Resumen de Partial Bills of Rights
Constitutional rights charters are often narrow or incomplete compared to international human rights law or comparative constitutional models. Some rights charters, however, are especially narrow in both democratic and comparative terms. Incomplete or “partial” bills of rights (PBOR) of this kind often raise distinct interpretive challenges for courts. If persuasive historical explanations for the scope of such PBORs are unavailable, a court will have three broad ways to explain the absence, as well as presence, of various rights under a PBOR: it can identify an account for why protected rights are in some way special from the perspective of other constitutional norms of structures (allocation), or contract or expand the scope of relevant rights so as to minimize unprincipled gaps in judicial rights protection (contraction or expansion). In the case of interpretive contraction or expansion of this kind, there will often be a significant change in the scope of judicial rights protection compared to the aims or expectations of key constitutional drafters. This also has direct relevance for assessing the desirability of a PBOR as a potential model for deliberate constitutional borrowing or as a potentially principled compromise between models of pure legislative and judicial supremacy. The Article makes these arguments drawing on case studies from Australia, Canada, Israel, India, New Zealand, and the United States, but suggests that the patterns thereby identified may apply more broadly. It thus explores the implications of these insights for debates over weak- versus strong-form judicial review, but also for processes of democratic constitutional design more generally.
