CHAPTER 6
WHY WE NEED BINDING CONSTITUTIONAL DIRECTIVES
I INTRODUCTION
This chapter defends the justifiability of a constitutional order that I label “binding declarative constitutionalism.” Such an order is characterized by the constitutional entrenchment of pre-existing moral/political duties binding the legislature
(constitutional directives). Constitutional entrenchment of moral/political duties does not merely replicate the pre-existing moral/political duties. For various reasons (to be discussed below), constitutional entrenchment transforms the pre-existing contestable moral principles into more concrete determinate less contestable norms partly identifiable by using precedents, practices and conventions.
1
The rationale justifying binding declarative constitutionalism is established in two main steps. First I argue that mere conformity on the part of the legislature to its duties is not sufficient; conformity ought to emanate from these duties; i.e., the legislature ought to act from duty not merely in accordance with it. Further, I argue that for a legislature to act from duty implies that its (duty-bound) decisions are politically understood and interpreted to be binding rather than discretionary. Second
I show that the indeterminacy and contestability of the legislature’s moral/political limitations precludes the possibility of attributing to the legislature decisions and acts performed from duty (rather than merely in conformity to it). Although individual legislators can of course act from their moral/political duties, the legislature as such cannot. To speak of a legislature acting from its duties (rather than merely in conformity to them), such duties must be constitutionally entrenched.
Legislatures ought to make decisions on the basis of different types of considerations.
At times, they are duty-bound to act (or not to act) in certain ways. At other times, they make decisions, which are grounded in policy-based considerations.
2
Constitutional entrenchment of pre-existing moral/political duties is founded on the conviction that the distinction between duty-based considerations and other considerations ought to be institutionalized and different decisions ought to be
1 For analyzing some of the reasons why constitutional directives do not for this, see Larry
Alexander, Of Living Trees and Dead Hands XXII Canadian Journal of Law and Jurisprudence 227,
230 (2009).
2
Note that to be bound by a duty in this context may mean that the decision is completely dictated by the duty, e.g., when the legislature protects certain freedoms that it is morally/politically bound to protect. But, often, it merely means that in pursuing its goals the legislature does not act in ways that contravene its duties. To act in conformity with its duty on the part of a legislature does not therefore entail that the duty fully dictates the legislature's decision, merely that the duty limits, constrains or shapes the legislature’s decisions. This type of motives is called by Kant limiting conditions, contrasted with cases where the duty is a primary motive. The motive of duty in such cases is as an effective limiting condition requiring that the agent not act contrary to duty. See Immanuel
Kant, . See also Barbara Herman, On the Value of Acting from the Motive of Duty in Barbara
Herman, The Practice of Moral Judgment 1, 14-17 (1993).
1

identified publically as falling under the appropriate category of decisions, namely either as duty-based or ones that are based on inclinations/discretion.
There are two primary reasons for the significance of public recognition of this distinction. First, it is important that some decisions be non-controversially attributed to duties in order to entrench the significance of duties in public deliberation. If each and every decision can be attributed to the legislature’s inclinations, the sense of duty and its significance in public discourse is eroded. Second, there is a fundamental difference between protecting a right, e.g., a right to free speech and granting a privilege, e.g., a privilege to speak. The latter is a gesture grounded in the legislature’s inclinations; the former is a non-discretionary right-based duty. Most significantly protecting a right is typically an assertion concerning the reasons underlying the protection and such an assertion has important ramifications. It is only by entrenching constitutional duties that the difference between the two types of legislative decisions can be institutionally acknowledged.
Binding declarative constitutionalism is a constitutional order characterized by a set of constitutional norms (directives) that impose binding constitutional duties on the legislature to legislate or not legislate in certain ways. In contrast to non-binding constitutionalism, the constitutional directives characterizing binding declarative constitutionalism are binding; they impose duties on the legislature rather than merely set discretionary recommendations.
3
In contrast to full-fledged constitutionalism, binding constitutionalism does not necessarily contain formal mechanisms of enforcement.
Constitutional theorists examined extensively the legitimacy/desirability of the institutional enforcement mechanisms designed to enforce constitutional duties, in particular, the legitimacy/desirability of judicial review.
4
Opponents and proponents of judicial review differentiate between “strong” and “weak” judicial review and evaluate the pros and cons of each system.
5 Chapter VII will join this debate and
3 As I later argue it is not clear that existing constitutions ever contain non-binding provisions.
But there is nothing which in principle precludes the possibility of non-binding constitutional provisions.
4 See, e.g., Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999); Mark
Tushnet, Taking the Constitution away from the Courts (Princeton University Press, 1999); Mark
Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law (Princeton University Press, 2008); Adrian Vermeule, Law and the Limits of
Reason (New York: Oxford University Press 2009).
5 See e.g., Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights-and
Democracy-Based Worries, 38 WAKE FOREST L. REV. 813, 814 (2003); Mark Tushnet, Alternative
Forms of Judicial Review, 101 MICH. L. REV. 2781 (2003); Stephen Gardbaum, The New
Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L.707 (2001). Weak judicial review is however only one instance of a phenomenon Adam Shinar and I labeled “constrained judicial review”.
Constrained judicial review differs both from legislative supremacy and from judicial supremacy. On the one hand, theories of constrained judicial review reject legislative supremacy, as these theories affirm that courts have a privileged status in interpreting the Constitution. However, these theories also reject judicial supremacy, as they maintain that judicial constitutional privileges should be constrained
2

defend judicial review on non-instrumental grounds. Yet, independently of the virtues and vices of different forms of judicial review (and/or other mechanisms of enforcement), one ought also to inquire whether binding constitutional directives are legitimate/desirable.
6
Establishing the (non-instrumental) value of binding constitutional directives (independently of whether they are enforced or not) is the primary task of this chapter.
I start with the (banal) observation that legislatures are morally/politically constrained. The mere existence of the moral/political limitations does not imply that constitutional entrenchment of these limitations is conducive to conformity with them.
7
It seems that to the extent that such limitations are justified, they ought to rest on contingent arguments concerning the effects of constitutional entrenchment on the conformity of the legislature with the moral/political limitations. This chapter challenges this view and defends the constitutional entrenchment of pre-existing moral/political limitations on other grounds. Under the proposed justification it is only by entrenching the pre-existing moral/political limitations that the legislature can be said to act not merely in conformity with its duties but also from its duties.
Part I defines the concept of binding declarative constitutionalism and binding pure declarative constitutionalism. It also establishes that binding pure (non-enforceable) declarative constitutionalism is a prevalent phenomenon and can be found in many jurisdictions. The prevalence of binding pure declarative constitutionalism indicates that constitutional constraints on the power of the legislature are perceived to be valuable independently of the existence of enforcement mechanisms such as judicial review. Part II examines whether this conjecture is justified; it defends binding declarative constitutionalism.
II THE PREVALENCE OF PURE BINDING DECLARATIVE
CONSTITUTINOALISM
Binding declarative constitutionalism is a constitutional scheme characterized by the existence of binding constitutional restrictions constraining the legislature. To denote and greater constitutional responsibilities ought to be given to non-adjudicative institutions, e.g., the legislature or even the executive. See Alon Harel & Adam Shinar, Between Judicial and Legislative
Supremacy: A Cautious Defense of Constrained Judicial Review (forthcoming in International Journal of Constitutional Law.
6 As a matter of fact, many of the arguments provided against judicial review could be used against the adoption of constitutional directives. For establishing that Waldron’s arguments against judicial review can be used to criticize non-enforceable bills of rights, see
Larry Alexander,
What is the Problem of Judicial Review? University of San Diego, Legal Studies Research Paper no.
07-03.
7 Sometimes entrenchment is detrimental to conformity. This may happen in cases of a political conflict between state and federal units. In Canada for instance, the resistance to the Charter
(and, in particular, to issues concerning the status of French culture led Quebec legislature to make an extensive use of the Notwithstanding Clause in the Canadian Charter. In Israel the conflict between the legislature and the courts prompts often legislative initiatives that are unconstitutional.
3

the binding constitutional norms I use the term “constitutional directives” that is often used in constitutional theory to denote unenforceable constitutional norms.
8
Constitutional directives can be binding or non-binding, enforceable or nonenforceable. A constitution can (at least in theory) contain norms that do not bind legislatures but merely provides them discretionary guidelines, e.g., identifying certain norms as “constitutionally worthy” or “constitutionally unworthy” etc. To the extent that a constitution consists of such non-binding norms, such norms may be taken into account by legislatures in legislating. Further, non-binding constitutional directives can also serve non-juridical purposes of a constitution: they may have symbolic signfiicance,
9
or they may serve “integrative effects”, namely solidifying the relevant community and turning it into a harmonious polity.
10
The distinction between the binding nature of constitutional norms and the enforceability of constitutional norms is not always fully understood by constitutional theorists. Jeremy Waldron for instance attacks judicial review on grounds that, upon closer scrutiny, preclude the very entrenchment of binding constitutional directives
(independently of whether such directives are judicially enforceable or not).
11
But binding constitutional directives need not be enforceable by courts (or, for that matter,
8 See, e.g., Part IV of the Constitution of India.
9
10 See Dieter Grimm, Integration by Constitution 3 I-CON 193-208 (2008).
I have doubts whether there are any non-binding constitutional provisions but the question of whether such norms exist or do not exist is a matter of constitutional interpretation. Vague statements, sometimes labeled declarations are considered to be non-binding. But at least sometimes such declarations are simply unenforceable rather than non-binding. Constitutions often contain preambles and preambles often have less binding force than the constitution itself. For the debate concerning the binding force of the preamble, see Liav
Orgad, The Preamble in Constitutional Interpretation 8 I-con 714-738 (2010).
11
For this critique, see Larry Alexander, What is the Problem of Judicial Review? University of San
Diego, Legal Studies Research Paper no. 07-03. To see why Waldron's arguments are not primarily arguments about judicial review but arguments against constitutional entrenchment consider the following passage from Law and Disagreement :
"The democratic claim has always been that the people are entitled to govern themselves by their own judgments. So, to the extent that they invest the judiciary with an overriding power of judgment as to how something as basic as equal protection is to be understood, allowing that judgment to override the judgment of the people or their representatives on this very issue , it is undeniable that (in terms of the
Aristotelian taxonomy) they have set up what would traditionally be described as non-democratic arrangement."
See Waldron at 264.
Waldron's accusation that judicial review is non-democratic may or may not be correct. But note that, if indeed it is correct, it is not judicial review alone that is undemocratic but the very entrenchment of
"equal protection" as a binding constitutional norm – a norm which ought to be adhered to by the legislature. In Waldron's own terms we could say that the judgment that equal protection is a binding constitutional norm deprives citizens of the power to decide otherwise.
Of course one can differentiate between substantive or grave infringements of democratic principles and minor violations, and, further, maintain that judicial review is a major violation while constitutional entrenchment of unenforceable norms is a minor (and perhaps justifiable) violation. But Waldron is not fully aware that many of his arguments against judicial review can be used to criticize the very entrenchment of binding constitutional directives.
As a matter of fact even judgments such as "equal protection is a nonbinding constitutionally desirable feature of norms" may be a violation of democratic principles as, presumably some people may believe that justice does not imply equal protection.
4

by any other institution). This is not a mere theoretical possibility. As a matter of fact, there are constitutions that entrench constitutional duties that are not enforceable. The most famous example is the Indian Constitution that contains a chapter devoted to non-justiciable binding constitutional directives.
12
But, as the rest of this Part illustrates, other constitutions include either explicit or implicit non-enforceable binding constitutional directives.
Do such directives form part of “the law”? Are the duties imposed by such nonbinding directives part of the law? For the purposes of this chapter this question is irrelevant and I do not prejudge whether these directives are, properly speaking, part of “the law” or have a different non-legal status. Famously Dicey believed that the constitution consists of two types of rules: constitutional law rules and: “conventions, understandings, habits, or practices which though they may regulate the conduct of the several members of the sovereign power, of the ministry, or of other officials, are not in reality laws at all since they are not enforced by the Courts. This portion of constitutional law may, for the sake of distinction, be termed ‘the conventions of the constitution,’ or constitutional morality.” Under my terminology, constitutional directives are binding constitutional norms that can be written or unwritten, enforceable or unenforceable, originating in a custom or in a convention or drafted by the founders of the constitution. Yet, these norms are not merely moral/political norms; they are constitutional norms that impose constitutional (rather than merely moral/political) duties on the legislature. To complete our preliminary examination we ought to clarify two issues: 1) what makes a norm a constitutional norm 2) what makes constitutional norms binding constitutional norms.
If the constitutional directives are neither merely moral/political limitations nor
(necessarily) legal duties, what are they? To be a “constitutional norm” a norm ought to be accepted by the community of constitutional law experts and by the institutions whose behavior is regulated by these rules. It ought to be grounded in existing conventions, practices and understandings that generate it certain preciseness and determinacy. As this Part is particularly interested in norms that bind the legislature, the relevant community of practice consists of legislators, constitutional lawyers, and judges. Constitutional norms ought to guide the decisions of these communities and/or their understanding of the reasons underlying such decisions. Constitutional norms are those norms accepted by the requisite community “from the internal point of view” as binding. This leaves of course important questions open such as: who is the requisite community whose internal point of view counts? But those concerns are no different in nature than those characterizing the characterization of a norm as a legal norm.
Naturally, many and perhaps all legal systems that authorize courts to invalidate legislation or authorize courts to compel legislatures to legislate acknowledge the existence of binding constitutional directives. Courts are assigned in such systems the
12 The Indian Constitution Part IV.
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power to enforce the constitutional directives because these directives are binding. A declaration on the part of courts that a particular statute is invalid is typically a declaration that the legislature ought not to have legislated it in the first place.
13
Further a declaration on the part of the courts that a particular statute ought to be legislated is typically also a declaration that the legislature ought to have legislated it prior to the judicial decision. In both cases courts intervene because the legislature violated its constitutional duties.
Yet binding constitutional directives also exist in legal systems that have no institutional mechanisms of enforcement. Further, even when such enforcement mechanisms exist, courts are not necessarily assigned with the duty or even the power to protect all binding constitutional directives. Even in systems that establish judicial mechanisms for enforcing constitutional directives, some constitutional directives remain unenforced or under-enforced. Systems in which some or all of the constitutional directives are unenforceable exemplify what I label pure binding declarative constitutionalism. Pure binding declarative constitutionalism refers to systems in which there are binding constitutional directives that are unenforceable.
This chapter defends the view that there are reasons for entrenching binding constitutional directives. Further the reason for entrenchment is not (merely) the special efficacy of entrenched constitutional norms. One indication for the (perceived) importance of entrenching binding constitutional norms is the prevalence of such norms in different legal systems. Yet, the prevalence of enforceable binding constitutional norms cannot provide such an indication as, arguably, enforcement can easily be justified on alternative grounds, namely the greater efficacy of enforceable constitutional provisions. On the other hand, the prevalence of constitutional systems characterized by binding unenforceable constitutional directives is particularly valuable for my analysis. The prevalence of pure declarative constitutionalism indicates that constitutional directives are perceived to be valuable independently of the value of the efficacy of the enforcement mechanisms.
14
There are at least three different forms of systems characterized by pure declarative constitutionalism: 1) Some legal systems, e.g., Ireland or India contain explicit written constitutional directives that are binding but unenforceable. 2) Even in systems that do not contain written unenforceable constitutional directives, legal theorists often
13 At times, there are good reasons for legislatures to legislate unconstitutional norms or, at least norms whose constitutionality is disputed. As constitutional norms are vague it is sometimes desirable to legislate norms in order to trigger a public discussion concerning the constitutionality of the relevant norm and to reexamine the boundaries of constitutional norms.
Such norms may turn out to be unconstitutional but perhaps it was justifiable to legislate them in order to clarify their constitutional status.
14 Of course non-binding constitutional provisions can also be efficacious and their prevalence can also be explained on the grounds of their greater efficacy. Legislatures may be disposed to conform to binding provisions even when they are not enforceable. Yet, at least initially, it seems that enforceable binding constitutional directives are more likely to be conformed to by legislatures and, consequently their prevalence can be explained in instrumental terms.
6

identify such binding unenforceable directives and characterize some of the provisions as unenforceable. 3) Some legal systems endorsed binding constitutional directives without deciding in advance whether these directives are enforceable or not. The decision to enforce the constitutional directives is a byproduct of contingent judicial decisions that took place much after the decision to endorse binding constitutional directives. Further, at least, some theorists believe that the enforceability of the constitutional directives by courts is unjustified or illegitimate and, in fact, is the result of judicial putsch. Hence while such systems contain binding and enforceable constitutional norms, the enforceability of these norms is contested.
Each one of these cases indicates that unenforceable constitutional directives are perceived to be desirable. Let me explore further each one of these cases.
In some jurisdictions there are written binding unenforceable constitutional directives.
Two primary examples are the Indian and the Irish Constitutions. The Indian
Constitution contains two separate chapters, one on “fundamental rights” and the other on “directive principles.” The chapter on fundamental rights protects individual rights and is justiciable while the chapter on directive principles contains a long list of non-enforceable goals that are binding on the legislature and the executive but unenforceable. Article 37 of the Indian Constitution emphasizes both the binding nature of the directives and their non-enforceability. This Article states that the provisions of Part IV of the Indian Constitution “shall not be enforced by any court.”
It asserts also that the provisions in this Part are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” The standard interpretation of this provision is that the rights mentioned in the
Directive Principles are to be implemented by the executive and the legislative branches of the Indian state, and are not to be the subject matter of intervention by the courts.
15
Theorists also emphasize these two aspects (the binding nature of the directives and non-enforceability) as characterizing chapter IV of the Indian
Constitution. One theorist describes the status of the provisions of chapter IV as follows: “a law passed in violation of the directive principles should be regarded as ultra vires”; and, further, that “a law passed in violation of the Directive Principles is unconstitutional” and, yet a citizen would not be able to enforce a directive principle through a court of law.
16
Interestingly some of the founders of the Indian Constitution were opposed to introducing directives into the Indian Constitution and believed that non-enforceable
15 See Vijayashri Sripati & Arun K. Thiruvengadam, India, Constitutional Amendment Making the
Right to Education as a Fundamental Right, 2 Int’l J. Const. L.. 148, 149 (2004). An alternative interpretation is that” the fact that the Constitution says the principles ‘shall not be enforceable by any court’ does not mean they are not justiciable, for while enforcement connotes the availability of a remedy only, justiciability entails recognition from the law and validity for all purposes. See Alex H. Amankwah, Constitutions and Bills of Rights in Third World Nations: Issues of Form and Content 12 Adel. L. Rev. 14 (1989-90).
16 Joseph Minattur, The Unenforceable Directives of the Indian Constitution, 1 SCC (jour.) 17
(1975).
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directives are nothing but “political manifesto”.
17
The great fears were that the nonbinding directives would remain platitudes or pious wishes and would not be effective guides for legislation and policy.
18
Some contemporary constitutional theorists pursue this line of argumentation and claim that the use of directive principles “threatens: 1) to blur the dual-track separation between entrenched constitutional norms and political norms and 2) to undermine the supremacy of the constitution.”
19
The typical arguments used to justify the entrenchment of binding non-enforceable directives are instrumental ones. One prominent argument in favor of the directives was based on the conviction that the mere fact that the directives are not enforceable in court does not imply that there are no sanctions on their violation. It has been argued that: “the sanctions attached to the directives are therefore moral, political and judicial to the extent that they provide the framework in which fundamental rights are to be interpreted and understood.” 20
This statement points out the non-legal impact that the directives have, i.e., their educational significance. But it also points out towards some legal implications that can be enforced in the courts. The most important legal implication is that
“fundamental rights can be restricted when the public interest as formulated in the directive principles requires it.” 21
Although the directives of the Indian Constitution cannot be used to nullify legislation, they can be used as an instrument of interpretation and, in particular, they have been used to help the court to uphold laws that otherwise would be regarded as violating the fundamental rights part of the
Indian Constitution.
22
Under the view of the Indian Court: “the harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.” 23
The (limited) judicial ramifications of the Indian directives could be understood to be detrimental to my main claim as such ramifications suggest that despite the solemn declaration of non-enforceability of the directives, the directives influence judicial decisions and thus are enforceable. Yet the judicial ramifications of the Indian
17 Bertus De Villers, Directive Principles of State Policy and Fundamental Rights: The Indian
Experience, 8 S. Afr.J. on Human Rights 29, 32 (1992).
18 Ivor Jennings, The Approach to Self Government 19-20 (1956); J.C. Johari, The Constitution of
India – A Politico-Legal Study 82, 93 (2007).
19 Jeffrey Usman, Non Justiciable Directive Principles: A Constitutional Design Defect, 15 Mich.St.
J. Int’l L. 643, 645 (2007).
20 Bertus De Villers, supra note at 33.
21 Bertus De Villers p. 34. See, e.g., State of Bombay v. F.N. Bakara AIR 1951 SC 318.
22 Bertus De Villiers, Directive Principles of State Policy and Fundamental Rights: The Indian
Experience, 8S. Afr. J. on Human Rights 29, 33, 37 (1992).
J.C. Johari, The Constitution of India – A Politico-Legal Study 82, 89, 91-93 (2007) ; Keshavanand
Bharati v. State of Kerala, AIR SC 1461 (1973). In this case it was stated that: “Courts have a responsibility in so interpreting the Constitution as well as ordinary statutes as to ensure the implementation of the directives with the individual rights.” Peter E. Quint What is a Twentieth-
Century Constitution? 67 Maryland L. Rev. 238, 242 (2007).
23 Minerva Mills Ltd. V. Union of India, AIR SC 1789, 1809 (1980).
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directives are limited and the directives impose much broader duties than can be effectively enforced by the courts. For my purposes what is important is that the directives have two important features which characterize pure binding declarative constitutionalism: 1) they are generally unenforceable (or, at best, are enforceable only rarely) 2) the directives bind legislators; they are not discretionary.
India is not alone in solemnly recognizing binding non-enforceable norms. As a matter of fact, the Indian legislature imported idea from Ireland.
24
Article 45 of the
Irish Directive Principles of Social Policy states that: “The principles of social policy set forth in this article are intended for the general guidance of Oireachtas
[Parliament]. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any court under the provisions of this Constitution.”
One may often find declarations that emphasize the symbolic aspects of the directives contained in the Irish Directive Principles of Social Policy. Some regard these provisions as “an indication that the constitution was more than a legal document: it was the realization of the hopes and ideals of the population in general.” 25
At the same time, it is also asserted that these directives contain duties: “Although the directives are not justiciable they place parliament under a constitutional obligation to promote certain socio-economic ideals.”
26
Like the case of the Indian Constitution, the Irish Constitution has also some judicial implications. The Irish directives are used to interpret the constitution and ordinary statutes. They are also used to determine whether an unspecified right exists or not.
27
But such implications do not imply that the Irish provisions are judicially enforceable; only that they have some influence on judicial reasoning. As a general rule these provisions were not designed to be enforced in courts.
The Indian and the Irish constitutions contain explicit binding but unenforceable directives. Some constitutional theorists believe that binding but unenforceable duties exist even when constitutions entrench enforceability. A prime example is the US
Constitution that famously contains numerous enforceable binding constitutional duties. Yet, some prominent American theorists believe that in addition to the enforceable provisions there are “pockets” or spheres of unenforceable binding constitutional directives.
24 J.C.Johari, The Constitution of India – A Politico-Legal Study 82 (2007); Bertus De Villers at 30.
25 Bertus De Villers, Socio-Economic Rights in a New Constitution: Critical Evaluation of the
Recommendations of the South African Law Commission J.S.Afr.L. 429, 429 (1992).
26 De Villers id at 429.
27 De Villers id at 430. Byrne v. Ireland IR 1972 (241); Murtagh Properties v. Cleary IR 1972
(330).
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In a classical article on American constitutionalism, James Bardley Thayer defended this view. Thayer maintains that the courts: “can only disregard the Act when those who have the right to makes laws have not merely made a mistake, but have made a very clear one, so clear that it is not open to rational question.” 28
He further maintains that a person who is a member of the legislature may vote “against a measure as being in his judgment, unconstitutional” and later vote to uphold this same measure when it comes in front of him in his capacity as a judge.
29
This seemingly strange statement can be explained on the basis of Thayer’s conjecture according to which there is a gap between what is unconstitutional and what courts can (or ought) to declare as unconstitutional. Thayer also argues: “It was then all along true, and it was foreseen, that much which is harmful and unconstitutional may take effect without any capacity in the courts to prevent, since their whole power is a judicial one.” 30
Thayer believed in judicial enforceability of constitutional directives only in cases of manifest violations of such directives. In principle, under his view, constitutional directives are enforceable but they are enforceable only when the legislature committed a grave or a manifest violation of the directives. Violations that are not grave or manifest are unenforceable. Some contemporary constitutional theorists support this view on instrumental grounds. Adrian Vermeule for instance claims that courts are less likely to decide correctly on constitutional matters in cases that do not constitute manifest constitutional violations.
31
Hence, under his view, constitutional provisions are enforceable only when the institution that enforces them is more competent/more inclined to conform to the constitutional directives.
Larry Sager developed an alternative view that also regards the constitution as containing pockets of unenforceable provisions. Under his view, there are certain constitutional directives that are never enforceable (irrespective of how grave or manifest the violation is) as there are constitutional duties that cannot be effectively enforced by the courts.
32
More specifically, he argues that there is a systematic gap between the scope of constitutional directives and the scope of enforceable constitutional directives. Unenforceable constitutional directives are ones that are not fit for judicial determination. Sager also identified the spheres in which such unenforceable constitutional directives exist. In his view the American Constitution contains two prominent unenforceable rights: a right to minimum welfare and a duty to reform structurally entrenched social bias and redress historical injustice.
33
While these provisions are unenforceable, Sager also believes that they are binding
28 James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law 7
HLR 129, 144 (1893).
29 Id at 144.
30 Id at 137.
31 Adrian Vermeule, Law and the Limits of Reason 2-4 (2009). For a critique, see the symposium on Vermeule’s book in 2 Jerusalem Review of Legal Studies 5-47 (2010).
32 Larry Sager, Justice in Plainclothes: A Theory of American Constitutional Practice pp. 84-92
(2004)
33
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constitutionally precisely as any other part of the Constitution. In his view: “the unenforced margins of underenforced norms should have the full status of positive law which we generally accord to the norms of our Constitution, save only that the federal judiciary will not enforce these margins.” 34
Sager’s conjecture that there are unenforceable constitutional directives follows naturally from his conviction that the American Constitution ought to be equated with political justice.
35
Given that there are requirements of political justice that ought not to be enforced by the courts (as the courts are incapable of enforcing them efficaciously) there must be constitutional directives that are unenforceable. Sager believes therefore that there is a systematic under-enforcement of constitutional norms in the American Legal system and that one ought to distinguish sharply between the “Constitution proper” and the “adjudicated Constitution”, namely those parts of the constitution that are enforceable by courts.
36
Such a gap between the constitution and the enforceable constitution is not an indication of a deficiency in the scope of judicial enforcement. It is simply a byproduct of pragmatic limitations resulting from the institutional limitations of the courts. Thayer or Sager’s view is by no means accepted by all constitutional theorists.
37
Yet, even if one rejects this view there is another important aspect of
American constitutionalism that testifies to the conviction that binding constitutional directives may be desirable independently of the existence of an effective enforcement system.
Both the American and the Israeli legal systems currently have a system of judicial review designed to enforce (all or some) of the constitutional directives. Yet, at their inception, it was unclear (or at least controversial) whether courts would ever incur such powers.
38
Both systems were founded on an explicit acknowledgment of the limitations on the powers of the legislature. The supremacy clause Article VI clause 2 to the American Constitution declares solemnly that: “This Constitution, and the laws
34 Sager p. 88.
35 Sager 70-83.
36 Sager 86. In a recent paper it was also argued that some procedural requirements of the
American Constitution are also immune to judicial review. See Ittai Bar Siman-Tov, Legislative
Supremacy in the United States? Rethinking the “Enrolled Bill” Doctrine 97 Georgetown L.J. 323
(2009).
37 .
38 Both in the American as well as the Israeli system there are those who believe that the courts abused their power by taking upon themselves the power to invalidate statutes. For a brief discussion of the radical view in the US, see Edward S. Corwin, Marbury v. Madison and the
Doctrine of Judicial Review 12 Michigan L. Rev. 538 (1914). Most famously Richard Spaight – one of the framers argued that: “as [the judges] would have operated as an absolute negative on the proceedings of the legislature which no judiciary ought never to possess: and the state, instead of being governed by the representatives in general assembly would be subject to the will of three individuals.” Cited in Larry Kramer, p. 275 (Oxford University Press, 2004). For a recent discussion of the historical origins of judicial review in the US, see Saikrishna B. Prakash & John
C. Yoo, The Origins of Judicial Review 70 U. Chi.L.Rev. 87 (2003).
11

of the United States which shall be made in Pursuance thereof; and all treaties make, or which shall be made, under the Authority of the United States, shall be the supreme law of the land…” While there are disputes as to the interpretation of this provision, 39 many theorists believe that this provision is designed to entrench the supremacy of the
Constitution.
40 Under this view, even before the decision in Marbury v. Madison which established for the first time the powers of the American courts to invalidate statutes, Article VI identified the Constitution as containing duty-imposing constraints on the powers of the legislature. Yet, it was not clear at all that such duty-imposing constraints are enforceable. It was only the decision in Marbury v. Madison that entrenched the powers of the courts to invalidate statutes. As a matter of fact even today there are prominent theorists who believe that courts do not have as much powers as they purport to have in enforcing the constitutional directives.
41
Similarly in Israel even before the groundbreaking case in Bank Hamizrachi v. Migdal which established the powers of Israeli courts to invalidate legislation, section 8 of the
Israeli Basic Law: Human Dignity and Liberty imposed constitutional duties on the legislature. This section declares that: “There shall be no violation of rights under this
Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” The decision of the
Israeli Supreme Court to use Basic Law: Human Dignity and Liberty to strike down legislation was not inevitable as the opponents of the decision were quick to point out.
42
In both the American and in the Israeli system, there are currently institutional mechanisms for enforcement of constitutional limitations on the legislature. Yet, in both cases, the decision to endorse duty-imposing constitutional directives preceded the decision to entrench these directives by establishing institutional mechanisms for their enforcement. As a matter of fact, the latter decision (to design judicial mechanisms for enforcement) was not inevitable; both the Israeli and the US systems could have developed otherwise and the fierce debates concerning the powers of the courts provide support for this conjecture.
Pure binding declarative constitutionalism is therefore a more prevalent phenomenon than is often recognized by constitutional theorists. Some jurisdictions such as Ireland or India contain explicitly binding but unenforceable constitutional directives. Even constitutions that do not explicitly contain explicit unenforceable binding constitutional directives, e.g., the US Constitution, have been understood or interpreted as containing unenforceable constitutional norms. Last some constitutions
39 See the famous challenge of the traditional interpretation by Alexander Bickel, The Least
Dangerous Branch: The Supreme Court at the Bar of Politics 9 (2 nd ed. 1986).
40
41
Bradford R. Clarck, Unitary Judicial Review 72 Geo Wash. L. Rev. 319, 322 (2003),
See the discussion in The Origins of Judicial Review, supra note
42 The most influential critic of the Court’s decision to interpret the Basic Laws as granting it the power of judicial review was Ruth Gavison. See Ruth Gavison, Not A Reality But an Attempt at
Self Fulfilling Prophecy 28 Mishpatim 165-190 (2008).
12

could have developed to be ones that are unenforceable but, given the ambiguity of the language of the constitutions/basic laws, courts have eventually acquired the power to enforce the constitutional directives.
Despite the prevalence of non-enforceable binding constitutional directives the dominant theoretical controversy is the controversy over enforceability, in particular judicial enforceability. Proponents and opponents of judicial review fail to acknowledge the prevalence of non-binding constitutional directives and to ask how
(and whether) such binding directives can be rationalized. The next part fills this gap and defends the view such directives can be justified.
III CONSTITUTIOAL DIRECTIVES AS ENTRENCHING PRE-EXISTING
MORAL/POLITICAL LIMITATIONS a.
Introduction
What is the value of pure declarative constitutionalism? Why would unenforceable directives have any value whatsoever? What may prompt a framer of a constitution to entrench certain constitutional duties without, at the same time, guarantee that such duties be enforced by designing enforcement mechanisms?
To address this question I start with the banal observation that the absence of legally binding constitutional directives does not imply the absence of binding moral/political constraints on the legislature. In fact a presupposition that underlies my analysis is that there are moral/political restrictions on the powers of legislatures irrespective of whether these restrictions are constitutionally entrenched. Under “the limitations hypothesis:” “the democratic legislature is morally/politically constrained, namely there are normative limitations on its powers.” 43
Such limitations may be universal limitations applying to any legislature, e.g., in the case of basic universal human rights or they may originate from certain historical contingencies and apply only in a particular jurisdiction. Irrespective of whether they are universal or not, they bind the legislature (morally or politically) and their binding nature does not hinge on the question of whether they are constitutionally entrenched.
One type of binding constitutional directives are directives that entrench constitutionally pre-existing moral/political limitations. As mentioned in the introduction such an entrenchment is not a mere replication of the pre-existing moral/political norms. Constitutional entrenchment is typically accompanied by designing and developing a set of practices conventions and social rules that result in a concrete more precise and determinate norms and, most typically, less contested norms than the pre-existing moral/political norms. It is this transformation which is
43 Alon Harel, Rights-Based Judicial Review
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essential for making the case for the constitutional entrenchment of pre-existing moral/political norms.
I develop this argument in two steps. First I argue that that it is important not only that legislatures act in conformity with the moral/political limitations but also that they reason from these duties and ground their decisions in these duties. Conformity with the moral/political duty is insufficient; it is also necessary that legislatures act from the duty namely that the duty provides them a reason for action. Second I argue that conformity with legislature’s duties presupposes the existence of constitutional duties, as only constitutional duties are sufficiently determinate to provide a meaningful public recognition of the legislature’s duties. Consequently, what it means for a legislature to act from its duties is to reason from its constitutional duties. To put it differently, in the absence of constitutional duties the legislature ought to reason directly on the basis of the moral/political duties. The contestability and indeterminacy of the pre-existing moral/political norms erodes the sense of legislature’s duties and corrupts the integrity of the political discourse. To remedy these deficiencies one needs to develop less contestable and more determinate norms that bind the legislature, namely to entrench constitutional duties.
Legislatures have duties and, it is uncontroversial that they ought to conform to these duties. Yet there are reasons to believe that legislatures ought also to act from their duties. When a legislature merely conforms to its duties but fails to reason on the basis of these duties, the legislature fails to acknowledge its duties. Its conformity with the duty is perceived by it to be simply a matter of its own desires, inclinations or tastes. Its decision can be analogized to a decision of an individual to describe a payment of a debt as a present or the honoring of a promise as a charitable gesture. It seems at least initially that acting from duty is normatively required.
But what does it mean for an institution (such as the legislature) to reason from a duty? An individual who acts from a duty reasons on the basis of the duty; takes the duty as a reason for action. The decisions of such an individual do not reflect his desires or inclinations; as a matter of fact, they may conflict with his desires or inclinations. It is more difficult however to identify what it means for a collective institution to act from a duty, i.e., to take the duty as a reason for action. One natural proposal (which I reject below) is to attribute to the legislature the reasoning of individual legislators. As the reasoning of individual legislators is not publically verifiable, their reasoning cannot provide the basis for a judgment as to whether these duties have been honored or not.
For a legislature to act from a duty requires public recognition of such a duty, namely it requires that the duty be recognized publically as a duty binding the legislature.
Moral/political limitations are most typically too contestable to provide a solid foundation for a publically recognized duty. Constitutional entrenchment settles publically what the legislature’s duties are and, consequently, it facilitates not only
14

the conformity of the legislature with the moral/political duties binding it but also conformity that is grounded in the appropriate deliberation -- deliberation that takes the public duty (i.e., constitutionally-entrenched duty) to be the reason for conformity.
I start by establishing the limitations hypothesis and then turn to establish how constitutionally entrenching the pre-existing moral/political constraints can be rationalized in non-instrumental terms as facilitating a duty-based reasoning. b. The Limitations Hypothesis
To establish the entrenchment rationale for constitutional directives one ought first to establish the “limitations hypothesis,” namely the hypothesis that legislatures are morally/politically constrained and then to establish the distinctive contribution of constitutionally entrenching the pre-existing moral/political limitations.
The limitations hypothesis is perhaps the least controversial claim among political theorists. The belief that the sovereign is morally/politically constrained was already prevalent in medieval times. The divine right of kings did not presuppose that kings have no duties towards their subjects; only that the King is accountable to God alone and no human institution has any power to challenge its commands:
“The state of monarchy is the supremest thing upon earth…Kings are justly called Gods, for that they exercise a manner or resemblance of divine power upon earth. For if you will consider the attributes to God, you shall see how they agree in the person of a king. God has power to create, or destroy, make or unmake at his pleasure, to give life, or send death, to judge all, and be judged nor accountable to none: to raise low things, and to make high things low at his pleasure, and to God are both soul and body due. And the like power have Kings; they make and unmake their subjects: they have the power of raising, and casting down: of life, and of death: judges over all their subjects, and in all causes, and yet accountable to none but God only.”
44
And indeed all contemporary opponents of judicial review such as Jeremy Waldron concede that the legislature has duties that ought not to be violated. In fact Waldron’s lengthy discussion of “outcome-related reasons” presupposes that there are desirable outcomes concerning constitutional disputes.
45
As those disputes on outcomes concern individual rights, presumably the right outcomes are (at least sometimes) not merely discretionary; they are mandatory. The debate concerning judicial review and, in particular, the “epistemic institutionalism” characterizing this debate is founded on
44 See Extracts from speech to Parliament 21 of March 1609 by King James in http://www.historyguide.org/earlymod/james1609.html
45 See Jeremy Waldron, The Core of the Case Against Judicial Review 115 Yale L.J. 1376-1386
(2006).
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the premise that (i) there are rights and (ii) those rights impose duties on legislatures and, consequently, (iii) the relevant institutional question is who can better identify what these duties are or who is more likely to conform to these duties.
46
I shall develop therefore the case for the constitutional entrenchment of moral/political limitations on the basis of the assumption that legislatures are bound by moral/political obligations. b. The Case for Constitutional Entrenchment of Moral/Political Limitations
The limitations hypothesis in itself has no bearings on the desirability of entrenching constitutional directives. From the mere fact that the legislature is morally/politically constrained it does not follow that there are reasons to constitutionally entrench the pre-existing moral/political limitations.
Arguably, to the extent that there are reasons to constitutionally entrench moral/political limitations it is because such constitutional entrenchment improves the quality of the resulting legislative decisions as it increase the prospects that legislatures conform to their moral/political duties (at least to the extent that the constitutional duties entrench the pre-existing moral/political duties). Perhaps, for instance, constitutional directives are respected by citizens; respect which influences the legislators and prompts them to conform to them. The greater willingness of legislators to conform to constitutionally entrenched moral/political limitations is instrumentally desirable. As a matter of fact this was the underlying rationale for enacting the unenforceable constitutional directives in India. Among the primary justifications of enacting the directives was the belief that:
47
The question however whether entrenching moral/political duties is instrumentally conducive to conformity is an empirical question. An opponent of constitutional directives may raise objections to this conjecture and argue that legislatures that are constitutionally constrained are less rather than more likely to conform to the underlying moral/political limitations. Jeremy Waldron – the most vocal opponent of judicial review -- is quick to note that judicial review can be detrimental to the quality of legislatures’ decision-making. In his view: “the written formulations of a Bill of
Rights…tend to encourage certain rigid textual formalism.” 48
As constitutional directives use canonical linguistic forms, they may distract attention from the underlying moral values and focus too great attention on the specific language of the constitutional directives rather than the values underlying these directives.
49
46 For the notion of epistemic institutionalism, see my comment on Vermeule, supra note
47 see
48 Waldron at
; Jeremy Waldron, A Right-Based Critique of Constitutional Rights 13 Oxford Journal of Legal Studies 18, 26-27 (1993).
49 In Waldron’s words: “One lesson of American constitutional experience is that the words of each provision tend to take a life of their own, becoming the obsessive catchphrase for expressing everything one might say about the right in question.” Waldron at .
Waldron believes that the constitutional discourse in the US suffers from too great attention to the specific terms used in the
16

It is evident at this stage that I share skepticism as to the value of empirical conjectures of both proponents and opponents of binding constitutional directives.
Empirical conjectures of the type discussed here have three fatal weaknesses: 1) it is difficult and often impossible to establish their soundness. Given the ambiguity and disagreements concerning the content of the moral/political limitations, it is difficult to measure under what system legislatures are more likely to conform to these limitations. The historical record is a mixed one and cannot corroborate the instrumental benefits (or costs) resulting from the entrenchment of moral/political duties. 2) To the extent that such claims can be substantiated it is only in the context of narrow specific historical and institutional contexts. While the typical theories developed by constitutional theorists purport to apply universally the instrumental arguments raised by constitutional theorists are often contingent upon various specific institutional structures and therefore apply only in specific contexts.
50
The great ambition of constitutional theorists to develop a universal, timeless rationale for constitutional entrenchment are bound therefore to fail as long as these theorists use instrumental justifications based on empirical conjectures. 3) There seems to be a gap between the sentiments underlying the urge for constitutionalism (including pure declarative constitutionalism) and the instrumental arguments used to justify it. The instrumental arguments often seem like rationalizations of more foundational sentiments and, it is the justifiability of those sentiments that we wish to examine here. This means that even if the instrumental argument based on the quality of the legislature’s decision could be substantiated, the need for a different explanation – one that addresses the underlying concerns of proponents and opponents of entrenchment be identified.
51
Under an alternative justification, constitutional directives are valuable independently of whether they trigger better decisions (i.e., decisions that are more in conformity with the moral/political limitations) on the part of the legislature. This is in line with the Kantian approach to the problem of authority in general which: “does not depend on any claims about an authority’s ability to generate the correct result in every case, or even on the greater reliability of its chosen procedures, measured against some external criterion.” 52
Under the view proposed here, the justifiability of constitutional directives entrenching the pre-existing moral/political directives does not hinge (or, more accurately, does not hinge exclusively) on the expected conformity of the legislature to the moral/political duties. More specifically, the legislature ought not merely act in conformity with its moral/political duties but it ought also to reason
American Constitution: “equal protection”, “due process”, “cruel and unusual” while similar debates conducted in Britain or Australia for instance reveal greater sophistication as they benefit from the absence of canonical linguistic formulas which paralyze or distort the public discourse.
50 See, e.g., Rivka Weill, Can We Reason about Reason? On Adrian Vermeule Law and the Limits of
Reason 2 Jerusalem Review of Legal Studies 15, 23-26 (2010).
51 Harel & Kahana
52 Ripstein 197.
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from its duties and, such reasoning requires the legislature to act from a duty that is recognized publically as its duty. I start by analyzing what it means for a legislature to act from its duties. I later analyze why it is valuable that the legislature acts from its duties (rather than merely in conformity with them).
What is the difference between conforming to a duty and acting from the duty? For a person it is often considered particularly morally worthy to act from the duty rather than merely in conformity with it. Kant believed that only acting from duty has moral worth; the key to the good will is to act dutifully from an interest in the rightness of the action and not (merely) from self-interested reasons or from contingent inclinations, such as sympathy or antipathy. The key to the good will is to be found in an examination of the motive as good will requires the agent to a dutiful act for the sake of duty .
53
What it means to act from a duty is highly controversial in the philosophical literature.
Some believe that to act from duty entails that respect for the duty was present at the time of the act and would have sufficed by itself to produce the dutiful act.
54
This view was challenged and an alternative proposal under which to count as an act performed from duty it is required that the action be performed “because the agent finds it to be the right thing to do and take its rightness or requiredness as his reason for action.” 55
Yet these debates are less relevant for our purposes here as what characterizes the discussions concerning the moral worth of acting from duty is the fact that the agents involved in such actions are persons. Our concern is to explore what it means to act from duty in an institutional context, and, to establish that it is worthy that the legislature (rather than a person) acts from duty (and not merely in conformity with it). To do so we need to identify what it means for a legislature to act from duty and then to identify why it is particularly valuable that the legislature act from duty. But, as I borrow the concept of “acting from duty” from the context of agents who are persons to the institutional context, namely to legislatures, let me first examine closely the soundness of the analogy between legislatures and persons.
Arguably the analogy between the legislature and an individual weakens rather than strengthens the case for the moral worth of acting from duty. First even those who believe that acting from duty has moral worth typically do not believe that agents are bound to act from duty. Acting on the basis of the right reason (or, more specifically, from duty) is, most likely, morally worthy but not mandatory.
56
Further, a liberal regime never entrenches a (legal) duty to act from duty. It is indeed morally worthy on the part of an individual to act from duty (rather than merely conform to duty) but, as a legal matter, conformity is all what is required of him.
57
If these observations
53 See Herman at 3.
54 See
55 Herman 12.
56
57
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apply to legislatures one may infer that 1) the permissibility of legislatures’ decisions does not hinge on their motives and, in particular, the permissibility of their decisions does not hinge on their acting from duty. 2) there ought not to be legal duty on the part of legislatures to act from duty.
This objection is fallacious. The analogy between an individual and a legislature is misleading, as the primary concerns underlying the above observations are inapplicable in the case of the legislature. Presumably acting from duty is often cumbersome for the individual. Requiring it constitutes great interference in one’s liberties.
58 This also explains the reluctance to impose legal obligations to act from duty. Such concerns do not apply to the legislature and, hence, arguably, it is not implausible to require legislatures to act from duty and to entrench such a duty in legislation.
A more powerful challenge is one that does not rest on the analogy between individuals and institutions but challenges this analogy, and, in particular, maintains that while it is morally worthy on the part of individuals to act from duty, it is not morally worthy on the part of institutions to act from duty. We attribute moral worth to an act done by a person from duty; we may praise such an act and the person performing it, as such a person may have to overcome her self-interest or inclinations.
But why should we care about the motives of institutions or attribute moral worth to the motives of such institutions. Institutions after all do not have mental states and the intrinsic worth of the good will of individuals – worth, articulated by Kant (not generally known for his poetic talents) as “a jewel…that shine by itself, as something that has its full worth in itself” does not naturally extend to the will of institutions.
59
Addressing this objection is the main challenge of the rest of this chapter. To justify this requirement we ought to rely not on the intrinsic worth of mental states of the legislature but on the impact that acting from duty may have on the quality of political discourse and on the significance of the difference between having a right and having a privilege.
To appreciate why acting from duty on the part of the legislature is desirable, it is necessary to explain what it means for a legislature to act from duty. As the philosophical literature discussions of the distinction between “acting from duty” and
“acting in accordance with duty” is concerned with agents who are persons, extending this discussion to institutions requires elaboration.
60
The elaboration proposed below bears some resemblance to the case of a person acting from duty but it does not simply replicate the meanings attributed to the term “to act from duty” when applied to persons; it takes seriously the fact that the relevant agent is an institution – the legislature -- rather than a person.
58
59 In a different context such an argument was raised by David Encoh. Enoch defended the view that the doctrine of double effect applies to individuals but not institutions
60
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There is one aspect that characterizes the distinction between acting from duty and acting in accordance with duty (as traditionally understood) that is preserved in the transition from a person to the legislature. A legislature that acts in conformity with its duty without acting from duty acts on the basis of its inclinations. Its conformity with the duty is contingent; it hinges on its preferences or inclinations or, at best, on its perceptions as to what the public good requires. Acting from the duty (as opposed to merely conforming to the duty) means that the legislature embraces its duties and act in accordance with them even when such conformity conflicts with its inclinations. Yet interpreting what it means for a legislature to act in such a way cannot rest on the mental state of the legislature (as it has no mental states). It must rest instead on the publically accepted understanding of its acts.
One natural attempt to extend the concept of “acting from duty” to the institutional context is to maintain that what it means for an institution to act from duty is that the individual members of the legislature act from duty. Thus when individual legislators reason from their duties, the institution of the legislature as such is said to act from duty. Naturally such an interpretation, if accepted, raises a lot of additional questions such as what percentage of the individual legislators ought to act from duty; what the value of the motives of the individual legislators is etc.
I think however these questions can be avoided as this simplistic extension of the concept of “acting from duty” from persons to institutions such as the legislature is flawed. To the extent that it is worthy that legislatures act from duty (rather than merely in accordance with duty), the question of whether they did or did not act from duty ought to be public knowledge as it ought to be judged by citizens and provide the basis for evaluating the performance of the legislature. In other words, the question of whether the legislature acted or did not act from duty ought to be a question that can in principle be observable by citizens. Since the mental states of individual legislators is not public, it follows that the judgment whether the legislature acted from duty or not cannot be a matter of the individual acts of the individual legislators comprising the legislature. The reasoning of individual legislators and, in particular, the question of whether they acted from duty or not cannot serve as a criterion to determine whether the institution as a whole acted from duty.
Instead I wish to suggest an alternative explanation: to act from duty for a legislature is nothing but to act in conformity with a constitutional duty . The constitutional entrenchment of moral/political limitations is therefore necessary for legislatures to act from duty. In addition what is needed to attribute to the legislature an act from duty is merely that it conforms to the constitutional duties. It follows that in the absence of such a (constitutional) duty, legislatures cannot act from duty. At most they can act in conformity with their moral/political limitations.
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To understand this proposal and also to appreciate why it is worthy that legislatures act from duty (when acting from duty is understood in this way), it is essential to understand what the fundamental difference between a moral/political duty and a constitutional duty is. In defining a constitutional duty, I do not mean to resolve general questions concerning what a constitution is; my characterization is useful only for the purposes of this chapter, namely for justifying the constitutional entrenchment of pre-existing moral/political norms.
To be a constitutional norm binding the legislature, a norm must be a norm that is perceived by legislators and lawyers (and perhaps other relevant communities) to be binding. This applies to all constitutional norms binding the legislature independently of whether these norms entrench pre-existing moral/political duties or not. The constitutional entrenchment of pre-existing moral/political duties has an additional feature which is crucial for my purposes. Such an entrenchment transforms these duties into more determinate duties, as constitutional entrenchment (as I use the term here) presupposes greater specificity and determinacy and, most importantly, less contestability than those characterizing the pre-existing moral/political norms. To be a constitutionally entrenched norm the norm cannot simply dictate: “the legislature ought to honor its pre-existing moral/political duties” or “promote justice.” The constitutional norms ought to be more specific and determinate than the pre-existing moral/political duties. This typically also means that constitutional norms are rooted in conventions, practices and precedents that makes the identification and specification of these duties easier and less contestable than the identification of the pre-existing moral/political duties. To interpret the norm one typically resorts to the way the norm was interpreted in the past, the conventional acceptable linguistic articulations of the norm etc. One implication of this observation (which I am not going to pursue here) is institutional. The fact that the entrenchment of constitutional norms is rooted in such conventions practices and precedents often provides a justification for professional bodies such as courts and lawyers to have a privileged role in identifying the constitutional duties as such an identification requires knowledge of the practices and conventions – knowledge that often requires professional training.
There are therefore two aspects here to the constitutional entrenchment: substantive and procedural and the relations between the two ought to be clarified. The substantive aspect requires that the entrenchment is not a mere institutional replication of the pre-existing moral/political norms. The entrenched constitutional norms are buttressed by practices and conventions that make them less contestable and, more easily, publically verifiable. Often, although not always, this process is a accompanied by designing formal or informal procedures designed to resolve constitutional disputes, such as granting power to an authoritative institution, e.g., a court to interpret this norm.
61
At times the mere authoritativeness of an institution assigned
61 Alexander, On Living Trees 230.
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the authority to interpret the norm is sufficient to turn a norm into a constitutional norm even when the norm is a highly abstract and contestable norm. Yet in what follows I focus attention on the substantive aspect of the constitutional norms, namely on the transformation of pre-existing moral/political norms into more determinate constitutional norms. The entrenched norms become constitutional by virtue of the greater specification and determinacy of such norms resulting from the fact that the content of such norms is partly determined by a thick set of conventions, precedents and practices.
Before I explore why such an entrenchment is so valuable, I wish to address one possible concern. As constitutional entrenchment of norms (as explicated here) does not replicate the pre-existing moral/political norm in what respects should it be labeled entrenchment of pre-existing norms? After all the constitutional norm differs from the pre-existing moral/political norm as it is more specific and determinate and, further, its meaning is partly rooted in existing conventions and practices some of which are irrelevant from a purely moral/political perspective.
To address this concern it suffices to mention that while the constitutionally entrenched norm differs from the pre-existing moral/political norm, it could be described as reflecting a choice among different permissible pre-existing moral/political duties. Thus by constitutionally entrenching the moral/political norms one selects among different possible concrete norms (each of which would be a permissible rendition of the pre-existing moral/political duties) one possible morally/politically permissible formulation.
Equating constitutional entrenchment of pre-existing moral/political norms with the process of making these norms more concrete and more dependent upon conventions, precedents and practices suggests also that the boundaries between moral/political norms and constitutional norms are not always sharp and precise. The specificity of a norm is a matter of degree and the more specific and determinate the norm is the more constitutional it is. To illustrate think of the following example: a community in which there is a shared conviction that legislatures ought to conform to the requirements of justice. Such a conviction is not a constitutional norm despite the broad acceptance of this principle. Unless the term justice is given a more concrete meaning, such a norm would be (merely) a moral/political norm and not a constitutional norm. To become a constitutional norm it ought to be given a specific/determinate meaning. A norm requiring the legislature to protect speech could also be not sufficiently determinate unless the term speech and the boundaries of its protection be specified. To become a constitutional norm, under this description, the interpretation of the norm must rely at least partly on conventional understandings of what speech is or is not, what forms of speech are protected etc.
But why is determination and specification so crucial for the legislature to be capable of acting from duty rather than merely in conformity with duty and why is acting from
22

duty, namely acting in conformity with an entrenched constitutional duty so valuable and morally worthy?
As I equated entrenched constitutional duties with determinacy and specificity and lesser contestability, it is not surprising that the value attributed to constitutional entrenchment hinges on these factors. The most significant aspect of constitutional entrenchment is that the process of constitutional entrenchment facilitates a publically acceptable identification of the duties of the legislature. In the absence of constitutional entrenchment the pre-existing moral/political duties cannot serve as meaningful guidance to the legislature as the content of such duties is too contestable.
As a matter of fact the contestability of the pre-existing moral and political duties is both detrimental to public deliberation and also may undermine the differentiation between protecting rights and granting privileges. Constitutional norms is a means to remedy this defect.
Assume that prior to entrenchment a legislature conformed to its pre-existing moral/political duties. Its conformity could be based on its inclination and, as the content of the duties is contestable, its decision can be plausibly interpreted as grounded in its inclinations. Even if the legislature solemnly declares its beliefs that it is bound by duty to legislate in certain ways, its judgment/declaration could be challenged by future legislatures or by the citizens. As a matter of fact those who contest the existence of the relevant moral/political duty would insist that the decision is merely based on an inclination, as, in their view, there is no pre-existing moral/political duty to conform to. Legislative decisions can therefore plausibly be interpreted as resulting from unfettered discretionary prerogatives of the legislature; not as resulting from a principled commitment it has as a legislature to conform to its duties.
The contestability of the pre-existing moral/political duties has two undesirable implications. First the very notion of legislative duties and their role in public deliberation is eroded. If no specific act of the legislature can be non-controversially attributed to its duties, the sense of legislative duty and its significance is eroded.
Citizens can continue to use the language of moral/political duties binding the legislature but each and every decision is potentially attributable to the legislature’s inclinations and not to its duty. Further the fact that each and every decision can be attributed to the legislature’s inclinations and tastes is problematic in another important respect, which regrettably is rarely acknowledged by constitutional theorists, namely it erodes the significance of the difference between duty-based rights and discretionary privileges.
Think of the significance of free speech in a liberal society and imagine the difference between being granted a privilege to speak and having right to free speech. The first implies that the legislature can act otherwise, i.e., that the liberty to speak hinges on the good will of the legislature, its inclination or, perhaps, the judgment that free
23

speech is likely to promote prosperity and well-being. The privilege is granted as a discretionary gesture on the part of the legislature. In contrast the second implies that the legislature has no choice over the matter; it is not a gesture on its part; it does not depend on its inclinations or tastes or even judgments concerning the public good.
I believe that one of the great appeals of entrenching constitutional provisions is the fact that they institutionalize the difference between rights and privileges. Further, judicial review of legislation (which will be the subject of the next chapter) also serves to entrench the difference between duty-based legislative acts and acts motivated by inclinations. It is sometimes particularly valuable to be granted protection by courts (on constitutional grounds) and not by legislatures because the former decisions are publically understood to be rights-based while the latter may at times be ambivalent; they could be grounded in rights but also could be the result of inclinations. In being granted a remedy by a court a person’s right is being protected.
In contrast being protected by the legislature is often an ambivalent indication that does not settle the question of whether the protection is rights-based or, instead, based on the legislature’s inclinations. But, even in the absence of judicial review, entrenching constitutional duties serves to differentiate between decisions grounded in duties and those based on inclinations.
Why is such a differentiation so important? To clarify its importance one ought to point out that the goods provided by rights and privileges are different. In the case of protecting a right, it is not merely the object of the right, e.g., speech that is protected.
In addition, it also constitutes a statement as to the reasons for the protection and (as chapter II clarified) such reasons matter. Protecting speech as a right may imply protecting speech for the sake of enhancing autonomy and, such an autonomy-based protection differs from merely granting a privilege to speak (for the sake of promoting welfare or any other reason). The former (as I argued in chapter II) shapes our very understanding of autonomy and the forms it can be exercised. The latter has no such ramifications. The difference is therefore not in the expected conformity of the legislature to the relevant norms or the relative security and stability of rights. It is in the nature of the goods that are protected. Although in both cases described above, it is speech that is protected, it is protected for different reasons and its protection has different ramifications.
Constitutional directives constitute a publically salient embracement of the preexisting moral/political duties on the part of the legislature and, as such, the legislature that conforms to these duties can also be said to act from duty. Acting from duty is not therefore the byproduct of an official solemn declaration on the part of the legislatures or any other overt behavior on their part; instead such a public recognition is an inevitable byproduct of their conformity to constitutional duties.
Could not we imagine a society in which there is a public recognition of the moral/political limitations without it being constitutionally entrenched? To see why
24

not simply recall that under my view, constitutional directives binding the legislature are nothing but public understandings and expectations concerning the legislature’s duties and in particular public agreement concerning the content of these duties. As is well established constitutional directives need not be written or enforceable. They are conventional norms whose existence hinges on the shared understandings and expectations. The required determinacy and specificity of such norms is under this view an inevitable byproduct of constitutional entrenchment.
IV SUMMARY
This chapter defends binding declarative constitutionalism. It starts with the observation that legislatures fact different types of decisions: some are grounded in pre-existing moral/political duties and others are based on inclinations. This chapter defended the view that it is not sufficient that legislatures conform to their duties; they also ought to act from duty. What it means, however, for a legislature to act from duty differs from what it means for a person to act from duty. For a person to act from duty is a matter of her mental state. For a legislature to act from duty the legislature ought to conform to an entrenched constitutional duty. Such a norm is more specific and less indeterminate than the pre-existing moral/political norm. Its meaning is typically determined partly by conventions and practices. Its content is less contestable and, consequently, legislative decisions may be more easily attributed to the constitutional duty than to a pre-existing moral/political duty. In the absence of a constitutional duty, legislative decisions could always be attributable to the legislature’s inclinations rather than to its duties.
There are two primary reasons why legislatures ought to act from duty rather than merely in conformity with duty. First, to act from a duty contributes to the political discourse as duties have a greater salience in the public discourse; they can meaningfully bind the legislature, provide a basis for an effective criticism and play a significant role on public life. Second, there is a fundamental difference between protecting a right and being granted a privilege to the goods that the right is designed to protect. It is a different to have a right to free speech and to be granted a privilege to speak, as the former is also a statement concerning the reasons underlying the right.
Binding declarative constitutionalism is valuable as an institutional means providing the possibility for legislatures to protect rights rather than to merely grant the goods that the rights are designed to protect.
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