Scope and protection

The modern theory of constitutional rights was formed after the Second World War. It draws a fundamental distinction between the scope of the constitutional right, and the extent of its protection. The scope of the constitutional right marks the right’s boundaries and defines its content; the extent of its protection prescribes the legal limitations on the exercise of the right within its scope. It defines the justifications for the right’s limitation by a sub-constitutional law – e.g., statute or common law. Following this distinction, the modern theory of constitutional rights is said to be based on a two-stage analysis. In the first stage, the constitutional right’s scope is determined, and the area it covers is defined. Both the right’s “positive” scope (i.e., what should be done to protect the right) and its “negative” scope (i.e., what should be done not to affect it) are determined. The right’s “core” is defined, as well as its “penumbra.” The right’s content is prescribed. Finally, the right’s boundaries – what separates it from other constitutional rights – are drawn. The second stage examines whether constitutional justifications exist to limit the realization of the right by a sub-constitutional law (e.g., by statute or common law). Specifically, this stage examines whether the legal system provides the constitutional right with full-scope protection or a more limited one. This stage examines the extent to which the right may be realized – either to its full extent or with limitations – at the sub-constitutional level. In this manner, the current theory of constitutional rights distinguishes between the boundaries of the constitutional right (“scope”) and the limitations imposed upon its realization by law (“protection”). The right’s boundaries determine its position in the universe of constitutional rights. They draw the entire spectrum of “the constitutional field” and the “contours” of the constitutional right or its Normbereich. They define the human behavior covered by the right. The limitations imposed upon a right assume it exists within defined boundaries. These limitations operate under the constitutional authorization to limit the realization of the constitutional right by a sub-constitutional law. The constitutional authorization of those limitations is often found in special constitutional provisions dubbed “limitation clauses.” At the heart of these limitation clauses lies the principle of proportionality. Modern theory therefore distinguishes between the constitutional right per se and its proportional limitations by a sub-constitutional law; between the constitutional right’s clauses and constitutional limitation clauses (the latter allowing a sub-constitutional law to limit the realization of a constitutional right). This distinction is at the heart of the two-stage analysis, which consists of the determination of the right’s scope, and the determination of the right’s limitations. Therefore, the distinction is also known as the two-stage theory.