A Right-Based Critique of Constitutional Rights

TLDR: In this paper, the authors argue that each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override, unless that involves some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.

Abstract: 'Individuals have rights, and there are things no person or group may do to them (without violating their rights)." 'Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.'2 'There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.'3 These are familiar propositions of political philosophy. What do they imply about institutions? Should we embody our rights in legalistic formulae and proclaim them in a formal Bill of Rights? Or should we leave them to evolve informally in dialogue among citizens, representatives and officials? How are we to stop rights from being violated? Should we rely on a general spirit of watchfulness in the community, attempting to raise what Mill called 'a strong barrier of moral conviction' to protect our liberty?4 Or should we also entrust some specific branch of government-the courts, for example-with the task of detecting violations and with the authority to overrule any other agency that commits them?