plessy vs Ferguson case introduced the separate but equal doctrine: as long as the facilities
provided to each race were equal, governments could require that the services and facilities should
be divided by race, without violating the 14th amendment.
Instead, the court relied on general principles of common law: federal legislation remedying state
infringements upon individual common-law rights would be upheld, while federal laws intruding on
State domain are invalidated.
Because state laws invading private domain were invalidated, this resulted in the definition of personal
liberties. The courts defined the spheres of private, state and national powers in terms of their
essential character and their implied limitations. Consequently, it connected individual and
institutional concerns, without relying on the trustworthiness of state and local govt in dealing with its
citizens need for an objective judicial method for defining the limitations of state power and thus
filling out the contents of personal liberty.
E.g. Lochner v. New York (1905): a New York law setting maximum working hours for bakers was
deemed unconstitutional by the Supreme Court, as states couldn’t interfere with employment
contracts as the right to buy and sell labor is a fundamental freedom protected by the 14th
amendment. While states may legitimately regulate certain contracts through their police powers
(authority to enforce restrictions on private rights for the sake of public welfare), the baking industry
was not an "unhealthy trade" and therefore was not legally subject to regulation. The law was
deemed as an interference with the right of the individual to his personal liberty. The ruling thus
found that substantive, and not just procedural, rights are protected
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