Constitutional issues: rights and judicial review

This is the third part in our series on the (possible) constitutional arrangements for the political systems of space settlements. In this part we will discuss the topic of constitutional rights and constitutional review.

With constitutional rights we mean the rights as they are established by a national constitution. Often when people are talking about rights, they refer to what we would call moral rights, i.e. the rights people are supposed to have according to some moral theory. Only since there a zillions of different moral theories, there are also zillions of sets of moral rights. Therefore any discussion in terms of moral rights is bound to derail.

Constitutional rights are a special subset of legal rights, rights defined by law. Because these rights are part of the constitutions, they are more difficult to change than rights establish by ordinary legislation (of course this depends on how easy it is to modify the particular constitution).

Modern constitutions usually include a list of fundamental rights. Though it usually believed that a constitution should have a list of fundamental rights, this is however no automatism. The original US constitution did not have such list of enumerated rights, the famous bill of rights were incorporated into the American constitution as amendments, subsequent changes in the constitution. And the constitution of Australia is another example of modern constitution without a bill of rights.

In both cases, the American and Australian ones, there had been substantial opposition against idea of including a bill of rights in the constitution during the drafting of these documents. In the American case, the proponents of a bill of rights eventually won the battle, but the Australians have still no bill of rights.

The question is, of course, why a bill of rights in the constitution, or why not? Also in case of this issue, there’s a rough distinction between republicans and democrats (likewise in the previous post in this series, these terms refer here to positions in political theory, and not to the US political parties of the same names). Republicans were generally in favour of including a bill of rights into constitutions, whilst democrats generally opposed to it. However this distinction has never been very strict.

The republican case for a bill of rights as part of the constitution is based on their concerns that power corrupts, and hence governments will be tempted to abuse their power. Constitutional rights, republicans argue, are constraints to the power of the state. Since a government is not allowed to violate the constitution from which it derives its authority, a bill of rights does protect the citizens of the state against abuse of power.

However, the opponents of including a bill of rights into a constitution can raises several objections. First, a bill of rights is only a list of rights on paper, and by itself it cannot protect the people against governmental abuse of power. Secondly, such list would be unnecessary in a properly designed constitution, which contains a good system of checks and balances. Under such a constitution the several organs of state will prevent each other from abusing power.

In the case of the Australian constitution, the writers argued that since Australia would follow the British system of common law, this would protect the traditional rights of English law. Therefore the inclusion of a bill of rights was deemed unnecessary. However, since space settlements are most likely to adopt civil law, this argument will not apply to the framers of the constitutions of space settlements.

Even if a constitution does contain a bill of rights, these rights are essentially worthless if citizens cannot enforce these against the state. Judicial or constitutional review allows a person to appeal against a law or executive orders in court, if this person believes that the law in question violates his or her rights. If the court finds that the law does indeed violates the constitution, than the law will be declared void to the extent that it conflicts the constitution.

When it comes to constitutional review, there are basically two system: review by ordinary courts or review by a special body, often called constitutional court or council. The first system originates from the USA, where the Supreme Court has claimed its authority to review laws on their constitutionality. Though constitutional review is mostly from its US application, the US constitution does not grant this power explicitly to the court system. More recent constitutions, such as the German Basic Law, explicitly grant this authority to the Federal Constitutional Court.

A special case are the Netherlands. Like in most other nations, the Dutch constitution includes a bill of rights. However, it has a clause (article 118) which explicitly prohibits courts to review laws on their constitutionality. The rationale behind this prohibition is that the Houses of Parliament, the Council of Ministers and the Council of State, will provide for enough scrutiny of bills, which would ensure that no laws are passed which violates the constitution. However, as everyone in the Netherlands knows, in reality the political composition of parliament determines whether a bill is approved or not, and not its constitutionality.

Though constitutionally enshrined rights are meaningless without the possibility of constitutional review, the reverse is not true. In federal countries power is shared by the states and the federation, and the constitution determines what powers belong to either the federation or the states. Most federal constitutions include a list of exclusive powers belonging to the federal government, and other powers belong to the states by default. A very few federations do the opposite, granting explicit powers to the states and all other powers to the federal government.

In a federal country, a government might not make laws on matters on which the other government has exclusive authority. If for example the federal government attempts to legislate on a matter, which is reserved by the constitution to the states, than the state government can ask the court to review the law. Constitutional review is essential in federal systems, since otherwise states and federal government will attempt to make laws on matters outside their authority.

Though the terms constitutional and judicial review are often used interchangeably, they are not identical. Many countries are party to human rights treaties, such as the ECHR, and since treaties usually prevail above domestic laws, citizens are able to review laws on their compatibility with such human right treaties. This especially of great importance in a country as the Netherlands, where there is no constitutional review.

Space settlements could create a similar treaty, and subsequently adopt constitutions without bill of rights. This has the advantage that treaties can usually only be amended by unanimity of the adherent parties. But on the other hand, a state might unilaterally secede from such treaty. Therefore we recommend that space settlements to include a bill of rights in their constitutions, and allow constitutional review.

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