What Is a Bill of Rights? Protections a Government Cannot Simply Remove
By the BrainSnail editorial team. How these articles are written and checked, and how to tell us when one is wrong.
A bill of rights lists protections that ordinary law cannot override, which is an attempt to place certain things beyond the reach of a majority. Whether that works depends entirely on enforcement, and the arguments against having one are stronger than they sound.
What the device is for
The purpose is to remove certain matters from ordinary political decision, so that a temporary majority cannot abolish protections that the arrangement depends on. That requires entrenchment, meaning the protections are harder to change than ordinary law, usually through a special procedure for amendment. It requires enforcement, meaning a body empowered to strike down or disapply legislation that conflicts, which in most systems is a court. And it requires the rights to be stated with enough generality to cover unforeseen situations and enough specificity to be applied, which is a drafting problem with no clean solution. The device answers a real difficulty, since a purely majoritarian system offers no protection to anyone the majority wishes to disadvantage, and it creates a different difficulty about who decides what the general words mean.
The recurring contents
Instruments across jurisdictions cover a consistent set of protections:
- •Freedom of expression, of assembly, of association and of religion
- •Protection from arbitrary detention, with a requirement that detention be authorised and reviewable
- •Fair trial guarantees, including notice of charges, representation and an independent tribunal
- •Protection from torture and from cruel punishment, which several instruments treat as admitting no exception
- •Equality before the law and protection from discrimination on listed grounds
- •Property protections, which vary enormously between instruments and are the most contested inclusion
The arguments against
Opposition to entrenched rights instruments is principled rather than merely obstructive and deserves stating fairly. The democratic objection holds that transferring decisions about contested moral questions from elected legislatures to appointed judges is a transfer of power rather than a protection of rights, since reasonable people disagree about what the rights require and someone must decide. The rigidity objection holds that entrenching a formulation freezes the understanding of a particular generation and makes correction difficult. The illusion objection holds that a written guarantee protects nothing where institutions are weak, and the historical record includes constitutions with impeccable rights provisions in states that ignored them entirely. The counter-argument is that legislatures have poor records protecting unpopular minorities and that some protection with an imperfect enforcer beats none, which is an empirical claim about which the evidence is genuinely mixed.
The first ones
Several documents are described as early bills of rights and their differences are instructive. The English instrument of 1689 was a settlement between Parliament and a new monarch, listing what the Crown could not do, which makes it a restraint on one institution by another rather than a general statement of individual entitlements. The French declaration of 1789 stated rights as belonging to people by nature rather than as grants, which is a different theoretical basis with different implications. The American amendments of 1791 were added after ratification specifically because several states would not accept the constitution without them, and their original application was against the federal government alone, with extension to the states happening gradually over the following century and a half through interpretation. Each emerged from a specific political conflict, and reading any of them as an abstract philosophical statement misses what it was doing.
Doing it without one
Several stable democracies have no single entrenched instrument and protect rights by other means, which is a useful comparison. The United Kingdom relies on ordinary statutes, on common law principles developed by courts, and on an act requiring legislation to be read compatibly with a set of rights where possible and permitting a court to declare an incompatibility without striking the law down, which preserves parliamentary supremacy while creating political pressure to amend. New Zealand uses a comparable model. The argument for this arrangement is that it keeps the final decision with the elected body while ensuring rights are considered, and the argument against is that a declaration a government can ignore is not a protection. Whether such systems perform better or worse is argued from cases rather than settled, and the comparison is complicated by everything else that differs between the countries involved.
The takeaway
Removing matters from ordinary political decision requires entrenchment, an enforcing body and wording general enough to cover the unforeseen. Expression, detention, fair trial, freedom from torture and equality recur across instruments. The democratic objection is that this transfers contested moral decisions to judges, and several stable democracies protect rights without an entrenched instrument at all.