Waldron and Rights
posted by Lori Ringhand
Jeremy Waldron, public law scholar extraordinaire, gave the John A. Sibley Lecture at the University of Georgia yesterday. Waldron is perhaps best known for his writing on rights and judicial review. Once core concepts of equality and participation are secured, Waldron says, debates over rights necessarily become debates over essentially contested value choices. As such, he argues they should be defined primarily through legislative, not judicial, methods. He thus is critical of U.S. style judicial review, preferring the legislative supremacy model traditionally favored by Great Britain and his native New Zealand.
I am increasingly skeptical of part of Waldron’s premise – that the Supreme Court is in fact the final definer of rights the U.S. system – but his work nonetheless raises an interesting and troubling point about how we talk about rights. We often use the word “right” in an absolutist way. But of course none of the rights protected by the Constitution are absolute; rather, they are protected only to the extent that they are not trumped by the needs of society or others.
Advocates of different schools of constitutional interpretation have different ways of talking about that fact. Originalists argue that the necessary balancing between individual interests and societal needs was done by the founders, and our job is merely to respect the balance they struck. Thus, for example, perjury is not protected by the First Amendment – even though perjury is speech and the First Amendment is worded in absolute terms – because the founders did not understand it to be part of the “speech” they were protecting. Non-originalitists, on the other hand, argue that perjury is not protected because the need for accurate information in a courtroom outweighs an individual’s interest in lying under oath. Either method ends up at the same place: our right to free speech is not absolute.
The problem with our way of talking about rights as absolute is not (or not just) that it is inaccurate, but that it turns rights claims into conversation stoppers: I have a right, so I win. End of discussion. Not only is this highly unlikely to be persuasive to anyone who does not already agree with you, but its inherent thinness masks the rich interplay of individual and societal needs underlying rights claims. It also cuts short consideration of why a right to free speech (or equal protection or due process) is worth protecting. This leads, I fear, to an under appreciation of the substantive reasons for cherishing these things in the first place. Waldron argues that rights claims are opportunities to persuade. I suspect our public dialogue would be well-served if we treated them as such.
March 6, 2008 at 7:02 am
Posted in: Constitutional Law
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