There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, (...) the legitimacy of proportionality analysis is a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235. (shrink)

The article begins with an outline of the balancing construction as developed by the German Federal Constitutional court since the Lüth decision in 1958. It then takes up two objections to this approach raised by Jürgen Habermas. The first maintains that balancing is both irrational and a danger for rights, depriving them of their normative power. The second is that balancing takes one out of the realm of right and wrong, correctness and incorrectness, and justification, and, thus, out (...) of the realm of the law. The article attempts to counter these objections by showing that there exists a rational structure of balancing that can be made explicit by a “Law of Balancing” and a “Disproportionality Rule.” These rules show, first, that balancing is not a danger for rights but, on the contrary, a necessary means of lending them protection, and second, that balancing is not an alternative to argumentation but an indispensable form of rational practical discourse. (shrink)

This work explains the nature of constitutional rights. It does so by means of an analysis of the nature of law in general, the nature of constitutions, and the nature of rights. It looks in detail at several aspects of constitutional law, rights and institutions, as well as aspects related to public officials, private persons and associations. In addition, the book critically examines a considerable number of debates about whether some actual or proposed constitutional (...) rights ought to be established and maintained in the United States constitution. It then identifies the kinds of reasons that justify or fail to justify constitutional rights. The book advances the debate and makes a contribution to the theory and the practice of constitutional rights. (shrink)

The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically (...) different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today. (shrink)

Prevailing accounts of the relationship between rights and identity impose a false choice between conceptions of rights as the instrument of self-invention or the foil to collective virtue. This article proposes an alternative conception of rights as constitutive of social relations and aspects of individual identity. To do so, it draws on H. L. A. Hart's famous distinction between special and general rights, and it describes the exclusionary and inclusionary conditions under which these forms of right (...) constitute social groups and self-meaning. Further, it specifies a pure form of «constitutive right», overlooked in Hart's typology, but extant in modern liberal, pluralistic societies, that inherently differentiates among persons and so directly constitutes aspects of human identity. (shrink)

Modern constitutional rights law is often criticised for delineating rights too broadly while resolving their regular conflicts with competing considerations through open-ended balancing procedures. A basic theme underlying criticisms of this expansionist trend is that it expresses utilitarian ideas, foreign to the domain of rights. This article replies to two main critiques: that rights can only extend to cases in which they defeat all competing considerations; and that conflicts involving rights should be resolved with (...) categorial rules. The article builds on contractualist moral theory and the interest theory of rights to present an account of constitutional rights as relational value-based reasons to recognise duties. This account goes beyond central justifications of the expansionist trend, that erode the action-guiding and relational aspects of constitutional rights. It shows that including in their scopes defeasible reasons is not only conceptually possible but also morally desirable as it can better realise their underlying values by providing systematic guidance to state agents as part of the basic structure of society; and that while rights-based duties are peremptory and categorical, constitutional rights-based reasons for regulation invite a dynamic and incremental comparison of claims on a social scale, of the kind that proportionality analysis structures. (shrink)

The first section takes up some main details of American constitutional history. At the end of that section and in section two, we concentrate on one constitutional doctrine in particular, judicial review. We argue that this doctrine rests, traditionally, on the foundational idea of a permanent tension between democratic institutions and basic rights. In section three, we deal with the problem just raised, by suggesting an alternative view of the relationship that exists between these fundamental constitutional (...) elements. Here we attempt to show that there is an essential principled harmony between basic constitutional rights and democratic majority rule. And we try to locate judicial review within this alternative conception. Then in section four and in the conclusion we discuss the institutional arrangements for the practice of judicial review in the light of this alternative conception. (shrink)

-/- In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows (...) rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy. (shrink)

Professor Matthew Adler has argued that many constitutional rights are not personal moral rights, but that are pragmatic and instrumental in nature. 1 The reason rights are not personal, in Adlerthe constitutionality of a statute depends not just on how it affects someone, but on what it sayspersonal” legal disability that would set him apart from any other citizen, and is, therefore, not enforcing a personal right. Instead, Adler believes that constitutional rights are better (...) understood as positive-law creations that allow citizens to sue as private attorneys-general. (shrink)

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the (...) application of constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dubthe structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engagedreflectivelywith practical questions (questions about rights arepar excellencequestions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generatesprima faciereasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall. (shrink)

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and (...) review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges. (shrink)

This book analyses the general structure of constitutional rights reasoning under the German Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

The present debate on constitutional rights aims to protect the individual against the intrusive power of the state. Analysing the precarious relationship between art and money, the authors argue that constitutional rights need to be extended into the regimes of private governance. This requires four fundamental changes. (1) Constitutional rights can no longer be limited to the protection of individual actors. Instead, they need to be extended to guarantees of freedom of discourses. (2) The (...) new experience of the twentieth century is that totalizing tendencies have their origin not only in politics, but also in other fields of action, especially in technology, science, and the economy. Thus, a discursive concept of constitutional rights should be directed against any social system with totalizing tendencies. (3) Instead of concentrating on centres of economic and social power, constitutional rights in the private sphere should focus on the specific communicative medium of the expansionist social system involved. (4) This excludes the direct analogy of a ‘right’ as a quasispatial exclusion zone. More significant guarantees of discursive autonomy could be found in a ‘proceduralization’ of constitutional rights. (shrink)

The rapid spread of judicially-enforced constitutional rights has been one of the most dramatic developments in modern law. This book argues that there is now a global model for how such rights should function, and develops an original, philosophically grounded, account of their nature and scope.

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to (...) absurdly opening the courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way. (shrink)

There is a tension between the idea of popular sovereignty and our understanding that basic constitutional rights and liberties have a normative authority which is independent from the results of democratic decision‐making procedures. On the one hand there is the claim that the content of political justice, at least as far as the basic liberties are concerned, is to be fixed solely by substantive moral and political argument, while on the other there is the claim that it is (...) the people who determine the specific scheme of basic liberties that they live under. The apparent tension between the two claims can be resolved by introducing, firstly, a distinction between the concept of justice and the concept of legitimacy and, secondly, between proto‐rights and constitutional rights. Unlike constitutional rights, proto‐rights are moral, not legal, rights, and they are less specific than constitutional rights: one set of proto‐rights allows for various schemes of legal constitutional rights. Proto‐rights are part of the principles of justice and can be established only by substantive argument while constitutional rights have to be established by the procedures of democratic legitimization, and, therefore, they are a result of the exercise of popular sovereignty. The correlated distinctions between justice and legitimacy, and between proto‐rights and constitutional rights, allow us to specify the scope of the two claims and, hence, to affirm both simultaneously. The philosophical and legal relevance of the distinctions made is elucidated by a brief discussion of the constitutional rights of freedom of speech in the US and Germany. (shrink)

This book analyzes the general structure of constitutional rights reasoning under the Geman Basic Law. It deals with a wide range of problems common to all systems of constitutional rights review. In an extended introduction the translator argues for its applicability to the British Constitution, with particular reference to the Human Rights Act 1998.

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

In this important book, Michael J. Perry examines three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. The author, a leading constitutional scholar, explains that if a majority of the justices of the Supreme Court believes that a law violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which (...) it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: is the challenged law unconstitutional? Is the lawmakers' judgment that the challenged law is constitutional a reasonable judgment? Perry not only illuminates moral controversies that implicate one or more constitutionally entrenched human rights, but also the fundamental question of the Supreme Court's proper role in adjudicating such controversies. (shrink)

ABSTRACT For several generations before the First World War, the idea that the British constitution contained a ‘right of asylum' for foreign nationals was commonplace. Though this belief had profound consequences for Britain's treatment of political and religious exiles, its relations with foreign states, and the drafting of its extradition and immigration laws, there has been little enquiry into its origins. This article delineates the emergence of the idea of a constitutional ‘right of asylum', locating it in a series (...) of political clashes over the ‘Alien Act' that took place during the decade after the Napoleonic Wars. This legislation, which established controls over foreigners during the French Revolution and the quarter-century of war that followed, was increasingly challenged by the Whig and radical oppositions after Waterloo, both for its specific arbitrary provisions and as a more fundamental violation of the rights of aliens guaranteed by key constitutional documents like Magna Carta and the Habeas Corpus Act. By the mid-1820s these objections cohered into a conviction that asylum itself could be claimed as a right. This conviction and the arguments that spawned it were repeated for many subsequent decades, forming the basis of the widespread Victorian belief in the ‘right of asylum’. (shrink)

In recent decades, neo-republican philosophers have developed a theory of freedom as non-domination, which, they claim, is conceptually and analytically distinct from the “liberal” concept of freedom as non-interference. However, neo-republicans have intervened in constitutional debate almost exclusively in relation to structural issues of institutional competence, and have made little impact on the analytical jurisprudence of constitutional rights. While judicial review seems ill equipped to respond to the distributive dimensions of republican freedom, republicans like Richard Bellamy have (...) argued that the whole edifice of countermajoritarian, strong-form judicial review is itself an affront to freedom as non-domination properly understood. Republican freedom, in this lens, is defined structurally, procedurally and politically rather than in relation to a definite set, concept or theory of rights that is put outside and beyond politics. And partly for this reason, there has been little commentary concerning how the theory of freedom as non-domination might inform constitutional-rights doctrine. This article will argue, first, that the neo-republican view can usefully inform constitutional-rights doctrine notwithstanding republican reservations concerning judicial power. Second, it will propose a number of specific ways in which the jurisprudence of constitutional rights might account for the central concerns of the republican idea. (shrink)

The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In this (...) response, I argue that in the long run the push for social change and towards justice can be realized only when there is also a certain stability, namely the stubborn democratic insistence that any state action must be reasonably justifiable to those affected by it in terms of their freedom and equality. This conviction lies at the core and will be reinforced by the endorsement of the global model of constitutional rights. (shrink)

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to (...) political rights, yet not to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means. (shrink)

This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several (...) examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing. (shrink)

This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, (...) therefore, first and foremost a debate over proportionality analysis. The central objection to the principles construction is that balancing and, with it, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights. (shrink)

The controversy over judicial activism is as old as the question whether law is “made” or “found” by the courts, and is die quintessential living question for legal philosophers. Here the practical meets the abstract, as Supreme Court justices must, explicitly or not, adopt some philosophical viewpoint in deciding how general constitutional propositions do, or do not, decide current concress te controversies.

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of (...) comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future. (shrink)

This paper explores the role that empathy can play in the interpretation of constitutional rights. It starts by analyzing the complex concept of empathy, comparing it with similar yet distinct concepts such as projection, sympathy and emotional contagion, then it discusses the widespread distrust of empathy among lawyers and legal thinkers. It will be argued that empathy can play a significant role in the interpretation of constitutional rights, mostly in identifying the interests and needs put forward (...) in the claims and counterclaims of the parties. In the final section, the impact of empathetic judging on judicial minimalism will be briefly discussed. (shrink)

This paper explores the significance of a landmark Italian judgement regarding end-of-life advance directives, emphasizing the legal and political context in which the decision was made. The analysis particularly focuses on the political majority's attempt to overturn the outcome of the courts' proceedings – thereby challenging the country's institutional order and jeopardizing constitutional rights.

The U.S. Supreme Court recently held that the Second Amendment of the Constitution protects an individual's right to bear and keep arms.1 The Court's opinion will stimulate f...

In 2022, the U.S. Supreme Court removed constitutional protection from the individual's right to end a pregnancy. In Dobbs v. Jackson Women's Health Organization, the Court invalidated previous rulings protecting that right as part of the individual liberty and privacy interests embedded in the U.S. Constitution. Now, many observers are speculating about the fate of other rights founded on those interests. The Dobbs ruling conflicts with the Court's 1990 Cruzan decision restricting the government's power to interfere with personal (...) medical choices. The language and reasoning in Dobbs and Cruzan offer guidance on how the Court might address future cases involving the right to refuse life‐sustaining treatment. The decisions also point to policy strategies for preserving that right. (shrink)

The article deals with the constitutional right of a person to apply to court. While construing this constitutionally entrenched right of a person, one analyses the doctrine of the right of a person to apply to court, which was formed in the jurisprudence of the Constitutional Court of the Republic of Lithuania. The right of a person to court is entrenched expressis verbis in Paragraph 1 of Article 30 of the Constitution whereby the person whose constitutional (...) class='Hi'>rights or freedoms are violated shall have the right to apply to court. The doctrine of the Constitutional Court derives this right also from the constitutional principle of a state under the rule of law. The right of a person to court is inseparable from other norms and principles of the Constitution, which are equality of rights, the right to compensation of damage, the right to a proper court process, etc. (shrink)

Professor Michael S. Moore, Charles R. Walgreen, Jr. Chair and Co-Director, Program in Law and Philosophy at the University of Illinois College of Law, delivered Duke Law's Annual Brainerd Currie Memorial Lecture entitled "The Elusive Quest for a Constitutional Right to Liberty." One of the country's most prominent authorities on the intersection of law and philosophy, he has published eight books and some 60 major articles, which have appeared in the country's top law reviews and peer reviewed journals in (...) philosophy and psychiatry. He is the author of Placing Blame, a General Theory of the Criminal Law, widely regarded as the leading modern statement of the retributivist theory of punishment and of that theory's systematic application to criminal law doctrine. In Act and Crime: The Philosophy of Action and its Implications for Criminal Law, Moore provided a unified theory of action that underlies English and American criminal jurisprudence. Professor Moore has presented more than 150 lectures and papers in law, jurisprudence, political theory, legal philosophy, political science and economics, philosophy, psychology, and psychiatry. Sponsored by the Office of the Dean. (shrink)

In this Article I argue that the reductionism of global models of constitutional rights is problematic. Despite how they are labelled, these theories are typically modelled on the domestic constitutional law of an exclusive group of Western countries. The criteria for selecting these countries are not usually clearly or satisfactorily articulated. They then go on to present a simplistic version of the domestic constitutional law of the countries they are describing. The combined effect of these analytic (...) moves raises questions about what is lost in the process, and in particular, whether these frameworks allow for adequate recognition of the claims of those seeking – and achieving – social change within a constitutional democracy. Drawing on insights from critical legal studies, and in particular scholars who seek the decolonization of constitutional law, I argue that the utility of global theories of constitutional rights depends on their ability to recognize and give voice to the forces of social change. Otherwise, they risk being descriptively inaccurate and even damaging to the broader causes they seek to advance. (shrink)

Magna Carat is a highly significant document that found the way into the rights and the constitutions. Magna Carat is a symbol of human and constitutional rights. Social insurance is part of the social security and the recognition of social security as a basic human right is enshrined in the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris and furthermore the European Conventions (...) on Human Rights, specially the article 6. Magna Carat demonstrated the limitations from the arbitrarily. Magna Carat is a foundation of the powers of Parliament and the legal principles, as the rule of law, the rule that everybody has equality before the law. It promised the access to justice. In that respect Magna Carta is still a challenge for many states and officials. The myth of Magna Carta is the protection of the personal rights and is held in great respect by the legal communities against the arbitrary of the authority In respect of the aim of this international conference to see the way how these principles have found their implementation in contemporary legislations as well as to identify the problems that occur regarding these rights, an overview of the Albanian right to appeal for the social insurance rights. The right to appeal to higher authorities against any decisions and the judicial review against the unfavorably resolved appeals. (shrink)

The function of law and of constitutional law is to make determinate what we ought to do. And in constitutional law, that is true of both structural provisions and rights provisions. It is not the function of constitutions to establish our real moral rights. We possess those independently of the constitution, which cannot affect them. And all organs of government are bound morally if not legally by those rights. I have taken no position on the (...) relative competence of legislatures and courts to ascertain the content of real moral rights, and it is possible that the judiciary is well-equipped to be our wise Platonic guardians. However, if the game is interpretation, all that can be interpreted are authored rules, and what those rules mean can only be what their authors meant by them. Anything else is reauthoring—that is, creating new rules. There is no “living tree” constitutional interpretation. The only “living trees” are the judges. So you’d better hope that they are well cultivated. And you may conclude that a bit of pruning is in order. (shrink)

In its long history of rulings on the constitutional rights of children, the U.S. Supreme has struggled with a dilemma: either regard children as persons with fundamental rights that the state must respect, or regard them as human beings who are always in some form of custody. This paper describes and critically discusses three solutions to this dilemma. Only the third solution -- "the enjoyment or rights-in-trust theory" -- solves the problem.