unit 9 Flashcards
What are the implications of characterizing constitutional rights as rules or
principles?
The characterization of constitutional rights as either rules or principles significantly influences their interpretation, application, and adjudication, with rights as rules emphasizing absolute protection against government actions and judicial supremacy, while rights as principles allow for balancing rights with competing societal interests, offering flexibility but also raising concerns about judicial overreach and the dilution of rights.
Is there a common conception of constitutional rights? Can they be limited? Under
what conditions?
There are two primary conceptions of constitutional rights—rights as trumps, which treat them as absolute protections that override conflicting legislative actions, and rights as principles, which allow for limitations based on balancing against societal interests under conditions like legality, proportionality, and the preservation of the essence of the right—while the scope of these rights may extend to both public and private actors through vertical and horizontal effects, with the latter encompassing direct and indirect influences on private relationships, as illustrated by cases like Lüth.
How can the scope of constitutional rights be conceived? Are private actors bound?
What is the ‘indirect horizontal effect’ of constitutional rights?
Constitutional rights protect individuals and groups from infringements, with some rights being universal and others reserved for citizens, traditionally binding the state in a vertical relationship, but in modern societies, they may also apply horizontally to private actors, either directly or indirectly through legislation and judicial interpretation, as demonstrated in the Lüth case, with varying approaches across systems that balance constitutional values and the autonomy of private entities.
What are negative and positive constitutional rights? Is this a convincing
distinction?
Negative constitutional rights, or defensive rights, require the government to refrain from interfering with individual freedoms, such as freedom of speech or religion, while positive rights, or entitlements, demand government action to provide certain goods or services, such as education or healthcare; however, the distinction between these rights is increasingly questioned, as negative rights often require state resources for enforcement, and positive rights may not always involve active state intervention, leading to a more integrated understanding of rights in modern constitutional systems.
Define categorization and proportionality and describe their original historical and
theoretical backgrounds.
Categorization involves defining the scope and boundaries of constitutional rights to distinguish protected from non-protected interests, with historical roots in systems like the U.S., while proportionality is a legal principle used to evaluate whether limitations on rights are justified by balancing the goals of a measure with its impact on the right, originating in 18th-century Prussia and expanding after World War II, with categorization emphasizing rigid, absolute protections and proportionality favoring a more flexible, balanced approach.
Illustrate the structural differences between categorization and proportionality by
referring to Griswold v. Connecticut and Multani.
The cases of Griswold v. Connecticut and Multani v. Commission scolaire Marguerite-Bourgeoys illustrate two distinct methods of constitutional adjudication: categorization, which focuses on absolute rights and predefined boundaries, as seen in Griswold’s application of privacy rights, and proportionality, which involves balancing competing interests through a multi-step analysis, as demonstrated in Multani’s examination of religious freedom and school safety.
Illustrate the structure and operation of proportionality review with a view to
Multani. Compared with categorization, is it more or less exposed to charges of
politicization?
In Multani v. Commission scolaire Marguerite-Bourgeoys, the Canadian Supreme Court applied proportionality review by assessing whether the school board’s policy on religious symbols infringed Multani’s freedom of religion under Section 2(a) of the Canadian Charter of Rights and Freedoms, balancing the legitimacy and necessity of the safety objective with the minimal impairment of rights, ultimately striking down the policy as disproportionate due to its minimal safety benefit compared to the harm to religious freedom, highlighting the flexible but potentially politicized nature of proportionality compared to the clearer, less discretionary approach of categorization.
How is freedom of speech given effect in Lüth? What manifestation of horizontal
effect does it instantiate?
In the Lüth case, the German Federal Constitutional Court applied freedom of speech under Article 5 of the Basic Law by interpreting private law (Article 826 of the German Civil Code) in light of constitutional principles, balancing Lüth’s right to express his views against the producer’s economic rights, and establishing the indirect horizontal effect of constitutional rights, whereby constitutional principles influence the interpretation of private law, thus ensuring that freedom of expression serves public interest without directly binding private parties.
