Constitutional Rights and Constitutional Design

Paul Yowell is Associate Professor of Law at the University of Oxford, and Fellow and Tutor in Law at Oriel College, Oxford.

• 1. Introduction I. Removing the Blindfold II. Scope of the Argument III. Recovering Montesquieu 2. The Adjudication of Constitutional Rights I. Constitutional Rights and Ordinary Legal Rights II. Proportionality in Practice III. Proportionality in the US? IV. Absolute and Prima Facie Rights V. Rights, Proportionality and Utilitarianism VI. Rights as Interests VII. Moral and Empirical Reasoning VIII. Other Adjudicative Methods IX. Conclusion 3. Are Rights Trumps? I. The Shielded-Interest Theory II. The Filtered-Preference Theory III. Constitutional Rights and Statistics IV. Revision of the Filtered-Preference Theory 4. Judicial Capacity and Empirical Research I. Empirical Research and the Origins of Proportionality II. Empirical Evidence in the US Supreme CourtIII. Adjudicative Facts and Legislative Facts IV. Finding Legislative Facts V. The Courts and Social Science VI. Case Studies VII. Conclusion 5. Comparative Analysis of Institutional Capacities I. The Basic Structure of Judicial Reasoning II. The Basic Structure of Legislative Reasoning III. Capacity for Empirical Reasoning IV. Capacity for Moral Reasoning V. The Tyranny of the Majority? VI. Capacity to Protect Minorities VII. An Historical Perspective VIII. Conclusion 6. The Problem of Entrenchment I. Legal Change and the Rule of Law II. Rawls and the Perpetual Constitution III. The Rarity of Constitutional Amendment IV. The Legislative-Judicial Method of Reversing NullificationDecisions V. Conclusion 7. Judicial Review and Constitutional Design I. The American and Kelsenian Models II. Designing a Constitutional Court III. Council of Revision IV. Does the Legislature Need a Check? V. Deference VI. Conclusion