Defending Human Rights in Times of Constitutional Crises
According to Barry Weingast, constitutional enforcement requires coordinated social responses to transgressions (Weingast 1997). When what is a transgression is unclear, constitutional courts can provide focal points for how the constitution should be interpreted (Vanberg 2011). In many instances, the interpretation is obvious. Suppose a law were passed that anyone owning a home larger than 2,400 square feet will be expropriated and their footage redistributed to those in need. It would be clear that even though such a law may advantage a majority of citizens, it would violate individual rights. There is no doubt about the constitutionality of such legislation, which is precisely why we do not see verdicts invalidating such expropriations, at least not in established democracies.
In less established democracies however, where the rule of law tradition is still in its infancy, there are considerably more issues that call for clarification from Constitutional Courts. In part because the constitutions themselves are younger, but also, in part, because their societies are not yet well socialized to the ideas of rule of law. For this reason, the stakes are much higher when constitutional crisis strikes a young democracy. In particular, human rights, such as rights of religious and ethnic minorities are endangered. The dilemma of how to guarantee individual rights at times of constitutional jeopardy is a universal one and is equally relevant in the established democracies of the US or Western Europe. However because young democracies are more sensitive to such crises, examining ways in which human rights can be protected offers there a laboratory for designing and studying such responses in more mature democracies.
Monika Nalepa, Associate Professor of Political Science and the College, University of Chicago
Tom Ginsburg, Professor of International Law and Political Science, University of Chicago
Susan Gal, Mae & Sidney G. Metzl Distinguished Service Professor of Anthropology, of Linguistics, and of Social Sciences in the College and Director of the Center for Eastern European, Russian and Eurasian Studies (CEERES), University of Chicago
A two-day conference was held at the University of Chicago on May 18-19, 2018. The conference was open to the public, and participants presented on the topic of human rights in times of constitutional crisis. More details.