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Vicki C. Jackson, Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation, 21 Jerusalem Rev. Legal Stud. 77 (2020).

Abstract: Grégoire Webber and his colleagues in the jointly authored collection, Legislated Rights, have produced an important book whose central purpose is to reorient constitutional theory to the role of legislatures in protecting rights. They open the book by saying, “[t]he legislature is well placed to secure and promote human rights. That is this book's central thesis.” I am in considerable agreement with the general idea of expanding constitutional theory to include more of a focus on legislators and legislatures. The role of legislators in positively promoting constitutionalism and protecting rights has been neglected in constitutional theory; too often legislation is viewed as presumptively problematic when evaluated through the lens of principled judicial decision-making, and what Jeremy Waldron calls the “dignity of legislation” ignored or undervalued. This review is thus primarily an appreciation of several points made in the book, including its effort at a balanced presentation in some chapters of the relative roles of courts and legislatures in the protection of rights. Along the way, I will note some disagreements, including with their argument about the nature of rights. Many of the book’s arguments for giving legislatures a more central role in constitutional theory and in the protection of rights hold, I suggest, even if rights are conceptualized differently from the view of rights as, in a sense, categorically absolute. In closing, I will extend the authors’ arguments to suggest that if legislatures are to be viewed as playing a more central role in fulfilling rights guarantees in constitutions, then we need to develop a richer and more nuanced set of conceptions and discourse around the role obligations of legislators in constitutional democracies.