(Summary) Waldron’s Critique of Constitutional Rights

When we say we have rights, do we necessarily mean that they have to be constitutional rights? Is that even desirable?

Is there necessarily a connection from moral to legal rights?

  • Is it the true that when we talk of rights, the moral “ought” is the same as the legal “ought”? First of all, declarations of morality do not themselves entail anything about legality.
  • What would be the legal implications of “I have a right to be told the truth”?
  • To the extent that “P has a (moral) right to X” says anything about the legality of X, it simply is that “The law ought to be the case that P gets X”, not “P has a legal right to X”
  • Legal rights have to refer to specific rights where P would have recourse to X withing legal systems and institutions, where P can demand unless exceptional circumstances.
  • The alternative case is where the state tries to allocate X for P in systems not necessarily through legal mechanisms, nor given the same legal importance as Legal Rights.
  • To say the one has a moral right to X is to claim the importance of X, but not synonymous with claiming that X has importance in accordance to specific legal or bureaucratic procedures.
  • Consider, for example, the moral right to welfare as falling into the second type of rights.


Constitutional Rights

  • Independent of the previous argument, let’s consider Constitutional Rights. Does it follow, from P having a moral right to X, that “P ought to to have a constitutional right to X”?
  • It is here that we must raise to importance of practical considerations:
  • a) Problems with words. given the significance of the constitution, words and terms are often overemphasised. For example,  “what does “speech” mean? Is porn considered speech? Is racial abuse speech? What does “cruel and unusual punishment” or “religion” mean? None of these have any shed light upon the substance of the rights themselves.
  • Whilst statutory language could fall into similar problems, they are amendable with changing senses of words.
  • Further, the evolution of phraseology could be even better achieved under systems of common law and operating based on precedents.
  • b) Immunity against legislative change disables the legislature’s functions to reform, revise and innovate the law.

The Principled Problem of Constitutional Rights

  • c)  The attitude behind constitutional thinking implies 1) self assurance that this right, as I have formulated, is the correct form of the right, and 2) mistrust against future legislators and populations, who may be ill-intended or wrong.
  • If we consider future generations/legislators as less capable of moral decisions, how does that square the reason for having rights to begin with, namely, that humans are autonomous thinking agents equally capable of moral deliberation?
  • Or we may fear that citizens, unhinged and acting purely in self interest, would violate rights of others. If so, it seems difficult to explain the basis for baring rights at all. That is, theories of rights all assume that individuals have moral autonomy capable of making distinctions between self interest and fundamental characteristics of human dignity.

Theories of Authority

  • Rights are controversial and there is no unanimous verdict on its contents, priorities etc. Yet we cannot leave them undecided and thus there needs to be theories of authority to complement deliberation of rights.
  • Few points of consideration
  • 1. Theories of authority should complement, not replace, a theory of rights.
  • 2. The theory needs to cannot be referential to theory of rights, for that itself is the content of dispute. Thus cannot say, as Dworkin does, that rights just trump/override majority decisions, since the theory of rights itself is disputed.
  • 3. There could thus a dissonance between what one considers the just choice and the choice undertaken according to the theory of authority.
  • 4. The theory cannot fall into relativism/conventionalism/subjectivism concerning, but rather just the acknowledgement that realistically, there will be disagreements, and the current arrangements, in effect, are placeholders.

Right To Participate

  • The point of political philosophy is to be able to make political concepts clear and justifiable to all. Sure, the discussion is in more depth, but that is due to the nature of division of labour, rather than the discussion itself being different in any way.
  • Thus discussion ought to open up to the public and not to treat them with cynicism, as though they only have self interest on their mind.
  • More fundamentally, we need to see the right to participate and self governance itself. Because of Aristotlean concepts of humans as political animals. Because of how it is a form of self protection. Because the quality of deliberation… and so forth.
  • In short, the right to participate is an end in itself.

Constitution and participation

  • Given the importance of participation, should it be written into constitutions? That is, to safeguard democracy from majoritarian aberrations?
  • But no. The procedures and complexities of participation are themselves up for debate. Things such as constituencies, frequency of elections, funding, voting mechs etc.
  • That is not to say that these matters are to be left open, but that there has to be an authoritative procedure in deciding rights.
  • But doesn’t that beg the question? How can you manage disagreements about authority under a certain mode of authority? If you disagree on democratic procedures, how can you use democratic procedures to settle the disagreement?
  • Waldron claims not. That this is a problem for any solution to the problem of authority. It is an uncomfortable position, but not question begging- the question of “procedure A vs procedure B” when settled under procedure A does not necessarily favour A over B.
  • The need for recognising why we cannot be dogmatic on views of participation becomes even clearer when we consider the overlap between procedures and substances of deliberation- e.g. valuing autonomy influences how one values procedures and things such as freedom.


  • Given all this, a bill of rights need not involve entrenchment of one particular conception of rights, and certainly to include procedures for amendment.
  • Given this, there also needs to be means by which we make reforms.
  • Three potential responses
  • 1) Dworkin’s observation is that judicial reinterpretation of constitutions is inevitable, since after all it is the role of judges to interpret law. Waldron, however, thinks that there is no reason to believe why it should only be judges who have this power.

    Further, in the process of revision, judges have, say, interpreted law and creating new legal terms that today are used as commonly in legal thinking as constitutional terms themselves. Given this influence, the need for other institutions to be able to revise the constitution seems even stronger

  • 2) The judiciary’s democratic credentials.  The appointment of supreme court judges by the US President, or PM’s advice on judges in the UK place a role. Waldron thinks this is not enough; there simply is not the same level of accountability. Nor is it that judicial authority necessarily overrides parliament. Yes there are democratic credentials, but not a stronger one than the legislature or executive.
  • 3) That other institutions themselves are imperfect. But that is not a justification for exclusion of participation (see Women, African-Americans) but rather an argument for making the institutions better.

Self Restraint

  • But we cannot just point to “popular support” for something and make it the case. After all, we can vote ourselves into a dictatorship. The procedure could be democratic, but not the outcome itself
  • How could we reconcile these gaps? The answer is not in fixed constitutional rights.
  • One justification for fixed rights is on the grounds of Pre-Commitment, such as when one binds future self not to drink-drive and authorises others to stop them from doing so.
  • Yet unlike a drinker, a polity has no consensus on what should be restrained (or not), or how.
  • A more appropriate analogy, Waldron says, is if one commits oneself to a religion despite being uncertain, and asks for a friend to lock all other religious texts away for them. At a later point, they ask for the key to the locked texts.
  • In the theological case the friend has to be taking stances between two (or more) conflicting selves absent mental aberrations or influences. To deny the keys would thus uphold the view of the previous self, neglecting the future self’s equal claim to the texts in dealing with theological questions.
  • Likewise, upholding a fixed constitution would be to uphold the views of one group of legislators above those of future generations, despite the two having an equal claim to deciding.
  • Sustaining pre-commitment only respects the autonomy of the individual if it is to bind a future self less capable of deliberation, as with the drunk driver under alcohol influence. The same cannot be said of simply changing the mind


  • Whilst we support rights, it does not follow that an institutionalised Bill of Rights the way to go.
  • At its core, it’s undemocratic in placing the views of one group over another, inconsistent with how we have expanded franchise and democratic participation in democracies.
  • Of course procedures need to exist to resolve disputes, and these procedures are possibly contested. Yet that will be a problem for any given procedure of resolution. The comparative thus, is between undemocratic denial of rights (under fixed constitutional rights) or democratically done.

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