Federalism, Individual Rights and Judicial Engagement

Contemporary “rights talk” under the American Constitution tends to focus on individual rights or those rights that can be perfected in the case of a single individual. This would include, for example, the rights to free expression, free exercise of religion, sexual autonomy, or the right to equal treatment. Under the broad umbrella of individual-rights talk, theoretical discussions generally involve whether courts ought to recognize a particular individual right or what level of scrutiny (or engagement) ought to apply to judicially identified individual rights. From the beginning of our history as a nation, however, the concept of legally cognizable rights has included far more than just individual rights. At the time of the founding, legal and political commentators viewed the liberties of the people as including individual, majoritarian, and collective rights. The cry of “no taxation without representation,” for example, is a demand for the right of majoritarian political representation. The revolutionary “Right of the People to alter or to abolish” an oppressive government, as announced in the Declaration of Independence, is a collective right that can only be perfected as part of a broad cultural movement. All of the rights mentioned above are held by individual citizens. But where a single individual may exercise an individual right, majoritarian and collective rights are participatory; they can be successfully exercised only as part of a larger group effort of which the individual is but a member. In the case of democratic elections and legal revolutions, the individual participates with others in the exercise of majoritarian and collective rights, both involving the exercise of rights appertaining to idea of self government. Our Constitution enshrines these majoritarian and collective rights of self government in a variety of ways, from the procedures by which majorities elect members of the political branches of government, to the manner by which the Constitution itself may be “altered or abolished.