The Development of Constitutional Precedence and the Constitutionalization of Individual Rights

In Ulrike Müßig (ed.), Reconsidering Constitutional Formation Ii Decisive Constitutional Normativity: From Old Liberties to New Precedence. Cham: Springer Verlag. pp. 99-112 (2018)
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Abstract

The first part concentrates on the emergence in England of “fundamental laws” in the sense of individual rights, the “liberties and properties” of Englishmen. I also show how notably in the case of the notorious “Septennial Act” of 1716, criticism that Parliament violated the “constitution” was expressed, and how about three decades later in the writings of Bolingbroke the word “unconstitutional” was born, gaining wide currency in the North American polemics against the British Parliament prior to independence. In the second part I concentrate on one of the most important aspects of early modern western constitutional history, the dissociation—in North America—of the “higher” positive law of constitutions as opposed to the inferior “normal” law of legislatures, at the same time also relativising the supreme character of “law” in the writings of Hobbes and Rousseau, and closely connected to this development, the upgrading of many individual rights to “constitutional rights”, in other words, their constitutionalisation. In the third part I concentrate on two judgments of the U.S. Supreme Court throwing into particularly sharp relief the superiority of constitutional law vis-à-vis ordinarily legislature-made law: the first, long famous, is Marbury v. Madison of 1803, and the second one, Obergefell v. Hodges of 2015, is fast becoming one of the landmark cases of human rights protection, with the Court stating: “An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” In the fourth part I concentrate on the development, in Europe, of the only direct connections between individual persons and human rights enshrined in the highest law of the land or even beyond: first, the “Verfassungsbeschwerde” first developed in Austria, particularly successful in Germany ; and second, the “Individualbeschwerde” before the European Court of Human Rights, enabling the individual to appeal even against his or her own state for the protection of rights guaranteed by the European Convention of Human Rights.

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