Entrenching Bills of Rights

The entrenchment of a bill of rights, and the consequent removal of the matters covered in the bill from the domain of the legislature, is commonly thought to constitute a transfer of power from the legislature to the courts. Yet the simple answer to this thought is that, strictly speaking, no such transfer takes place, for in acquiring power to determine the content of a bill of rights the courts do not acquire the power to legislate that the bill denies to the legislature. The more complex response is that what the courts acquire when a bill of rights is entrenched is the power to set a constitutional agenda, a power that the legislature may never have had and so has not necessarily lost, a power the political significance of which depends on the form and content of what is entrenched and the value and character of the power it leaves in the hands of the legislature. In particular, the entrenchment of a project of governance (as typified by the positive duties conventionally associated with economic and social rights) raises concerns about the power exercised by courts that are not raised by the entrenchment of a project of non-governance (as typified by the negative duties conventionally associated with civil and political liberties). Nongovernance may be objectionable, but not because the courts secure it. Governance, however, may be objectionable just because the courts secure it.