In the United States there is a long history of judicial use of the
federal constitution to declare invalid both acts of the president and
even federal legislation (‘judicial review’). The main parts of the
constitution which have been used in this way are the first ten
amendments to the constitution (which include the rights to free
speech and assembly as well as, more controversially, rights against
self-incrimination and the right to bear arms). Also important are the
Civil War amendments (13–15) against slavery and racial dis-
crimination. These clauses are still more frequently invoked against
state and local authorities. There are many examples of brave
decisions by the Supreme Court to defend individual rights (say to
free speech) in this way, but also of decisions by the court to prevent
progressive social measures being implemented in the name of
property rights. The political and social climate of the times has
clearly influenced court decisions on many occasions: as, for instance,
in 1896 (Plesseyv Ferguson) when it declared that ‘separate but
equal’ facilities for Negroes on a railway train were constitutional.
Again in 1954 in Brownv Board of Education of Topekawhen it
declared that separate educational facilities for black students could
not, in fact, be equal. In brief, a Bill of Rights takes power away from
elected politicians (and bureaucrats) and transfers it to lawyers and
may not always have the positive outcome its (often left-wing)
British proponents anticipate.
Dicey (1959) and other traditionalist British constitutionalists, have
preferred to rest their hopes for the protection of individual rights on
a widespread attachment by all Britons to their ancient common law
rights. These are reaffirmed in historical documents such as Magna
Carta and the Bill of Rights, but not legally entrenched by them
against later legislation. Asserting the responsibility of the executive
to the popularly elected Commons for all its actions is seen as a major
guarantee of rights for the individual. MPs have traditionally been
prepared to defend the rights of their constituents of any party by
interrogating ministers on their behalf in the Commons. Various
features of the common law have been seen as a superior protection
for individuals to either US constitutional guarantees or continental
systems of special administrative courts. These features include the
right to trial by jury, the right to silence in court and under police
interrogation, and the writ (now judicial order) of habeus corpus
(‘produce the body’),
DEMOCRACY 183