This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

The declarations of rights issued during the American and French revolutions are the most important outcomes of the eighteenth-century’s debates about natural rights. Concise and clear in their language, these declarations distilled decades of theorizing into easily understood axioms meant to make citizens aware of their rights and of their entitlement to participate in the making of the laws under which they lived. The eighteenth-century declarations on both sides of the Atlantic were drawn up by legislators determined to protect the institution of slavery that so flagrantly contradicted their sweeping statements about natural rights, and they were not intended to grant women equal rights with men. Their expansive language, however, provided a basis for excluded groups to formulate demands that rights be extended to them, even if the authors of the declarations had not intended to do so. The most influential of these documents, the 1789 French Declaration of the Rights of Man and of the Citizen, used sweeping, universal language. Intended as temporary, it was swiftly canonized as the embodiment of the principles of the French Revolution. The more radical French Declaration of 1793 incorporated social rights to welfare, work, and education. Napoleon rejected the idea of including a declaration of rights in the constitution he imposed in France 1799, but the 1948 Universal Declaration of Human Rights showed the lasting power of the tradition inaugurated with the Virginia Declaration of 1776.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

Describes the phenomenon of “Sister Republics” and shows that it was limited until the first Italian campaign of Napoleon Bonaparte. To better understand the interactions between the “mother” Republic and her “daughters,” this chapter studies their constitutions and bills of rights, which reveal that some of them were shaped by native patriots, while others were forced upon them by the French government. In a way, the “Sister” Republics became a “constitutional laboratory” for France. All these changes did not happen without chaos and violence. In the “sister” republics too, force and coercion were necessary to implement the new regimes and to silent the factional struggles and the counter-revolution. Thanks to the French army, however, revolutionary terror did not win the day at least until 1799. In spite of all these problems, the young republics experimented new institutions and improvements for the time being and for the future. But, by a strange irony of fate, the only true “sister” republic was the republic of the United States, that is the only one which was not really influenced by the French Revolution, and which was to become a model in the following revolutionary waves.

At the end of the sixteenth, and the beginning seventeenth century some communities and countries began experimenting with the new enlightened ideas and put fundamental orders and government instruments in place: precursors to written constitutions that were about to follow suit. Mostly these orders or instruments served as checks on monarchic power and were put in place (granted) by the monarch himself. They constitute the first generation of dedicated, written monarchical constitutions.

Even before the century had ended, battle was commenced over how its momentous events would be remembered. During the years 1698–1700 a series of Roundhead memoirs and treatises – the ‘Whig canon’ – were printed. They were devoted to ‘attacking the maintenance of standing armies by the state, inveighing against priestcraft, and asserting the primacy of the ancient constitution’.1 The publisher responsible for the project was John Danby, working closely with the radical intellectual John Toland. For Danby and Toland, these works demonstrated that the revolutionary events of the century had been validated by and were a vindication of England’s ancient constitution (which now needed protection against the encroachments of William III). Fire was quickly returned by the Tory press, which began publishing Royalist memoirs and the like. It was in the midst of this that the first publication of Clarendon’s great History of the Rebellion commenced, with the first volume appearing in 1702. Clarendon’s son, Laurence Hyde, commended his father’s role ‘in preserving the constitution of our government entire’. English government repudiated political violence: ‘the nature of our excellent government hath provided, in the constitution of it, other remedies, in a Parliamentary way’ to preserve the Crown’s prerogative and the liberties of the people. In particular – and this was a topical subject given the rise of politics out of doors in the later Stuart period – the Whig habit of ‘appealing to the people out of Parliament as it were to a fourth estate of the realm’ was shown to be ‘just another way of undermining the ancient and true constitution’.2

Australia is unusual in lacking a formal bill of rights. Nevertheless, rights protections have developed, initially in the context of the emergence of settler colonialism within the British Empire. While Indigenous people were only gradually brought within the status of subjecthood, and have continued to be denied fundamental rights, early settlers including convicts had a well-developed sense of their rights as freeborn Britons. The development of the jury system, self-government and democracy were the context for a rights regime associated with a colonial liberal order in the second half of the nineteenth century. From the late nineteenth century, Australia developed a system of social rights based on the elevated status of the male breadwinner. Through the first half of the twentieth century, the British basis of rights claims remained dominant in Australia, but from the 1940s Australia was gradually drawn within an international human rights order, in a manner that strengthened the ability of marginalised groups to make rights claims through appeals to international standards and covenants. Despite the continued absence of a constitutional or legislative bill of rights, governments and courts have been active in recent decades in developing rights protections across a wide domain.

Clearly the PRC would be – and was – against any significant moves by the UK in the meantime. Unlike the usual colonial template for the emergence of independent entities, whereby self–government was introduced on the way to formal independence, Hong Kong was no Malaya or Nigeria. By the terms of the Declaration itself, even from the UK’s perspective, what was involved was the ‘restoration’ to China of Hong Kong, which now was to be accompanied by nothing far short of a calculated provocation. The Joint Declaration had not provided, or promised, democratic reform. It was to be promised subsequently in China’s Basic Law for post–handover Hong Kong. Equally the Joint Declaration did not prevent explicitly the UK from commencing democratic reforms once Hong Kong was lost to it. That was the door wherein Britain went.

Chapter 6 traces the trajectory of a renewed consciousness of the rule of law and various freedoms in the final decade of colonial rule and unpacks the geopolitical concerns and motivations of the British government in de-silencing Hong Kong before the handover in 1997. The conclusion in 1984 of negotiations between Britain and China on the reversion of Hong Kong’s sovereignty to the latter marked the opening of an era of liberalistic rule of law and individual freedoms in Hong Kong. Laws and regulations that had been used to suppress free speech, control publication and prosecute political protesters were loosened or repealed one after another in the late 1980s and early 1990s. Hong Kong’s first statute expressly recognising freedom of speech, assembly and association was passed only in 1991, just six years before the colonial era came to an end. Not only were laws and senior judicial appointments liberalised in the last decade of British rule, but the 1980s and 1990s also witnessed unprecedented levels of public discussion of, and official and media narratives on, the importance of free speech and the rule of law to Hong Kong.

In the wake of 9/11, postsecularism has emerged as a capacious critical perspective that challenges the historical narrative of Enlightenment secularization. Postsecular critique observes the persistence of religion in modernity and connects its persistence to historical religion as a longer and unbroken narrative of national, cultural, and legal discourses. Drawing on intellectual history, the anthropology of religion, and New England colonial historiography, this essay argues that our contemporary understanding of the United States is deepened by rereading the nation’s puritan past from a postsecular perspective. The essay considers the travails of Roger Williams, the Antinomian Controversy, and the puritan treatment of the early Quakers as important contributions to American perspectives on the separation of church and state, the role of spirituality in the secular, and the legal and procedural application of “tolerance.”

In this Chapter, I consider what lessons can be learned and pathways forward. The reproductive battleground was once in the courts, where incremental advancements through landmark decisions were achieved. Skinner v. Oklahoma (overturning a compulsory sterilization law that treated similar crimes differently), Griswold v. Connecticut (overturning a Connecticut law that barred married couples from accessing contraceptives), Eisenstadt v. Baird (striking down a Massachusetts law that restricted non-married persons from accessing contraceptives), and Roe v. Wade (decriminalizing doctors’ performing abortions) formed the foundation for the reproductive rights discourse, advancing concepts such as privacy and autonomy in the reproductive health space. However, recent retreats from the primacy of those holdings by the Supreme Court suggest that, at least for the present time, the Court may gerrymander reproductive rights and weaponize the First Amendment to advance the personal views of five conservative male Justices of the Court. Drawing on brilliant contributions of scholars, civil society, activists, a bold new cohort of female legislators at the state and federal levels, and intuitions of judges committed to the equality of women, this Chapter concludes that a Reproductive Justice Bill of Rights is needed and that new pathways in litigation must involve an equal protection analysis.

This chapter critically understands the seemingly spontaneous emergence of rights consciousness in the 1980s, exploring first the politics of the so-called “human rights explosion”, focusing on government and activist responses to 1978’s 30th anniversary of the passage of the UDHR. Stalled bids for an Australian Bill of Rights under the Hawke government and the creation of a national Human Rights Commission (1981–6) occupy the remainder of this chapter. These developments are explored alongside synchronous campaigns for a treaty or Makarrata with Aboriginal Australians and recognition of Gay and Lesbian rights, as well as the continued intransigence of conservatives – in particular Queensland Premier Joh Bjelke-Petersen and the decade’s “New Right”. Invented in the 1940s, ignored, experimented with or contested in later decades, superficially at last the 1980s saw government, the legal system and many social movements adopt human rights’ precepts at a startling pace. An explosion, even a revolution, was clearly underway: but there was seemingly as little clarity as ever on what human rights actually meant. Was this, in the end, a popular groundswell or a revolution from above?

Connecticut’s Roger Sherman and Oliver Ellsworth were among the most important participants in the War for Independence, the Constitutional Convention, and the First Federal Congress. As well, both served on their state’s Superior Court, and Ellsworth was chief drafter of the Judiciary Act of 1789 and Chief Justice of the United States from 1796–1800. Their religious convictions, informed by Reformed theology, influenced their contributions to the creation of America’s constitutional order, and they represent well the 50–75% of Americans in this era who Calvinists.