Determining Rights - Constitutional Law
Author: Shania Fernandes
Editor: Jigyasa Prabhakar
Issue
There is a perplexing question on how we define and determine constitutional rights: are they strictly fixed by the text of the Constitution or open to interpretation and evolution through political processes? Modern legal thought often assumes that the Constitution itself clearly fixes the content of rights, with judges taking the lead in interpreting those rights. However, this was not the case during the Founding era. As they highlight, the Founders did not view the Constitution as a rigid document that immediately determined the scope of rights upon ratification. Instead, they believed that “rights were not fully fixed by the text, but were grounded in natural law or customary practices, with their content often left open for political determination." The Founders saw rights as evolving through political deliberation, not as something to be solely determined by courts or defined once and for all by the Constitution.
This divergence from modern thought raises a profound question about the role of courts, the political branches, and the public in shaping the meaning of rights. In today’s legal landscape, we are often led to believe that judicial interpretation is the final authority on the scope of constitutional rights. Yet, in the eyes of the Founders, rights were living concepts that were malleable and determined in real-time by elected representatives through ongoing political discussion, not enshrined in stone by the Founding documents. This tension challenges the way we view rights today and demands that we reconsider how constitutional interpretation should unfold. Should we continue to look to the courts for definitive answers, or is it time to rethink the relationship between the Constitution and the political process?
Analysis
The Bill of Rights was primarily declaratory, intended to affirm the existence of natural and customary rights rather than determine their precise legal content. In the Founding-era, rights were not primarily thought of as textually fixed, but rather as grounded in common law, social-contract theory, and natural law. Rights enumerated in the Constitution were often left undetermined in detail, with their full interpretation and application to be worked out through political processes by elected representatives.
There are various common critiques that unfold into four common misconceptions about Founding-era constitutionalism:
The belief that enumerating rights fully fixed their content: The idea that enumerating rights once and for all determined them in perpetuity.
The notion that enumerated rights are judicially enforceable: The view that judges alone are responsible for determining the content of enumerated rights.
Rights as categorical “trumps”: The belief that enumerated rights are absolute, trumping all governmental interests.
Textual derivation of rights content: The idea that rights must be evaluated based on a “facial” reading of the text, without considering how they may apply in specific cases.
These positions, while reflecting some historical truth, are shown to be inconsistent with the historical practices and understanding of rights during the Founding era due to the contradictions and ambiguity associated with their principles.
Solutions
Addressing issues like the “text and history” approach of modern originalists which is highly critiqued, as it misrepresents the Founding-era approach to rights by treating rights as fixed and judicially enforceable based on textual interpretation. A more nuanced understanding of the Founders’ view of rights could offer a more flexible and historically faithful approach to modern constitutional interpretation. By recovering the historical understanding of rights as underdetermined and politically shaped, the article implies that modern constitutional interpretations should reconsider the role of political actors and the public in determining the scope and application of rights, rather than relying solely on judicial decisions. This in return creates a more democratic, diversified adaptation of the essential rights that preside over our nation.
