The issue of the respective roles of courts and legislatures in defending ― and defining ― individual rights and liberties is a controversial one. Some, like Jeremy Waldron, argue that protecting rights is the legislatures’ job, at least in the last resort. Others, like Dahlia Lithwick and Sonja West, apparently believe that rights are the exclusive preserve of courts, and should never be put to a democratic vote. A brief recently been filed in the Supreme Court of the United States makes something like the latter argument, and so is a useful occasion to revisit it (I have previously criticized it here).
The brief, filed by what Lyle Denniston describes as “a loose coalition of child welfare organizations, survivors of clergy child sexual abuse, and non-believers” argues that a statute enacted by the U.S. Congress to exempt religious believers from the application of laws which impose “substantial burdens” on their exercise of their religious beliefs (by requiring to do something their faith prohibits or preventing them from doing something it commands) unless the law is the least restrictive means to realize a “compelling” objective is unconstitutional. The statute, called the Religious Freedom Restoration Act (RFRA) was enacted to cancel the effect of the U.S. Supreme Court’s decision in a case known as Employment Division v. Smith, 494 U.S. 872 (1990), which held that the U.S. Constitution did not require such religious exemptions from laws of general application not specifically intended to burden religious practice. The brief argues that the enactment of the RFRA is, among other horrible things, a usurpation of the Supreme Court’s role in defining constitutional rights.
The brief claims that in enacting the RFRA, “Congress shoved the Court aside” (10), and makes much of the fact that
[t]he hearings before Congress were almost exclusively a litany of criticism against this Court and the Smith decision, accompanied by demands that Congress reverse this Court’s reading of the First Amendment. (13)
As the brief sees it, the RFRA’s grant of an entitlement to religious exemptions was “in defiance of the Court’s opinion” (14). Furthermore, the brief claims that the RFRA
is a formula that would make it possible for Congress to meddle with any constitutional doctrine and decision, and move the Court to the sidelines as political winds shift constitutional standards by simple majority votes. (18)
The implementation of constitutional rights is the Supreme Court’s job, and Congress is both out of its depth and outside its proper remit in attempting to do it.
Unlike for Ms. Lithwick and Ms. West, the brief’s underlying concern is that the legislature has interpreted rights (in this case, religious freedom) too broadly, not too narrowly. But the conclusion of both arguments is the same ― the courts, and only the courts, are the proper forum for defining the scope of individual rights. Legislatures cannot make rights either narrower or broader then what (in the courts’ view) the constitution requires. While I do not quite know what to make of its merits at a matter of American constitutional law, as a matter of principle this claim is nonsensical and dangerous.
Consider, first, its logical implications. If, say, the U.S. Supreme Court were to hold that the restriction of marriage to opposite-sex couples is not unconstitutional, it would be wrong, on the brief’s theory, for American legislatures to legalize it. If the constitutional guarantee of equality does not include same-sex marriage, the legislatures have no business enacting “marriage equality.” Similarly, on the brief’s theory, it was presumably wrong for States to reject segregation after the U.S. Supreme Court held in Plessy v. Ferguson, 163 U.S. 537, that “separate but equal” public facilities were not unconstitutional. If Congress granting religious believers greater rights than the Supreme Court is “defiance,” then surely so is the rejection of the “separate but equal” principle.
Such results would not only be morally distressing, but also absurd. Saying that something ― religious exemptions, same-sex marriage, integrated schools ― is not required by the Constitution is not equivalent to saying that it is prohibited. A constitution is a minimum standard, a baseline below which the state cannot go in affecting individual rights. It does not conclusively define rights, but merely says that rights are no narrower than a certain core which it protects. In polities with judicial review of legislation, the courts are charged with defining this protected core of rights by interpreting and applying the constitution. But judicial review is not meant to deprive legislatures of any role in implementing the citizens’ rights. They can go further and/or faster than courts ― and often do, whether in abolishing the death penalty, decriminalizing homosexuality, enacting protections for journalists’ sources, etc. When legislatures do this, they do not take over the judiciary’s “power to interpret the constitution.” They do not interpret the constitution at all. They simply, and properly, go above and beyond the constitution’s minimum requirements. This does not subject individual rights to a (constitutionally) unacceptable majoritarianism. Of course, ordinary legislation expanding rights beyond the constitutional requirement can, at least in theory, be repealed by simple majority vote. But a repeal would not affect the constitutional protection. It would do nothing worse than return the understanding of the affected right to that of the judiciary.
The opponents of judicial review argue that the scope of individual rights is subject to good faith, reasonable disagreement, which ought to be settled by the political process. A polity’s decision to protect individual rights by means of judicial review must be based on a belief that the core scope of some rights is not subject to such disagreement; that a decent society must agree that these rights mean at least that (that which entrenched in a constitutional bill of rights), whatever else they might also mean. This belief does not imply that the scope of these rights is not subject to reasonable disagreement at all. Freedom of speech, freedom of religion, equality, and other rights are difficult concepts. There is nothing wrong with saying that, once the protection of a core of these rights is constitutionally guaranteed, there is room for disagreement about their full scope ― and for laws that extend that scope beyond the core protected by the judiciary.