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Nowhere are the difficulties of protecting both the right to enjoy one’s culture and the right to sexual equality protections better illuminated than in the case of post-Apartheid South Africa. This chapter discusses efforts to reconcile constitutional recognition of African customary law (and to a lesser extent Muslim personal law) with formal protections for women’s sexual equality. It also presents the debate and consultations over the reform of African customary marriage (in the late 1990s in South Africa) as a good example of open-ended democratic deliberation grounded in principles of democratic legitimacy and political inclusion. It is this kind of model of deliberation that offers up the best solution to conflicts of culture, including those over gender roles, in socially plural, liberal constitutional democracies.

This chapter is concerned with the individual not as an actor in the United States' foreign relations, or even as a member of the chorus, but as a source of constitutional limitation on foreign policy and process. Nothing in the constitution suggests that the rights of individuals in respect of foreign affairs are different from what they are in relation to other exercises of governmental power. However, special constitutional theories, and peculiarities of constitutional language, about foreign relations, their high place in national policy and interest, the asserted needs for extraordinary freedom of action for those who conduct them, the different constitutional issues they raise and the different contexts in which these arise, have engendered views that individual rights are fewer and narrower than elsewhere. These views have not prevailed in principle, but constitutional protections for individuals sometimes do have a different look.

This chapter discusses the protection of constitutional rights in Mexico, focusing on a peculiar name for the rights of individuals which emerged during the historical development of the Mexican Constitution: garantías individuales. The term garantías individuales or ‘individual guarantees’ reflects the effort to consider work, health, housing, and land as rights guaranteed to the individual by the Mexican Constitution in order for society to achieve a fairer distribution of wealth. In this chapter, garantías individuales is referred to as ‘constitutional protections’, ‘constitutional rights and liberties or freedoms’, or ‘civil rights and liberties’, with the caveat that these English language renditions are to be understood from an entirely different perspective than their meanings imply at the present time in the context of US constitutional law.

This chapter discusses the nature of a free speech principle and explores the coherence of four justifications for that principle: arguments concerned with the importance of discovering truth, free speech as an aspect of self-fulfilment, the argument from citizen participation in a democracy, and suspicion of government. Each of these arguments emphasises the interests of either the speaker or the audience, or perhaps that of the public in an open tolerant society. Therefore, the free speech interests of speakers, recipients (listeners, readers, and viewers), and the general public in the unimpeded communication of information and ideas are considered. These distinctions may have legal significance. Some texts confer rights on both speakers and recipients, while others provide only for freedom of speech or expression, without making it clear whether both groups enjoy rights.

This chapter examines the institutional history of constitutional protection for freedom of expression in the United States from 1900 to 1976. The discussion includes the landmark case of Virginia Board. In the United States, constitutional protection for freedom of speech is based on the First Amendment to the U.S. constitution, which came into force in 1791, four years after the constitution itself. The image of a ‘free trade in’ or ‘market-place of’ ideas is not a jurisprudentially innocent image, and its deceptiveness is discussed in this chapter. The power of the image undoubtedly plays a part in the eventual development of the commercial speech doctrine. Two court cases are presented, each of which highlights the occurrence of speech in association with other forceful freedom of speech values. The U.S. Supreme Court was very conscious in considering ‘pure’ commercial speech that it was facing an analytically new issue, and rightly so. Another case, Pittsburgh, deals with issues of sex discrimination in employment involving newspaper advertisements.

By far, the most frequent argument given by courts and commentators for the constitutional protection of freedom of expression embodies a reference to the ‘free flow of commercial information’. The general form of the argument is clear: government regulation of commercial expression constitutes an interruption of the free flow of commercial information; the free flow of commercial information is good not only for the individual but also for society; interruption of the free flow of commercial information is therefore bad; and ceteris paribus, therefore, government regulation of commercial expression should be abolished. This chapter examines the free flow of commercial information, decision-making under uncertainty, failures of reasoning, utility rights, separation of powers with respect to commercial expression, the metaphor of the marketplace of ideas, and constitutional adjudication.

This chapter examines several events in legal history that either highlight the importance of rights in the actual working of legal systems, or else challenge their importance. These events fit within the wider European framework which contains a variety of approaches to the topic. The chapter also considers national legal traditions concerning rights and their resistance to change. The main underlying argument is that the resilience of these national traditions in Europe is primarily linked to the intellectual legacy of the 19th century and its 20th-century aftermath, which is now in shambles. This unpleasant diagnosis has been around for a long time, but little has been done so far to remedy it. In this field, finding a cure means looking beyond national traditions and stereotypes, and recognizing that it is more productive to think in terms of a common European legal culture.

In liberal democracies, one is unlikely to hear a principled case for religious intolerance, disabilities, and persecution. However, state and societal practices in many contemporary Islamic states are a reminder that religious liberty in the most fundamental sense cannot be taken for granted as the birthright of modern societies — even those which have entered international legal commitments affirming freedom of religion. This chapter first considers the broad nature of religious freedom and briefly outlines the various constitutional laws that confer protection for religious liberty in different nations such as the United States, the United Kingdom, and Canada, as well as the guarantees in international law for religious rights. The chapter concludes by exploring the difficult question of how ‘religion’ is defined based on three approaches: the subjective-functional approach, the substantive-content approach, and the Strasbourg approach.

This book is concerned with the commercial expression doctrine or the commercial speech doctrine. This doctrine is the thesis that so-called commercial expression (commercial advertising, for example) deserves the same, or sufficiently similar, constitutional protection as any other form of constitutionally protected expression or speech, because it serves essentially the same purpose in essentially the same way. The argument that a certain activity should receive constitutional protection is, crudely speaking, an argument within normative political morality that the activity at issue is so important to human flourishing that not even legitimate government should be allowed to restrict its pursuit. This book examines commercial speech in the United States for the periods 1900–76 and 1976–2002, as well as commercial expression in Canada and Europe. Autonomy rights, hearers' rights, autonomy, paternalism, free flow of commercial information, and lifestyle advertising and the public good are also discussed.

This chapter explores proposed justifications for the commercial expression doctrine based on the idea that the corporation whose expression is regulated or restricted has a derived autonomy right of some kind to constitutional protection for its commercial expression or commercial speech. It argues that any robust doctrine of hearers' rights must be constrained by what is termed the Unnecessary Duplication Principle, which argues that hearers' rights are of no normative value if all they do is justify the invalidation of a restriction on freedom of expression, the invalidation of which would in any case be justified by expressers' rights. It also looks at a number of court cases and discusses freedom of information, prisoners' rights under the First Amendment, the fairness doctrine, and the limited role of hearers' rights.

Constitutional protection for the commercial expression of corporate expressers is ultimately underwritten from the point of view of normative political morality by the hearer's original autonomy right. Two of the eight theses advanced by the U.S. Supreme Court in Virginia Board implicate the autonomy of hearer-argument: the ‘keener by far’ argument and the anti-paternalism argument. These arguments, if sound, would supply the still unsatisfied justificatory need for the commercial expression doctrine. That is, they would confirm the existence of a specific kind of right belonging to hearers within the paradigm of autonomy, such that this specific autonomy right could possibly be ‘borrowed’ by a corporate expresser to justify constitutional protection for its own commercial expression. The ‘keener by far’ argument is one of two versions of an argument for hearers' rights, both of which attach great importance to a ‘free flow of commercial information’. The free flow of commercial information is assumed to be a good because it promotes utility, not autonomy.

The theme of this book is the coercive interrogation of suspected terrorists; it is important to engage in a broad discussion concerning terrorism. That discussion must begin with a definition of terrorism. Coercive interrogation, as this book proposes, in the implementation of lawful interrogations methods, intended to enable the state to most effectively protect itself against the twin threats of terrorism and an unfettered executive. An unfettered executive advocates a by all means necessary interrogation regime—devoid of constitutional protections, Congressional oversight, and judicial review. Conversely, a regime premised on the rule of law understands the constitutional and moral requirements of the limits of interrogation. Coercive interrogation enables a lawful balancing of the legitimate rights of the individual with equally legitimate national security rights of the state. No discussion of counterterrorism would be complete without addressing the balancing between the competing tensions—civil rights and national security.

The United States Supreme Court was not slow to apply the new doctrine of constitutional protection for commercial speech, albeit in somewhat of a tentative manner. Linmark concerned a township's ordinance prohibiting the posting of ‘For Sale’ or ‘Sold’ signs on real estate. The township's motive was the laudable one of promoting racially integrated housing by slowing panic selling by whites. A real estate agent and property owner sought to have the ordinance overturned on First Amendment grounds as an unjustifiable restriction on commercial speech. Despite its sympathy for the township's aims, the Court agreed with the petitioners. The Court's later mindless commitment to the ‘free flow of commercial information’ marks a lack of sophistication. The Court also itself added a fifth ground for possible legitimate restriction of lawyer advertising, that restraints on in-person solicitation by attorneys might be justifiable. This chapter looks at commercial speech cases decided by the U.S. Supreme Court.

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

Constitutional protection in the full sense (that is, a right whose enforcement may lead to invalidation of legislation) for freedom of expression in Canada is relatively recent compared with that in the United States. Prior to April 1982, the formally written Canadian constitution was essentially the British North America Act of 1867. Protection of fundamental rights and freedoms was left to legislation and the common law, following the United Kingdom tradition. All that changed with the enactment in April 1982 of the Canada Act 1982. There are questions to be asked about whether the Supreme Court of Canada's actual handling of freedom of commercial expression respects jurisprudential constraints implicit in the institutional separation of section 1 from the subsequent sections, including section 2(b), of the Canadian Charter of Rights and Freedoms. This chapter looks at several court cases on commercial expression in Canada, grouped by subject-matter: professional advertising, product advertising, solicitation by prostitutes, newspaper vending box cases, and miscellanea.

It is necessary to take the array of arguments for the commercial expression doctrine that emerge from the court cases cited in the previous chapters and assess their cogency. The arguments make many tacit assumptions — assumptions about the nature of rights, about what it is to defend a jurisprudential thesis, about the nature of constitutional rights, and about the appropriate way to argue for constitutional rights. Essentially, there are several theses that emerge about commercial expression or commercial speech in the U.S. Supreme Court case of Virginia Board, such as: commercial speech cannot be wholly outside the protection of the First Amendment; the purely economic interest of the speaker of commercial speech is a constitutionally legitimate interest; society also has an interest in the free flow of commercial information, because some commercial messages deal with matters of public interest; for the government to decide which information is proper for citizens to receive is unacceptable paternalism; and there are commonsense differences between commercial speech and other speech, which differences imply that commercial speech may receive a lower level of constitutional protection.

This chapter examines academic freedom as a concept of constitutional law. The Supreme Court has proclaimed that academic freedom is a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” However, the doctrine of academic freedom is characterized by disarray and incoherence. It is incoherent because courts lack an adequate theory of why the U.S. Constitution should protect academic freedom. This chapter argues that the theory of constitutional protection for academic freedom is fundamentally unsound, that it protects not professors as individuals or universities as institutions, but the disciplinary norms which define the scholarly profession and which universities exist to nourish and reproduce. It explains how academic freedom differs from intellectual freedom and how we might justify a constitutional law of academic freedom. In particular, it proposes a more defensible account of why the Constitution might protect academic freedom.

In the United Kingdom, a number of things have militated against the protection of civil liberties by any formal consolidation or declaration of constitutional rights. The prejudices of common layers and the empiricist leanings of political theories seem to have combined to create a climate of intellectual opinion hostile to the formulation of citizens's rights in ‘abstract’ terms. There are two distinct sets of difficulties which proponents of constitutional flexibility may invoke against attempts to declare fundamental rights. These are the entrenchment difficulty and the interpretation difficulty. In this chapter, constitutional protections against future legislative invasion of civil rights are described. There is, for example, the possibility of producing constitutional protections through procedural entrenchment. Another alternative might be to specify certain principles as entirely subject to judicial policing and others as completely modifiable by express legislative decision without judicial intervention.

There are two very powerful antecedent intuitions from normative political morality against constitutional protection for commercial expression. First, freedom of expression has to do with political scientific, or artistic expression, and not with offering products for sale. Second, the primary bearers of the right of freedom of expression are natural persons, but corporations, the prime beneficiaries of freedom of commercial expression, are not natural persons. This chapter considers the claim that freedom of commercial expression is an original autonomy right — that is, a right, a protected normative position some person possesses in some given circumstances, such that possession of it in the given circumstance is normatively justified for reasons of autonomy. Consider the claim that corporate advertising, for example, or corporate labelling practices merit constitutional protection on freedom of expression grounds, because the expressing corporation has an original autonomy right to freedom of commercial expression. Such a claim may immediately be countered by the claim that original autonomy rights accrue only to natural persons, and a corporation is not a natural person.

The remaining legal orders within which there is formal legal protection for freedom of commercial expression under the rubric of protection for human rights or rights of political morality are those of the member states of the Council of Europe and of the European Union (EU). There is perhaps some risk in speaking collectively of constitutional protection for freedom of commercial expression in Europe, in the sense that there is not only one legal order. The discourse in Europe in fact is more often one of human rights than of constitutional rights. Some case law has developed concerning the status of commercial expression in a context of rights protection. The case law develops in two ways, under the European Convention on Human Rights as interpreted and applied by the European Court of Human Rights, and under EU law generally as interpreted and applied by the European Court of Justice.