A model of constitutional conflict

How should the legal system address conflicting constitutional rights? The answer to this question is usually found within the system’s process of legal interpretation. Such interpretation examines the text as a whole. Considerations of analytical clarity, however, require us to draw a distinction between merely interpretive issues and conflict-of-rights issues; the former, in this context, deal with the meaning of the constitutional text; the latter examine its validity. Accordingly, a distinction is made between issues relating to the scope of constitutional rights – which are interpretive in nature, and may be resolved as part of purposive constitutional interpretation – and issues relating to the conflict between constitutional rights – which are not interpretive in nature, and therefore cannot be resolved within the confines of purposive interpretation but rather should be resolved by the constitutional rules relating to the validity of the rights.

Regarding questions of constitutional validity, what is the proper way to address conflicting constitutional rights? The answer is that, when two principle-shaped rights conflict, such a conflict should not affect the validity of the rights or their scope. Instead, such a conflict would affect their realization. The means by which a constitutional right may be realized are determined at the sub-constitutional level, as when a statute or the common law may limit one of the conflicting rights (or both). Such limitations on the conflicting rights are constitutional insofar as they comply with the proportionality requirements set by the limitation clause. Accordingly, a conflict between principle-shaped constitutional rights creates what Alexy calls a “derivative constitutional rule,” which reflects the rules of proportionality. This new constitutional rule – as its name indicates – stems from the constitution, but in my approach, unlike that of Alexy, it operates only at the sub-constitutional level. It does not affect the scope of the rights involved; rather, it affects their realization. It deals with cases in which a constitutional right is limited by a sub-constitutional law (either a statute or the common law). It then determines the constitutionality of this limitation, or lack thereof. It does not determine the scope of the limited right. The derivative constitutional rule’s determinations operate only at the sub-constitutional level.