Moral and Constitutional Rights
Some theorists oppose deference not because it is haphazard but because it is incompatible with respect for fundamental rights. They argue that compromising human rights is a price a legitimate state should never have to pay, and constitutional review is there to ensure that this does not happen. Against this line of argument the chapter argues that there is nothing in the logic of constitutional rights that precludes deference. To this effect, it defends a distinction between moral and constitutional rights. Drawing on TM Scanlon’s controversial theory of rights it maintains that constitutional rights are clusters of principles of political morality, not all of which correspond to deontological constraints about what under no conditions we may do to the right holder. Importantly, some of these principles also reflect the importance of sharing fundamental rights protection amongst state institutions. The chapter then connects this understanding of constitutional rights and political legitimacy.