This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

Young people are increasingly impacted by the effects of the climate crisis, which are causing significant mental health harms. They are aware that government policies and decision-making have furthered reliance on fossil fuels, even in the face of the known dangers of climate change. To protect their human rights and future well-being, young people are turning to courts to hold their governments accountable for protecting their rights to a life-sustaining climate. Some courts around the world are granting young people access to seek remedies, while in other places, including the United States, such access is still denied. While access to justice is vital, young people have yet to see courts use the best available climate science as the basis for defining and protecting their rights. This article explores the obstacles young people face today in seeking and obtaining legal remedies, identifies human rights that are implicated by the climate crisis, and discusses why access to courts is a crucial aspect of the quest for a legally binding, science-based legal remedy for climate change that protects the rights of young people.

This chapter explores the question of what it means for a lawmaking institution to speak and act in our name. We maintain that different institutions can do so in different ways; even identical laws may have different meanings and significance depending on their institutional source.

We challenge the commonly held assumption that the institutional source of a legal norm – be it the constitution, legislation, and so on – does not affect its nature. We argue that institutions are not merely vessels through which norms get public recognition. When different institutions use identically worded norms, say, “everyone is equally entitled to X,” they may nevertheless produce different norms and provide different goods. For instance, a constitutional protection of a basic right differs from a statutory right to the same right, not because the former is less likely to be changed but because a constitutional decision marks the right in question as one that makes no essential reference to the actual choice of the majority of the political community. We extend this argument to other institutional settings, especially the common law tradition of judge-made law. We further discuss the doctrinal implications of the argument, defending a new kind of remedy: institutional remedies.

The right to petition was the ‘cornerstone’ of all other liberties, petitioners frequently argued. In the UK the right to petition was based on precedent, conventions and popular constitutionalism and was not, as in polities established in revolutionary contexts, a codified constitutional right derived from the idea of popular sovereignty. The right to petition was a contested right formed through a continuous, dynamic struggle between petitioners and Parliament. The right to petition was open to all subjects, and not limited by class, gender, race, literary, property or the franchise. There was little restriction of the content, as opposed to the form, of petitions to Parliament, and the decreasing limitations on petitioning in relation to association and assembly, ensured it became the key mode in connecting, legitimating and underpinning other political activities. Finally, petitioners successfully pressed for a popular, open right to petition, but politicians were able to resist attempts to expand the right of petition into a right of presence or audience. The contest over the right to petition was one of the ways in which politicians sought to retain their discretion and uphold parliamentary sovereignty while acknowledging popular rights.

This chapter explores how proportionality analysis has been incorporated into the case law of the Chilean Constitutional Court and what role it has played in the review of bills that sought the introduction of transformative policies in the country. The analysis contrasts judicial reasoning in cases that are part of ordinary practice and in landmark rulings where important projects of the progressive agenda were at stake. We suggest that, while proportionality has been applied inconsistently in both ordinary and high-profile cases, in the latter, it becomes part of the different strategies that the Court uses to mediate political conflicts. Proportionality works here more as a rhetorical tool than as a method of judicial reasoning, and the outcomes of the cases seem to depend more on the political composition of the Court at the time of the decision, the strength of citizen demand for changes and the influence that interest groups exert on the Court.

The literature on America’s unwritten constitution is rigorous and compelling, but it tends to focus almost entirely on how the federal Constitution has evolved through informal processes. In this chapter, I argue that our understanding of America’s unwritten constitution would be improved if we broadened the inquiry to include state constitutions. Unlike the federal Constitution, where Article V’s near-impossible amendment rules force essentially all reforms into informal pathways, the states have designed amendment rules and facilitated political cultures that encourage frequent formal amendment of constitutional text. Consequently, to the extent that unwritten constitutional commitments exist in the states, they are not the product of necessity, and they may shed new light on how constitutional rules evolve. In this chapter, I show that in various significant areas, states have indeed fostered robust unwritten constitutions and that state constitutionalism is characterized by a complex, competitive, and highly contextual interaction between codified and unwritten constitutional commitments.

This chapter discusses legal-ethical challenges posed by the emergence of emotional artificial intelligence (AI) and its manipulative capabilities. The focus lies on the European legal framework and on the use of emotional AI for commercial business-to-consumer purposes, although some observations are also valid for the public sector, or in the context of political micro-targeting or fake news. On the basis of a literature review, the chapter addresses privacy and data protection concerns, challenges to individual autonomy and human dignity as overarching values. It also presents a number of responses, specifically those suggesting the introduction of new (constitutional) rights to mitigate the potential negative effects of such developments and it provides the foundation for a future research agenda in that direction.

In this chapter I explore how Irish unification may affect the attitude of the Irish courts towards minority rights adjudication. First I examine minority rights protection under the current Constitution of Ireland. I show that the Irish judiciary have not developed an understanding that their constitutional function includes a particular role in ensuring the rights of minorities specifically are protected against attack. I then consider how unification, and the incorporation into the Irish constitutional order of a large and politically significant minority - the Ulster Scots/Ulster British population of Northern Ireland – could affect judicial attitudes towards minority rights. I ground this analysis on comparative constitutional research, particularly of American and Canadian jurisprudence. In this, building on the contribution of Doyle, Kenny, and McCrudden in this volume, I also consider how maintaining consociationalism for what is presently Northern Ireland upon unification may also inform the judiciary’s understanding of their role in adjudicating upon minority rights claims.

French law counters the idea that positive dimensions of free speech are not part of the freedom, or that media pluralism is distinct from free communication. Instead, protecting pluralism is central to French constitutional law. The approach echoes ideas of sustained plural public speech raised in earlier chapters. French law aims for an effective freedom for recipients. For people to express opinions that have political effect, as is said to occur in a democracy, people must be able to form opinions first. Democracy depends on plural public speech, involving multiple diverse outlets and transparency over information sources and financing. The French example is interesting for what it says about free speech and democracy, but what the requirements actually amount to is less than expected. A great deal of detail is left to actors beyond courts. In part, this reflects French traditions of protecting rights, although they are changing. Overall, strong statements about pluralism do not translate into as precise or demanding constitutional requirements as they might, but trends to date suggest more could eventuate.

This chapter outlines the structural diversity of public speech that democratic government requires, and the claim that democracy entails positive freedom of communication, not only a negative freedom or liberty. The state has obligations to support communicative freedom; both positive and negative dimensions of free speech need protection for democracy to have substantial communicative legitimacy. This book, often using historical comparative material, examines speech and varied forms of democracy; what it would mean for society to have a voice, formulate judgments and make claims of government that are heard; and free speech law’s role in the voice, judgments and claims. The chapter explains terminology, challenges in the approach and sources used: media studies, human rights, political theory and legal writing and case law. Further possible sources are considered, including analyses based on communication rights and republican freedom. The book is not an exegesis of any one legal system but explores ideas and techniques relevant to positive dimensions of free speech. The aim is show how law should treat positive free speech and raise questions for democratic systems.

Waluchow considers inclusive and exclusive legal positivism, first explaining that the idea behind the separation thesis is that there is nothing in the bare notion of law that guarantees that law has any degree of moral merit. He presents Ronald Dworkin’s challenge to the separation thesis, i.e., that since law necessarily consists not only of the so-called settled law (statutes, precedents, etc.) but also of the principles of political morality that are part of the best constructive interpretation of the settled law, the connection between what the law is and what the law ought to be is much stronger than the separation thesis allows for. He considers responses to Dworkin’s challenge: exclusive positivists insist that the separation thesis, properly understood, has it that, as a conceptual matter, legal validity cannot depend on morality, while inclusive positivists maintain that the thesis has it that legal validity can, but need not, depend on morality. Finally, Waluchow rejects Joseph Raz’s argument from authority, which supports the exclusivist interpretation, while accepting Jules Coleman’s argument from convention, which supports the inclusivist interpretation.