After the Rights Revolution: Bills of Rights in the Post-Conflict State

“After the Rights Revolution: Bills of Rights in the Post-Conflict State” (2010) 6 Annual Review of Law and Social Science 301-322.

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Bills of rights are now central components of liberal democratic constitutions. But debates over the character and content of bills of rights are no longer at the center of more recent rounds of postconflict constitutional politics. This review puzzles through the rise and decline, but persistence, of rights-based constitutionalism. Neither comparative constitutional law nor constitutional politics offers the answer. The literature on civil war settlement suggests that bills of rights serve two functions in postconflict constitutions: a regulative role to check the abuse of public power and a constitutive role to serve as the basis of a new constitutional identity. Bills of rights cannot do the work that is expected of them. Politicized judiciaries, constitutional underenforcement, and the ex post nature of judicial review undermine the ability of the bill of rights to serve as a credible commitment against future abuses of human rights. Moreover, the idea of a bill of rights as a source of shared political identity abstracted from a contingent political and historical context is unlikely to succeed in practice.