Steering the Ship of State: Fundamental Rights, State Power and Janus-faced Constitutionalism

Abstract

This paper makes three arguments. Firstly, the rights-based constitutionalism that has emerged in the wake of cases such as Brown v Board of Education and the ‘Rights Revolution’ is formally analogous but substantially different to earlier, more ‘classical’ forms of negative constitutionalism: it can be seen as a mutated form of the earlier template. Secondly, a key element of the difference between classical negative constitutionalism and rights-based constitutionalism is the ‘Janus face’ that it adopts to state power: it combines elements of classical negative constitutionalism with the periodic positive embrace of state power where necessary to deliver on its professed ambitions. Thirdly, this form of constitutionalism aims towards the achievement of a ‘total constitution’, whereby the exercise of state power is steered in all its aspects towards rights-friendly goals. These aspirations are reined in by the inherent indeterminacy of rights review, its inevitably limited impact and ultimately by its complex and contested relationship with popular sovereignty. However, perhaps ironically, these limits ultimately serve to lend strength to rights-based constitutionalism. By steering the exercise of state power towards giving effect to human rights, it places a considerable burden of justification on those who wish to push back against this direction of travel