The Bill of Rights

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 226-263

Chapter 2

The Bill of Rights

Every West Indian Independence Constitution contains a Bill of

Rights; which is one of the deeply entrenched provisions of the

Constitution. The nature of the rights enshrined in a Bill of

Rights certainly warrants this. As Mr. Justice Robert Jackson of

the US Supreme Court has observed:

The very purpose of a Bill of Rights [is] to withdraw certain

subjects from the vicissitudes of political controversy, to

place them beyond the reach of majorities and officials and

to establish them as legal principles to be applied by the

courts. One’s right to life, liberty, and property, to free

speech, a free press, freedom of worship and assembly, and

other fundamental rights may not be submitted to a vote:

they depend on the outcome of no elections.1

The philosopher John Rawls has echoed this sentiment when he

observed that fundamental rights are a matter of constitutional

essentials that are fixed in constitution making beyond tampering

by ordinary legislation.2The question, then, is one of the nature

and provenance of the rights contained in a Bill of Rights that

would distinguish them from ordinary legal or political rights

which are created by a legislative body and conferred upon the cit-

izens of a society. In other words, the very notion of fundamental-

ity rests on a supposition of rights that are ‘natural’, in the sense

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that they are not the product of deliberate legislative acts or

explicit social custom or convention, but are rather independent

grounds or regulative standards for judging legislation and

custom.3

It is now commonly understood that constitutional democ-

racy’s claim to moral distinction as a form of political rule rests

largely on its recognition and enforcement of certain fundamen-

tal rights and values which express the idea of the individual as

the moral center of society. Put differently, the fundamental

rights and freedoms, listed in the Bill of Rights of virtually every

written Western constitution, are understood to constitute the

moral core of the constitution; their pivotal importance to the

ultimate political question of right governance can therefore

never be overstated. For, in the final analysis, the rational reason

for subsequent generations respecting the terms of the constitu-

tional settlement, made by the founding generation, has less to

do with the source than with the content of the constitution.4In

other words, the very probability of a people venerating their con-

stitution may depend largely on what the constitution contains,

and, equally important, on how it is written. This simple, but

very important point seems largely to have been missed by the so-

called Westminster tradition of constitution writing, out of which

West Indian Independence Constitutions have come. The ques-

tion of the style of constitution writing must therefore be

addressed. However, the question of the nature of our funda-

mental rights and of those which are appropriately constitution-

alized in the constitution’s text must first be explored.

Fundamental Rights and Freedoms

The fundamental rights and freedoms listed in our constitutions

are in fact versions or a species of some of the basic human rights

declared in the famous Universal Declarations, such as the

Universal Declaration of Human Rights promulgated by the

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The Bill of Rights

United Nations in 1948. These basic human rights are often

philosophically justified by appeal to some version of natural law

theory, such, for example, as the theory articulated by the natural

law theorist, John Finnis, in Natural Law and Natural Rights.5On

Finnis’ view, our most basic human rights, such as the right not

to be murdered, assaulted, tortured, enslaved; the right of

freedom of conscience, thought and expression, and to worship,

are in fact the elucidation of certain forms of human good that

are constitutive of human well-being; our normative conclusions

based on a reflective grasp of what is self evidently good for

human beings. In contrast, the philosopher John Rawls would

base his justification of our fundamental rights and freedoms on

some hypothetical construct of an original contract6– a morally

credentialed perspective from which we would claim certain fun-

damental rights and freedoms that are absolutely necessary for

the exercise of our basic human capacities to rationally pursue

our individual life plans and conceptions of the good.7What is

evident from these two philosophical approaches is that our jus-

tification of basic human rights rests on, or is tied to, some ideal

conception of the human person as a reflective, self-determining

rational agent; a being capable of moral judgments and of making

critical choices about his or her own life, and of undertaking

practical deliberations about those ends worth pursuing and that

would be defining of his or her identity.

One of the more articulate voices on this question of the nature

of human rights is that of the distinguished University of Chicago

philosopher, Alan Gewirth. According to Gewirth, human rights

are rights which all persons have equally, solely by virtue of the

ontological fact that they are human rather than belonging to

some other kind, and therefore deserve to be treated in certain

ways or, more usually, not to be treated in certain ways.8He goes

on to state that the objects of the human rights, what they are

rights to, are certain especially important kinds of goods.9

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