I’m slow in posting this video of Elise Parham presenting her monograph Behind the Moral Curtain: The Politics of a Charter of Rights. The paper and video are both well worth checking out. Astute viewers may even be able to spot the back of my head in the video.
Elise’s argument is that bills of rights are fundamentally political, rather than legal, documents. This is true in the sense that rights will be interpreted and enforced based on political expediency and prevailing ideologies, as Robert Higgs and others have argued. Elise’s argument is that the writing of a bill of rights is also political. Once a government decides to draft a charter, many competing interests will compete to have their preferences reflected and the end result is unlikely to be a liberal document. Rather, we’ll end up with a whole lot of illiberal, and constitutionally protected, positive rights.