In Chapter 2, the classification of data processed by MDTs under the General Data Protection Regulation (GDPR) is examined. While the data processed by MDTs is typically linked to the category of biometric data, accurately classifying the data as special category biometric data is complex. As a result, substantial amounts of data lack the special protections afforded by the GDPR. Notably, data processed by text-based MDTs falls entirely outside the realm of special protection unless associated with another protected category. The book advocates for a shift away from focusing on the technological or biophysical parameters that render mental processes datafiable. Instead, it emphasises the need to prioritise the protection of the information itself. To address this, Chapter 2 proposes the inclusion of a new special category of ‘mind data’ within the GDPR. The analysis shows that classifying mind data as a sui generis special category aligns with the rationale and tradition of special category data in data protection law.

The chapter examines the public’s ideas and aspirations about the future constitution, through thousands of letters and memoranda that diverse publics sent to the Constituent Assembly. The public’s demands were informed by their everyday life experiences, generating constitutional ideas that would take years to find their ways into global constitutional governance. We focus on the new politics of caste that emerged with the promise of a transformative constitution, wherein caste groups invoked and disseminated the language and vocabulary of liberal constitutionalism for both regressive and progressive aims. We uncover a fuller range of public voices absent from the Constituent Assembly. The public demands were based on deliberative process of reasoning, and often grounded on universal principles that would apply to all groups. We thus uncover in this chapter a reservoir of public constitutional thinking, a body of constitutional theory that emerged from India’s streets.

This chapter examines the Supreme Court’s practice, over approximately a century and a half, in developing and applying the “substantive due process” doctrine. The animating premise of that doctrine is that the Due Process Clause confers judicially enforceable protections against substantively unfair infringements of certain “unenumerated” yet fundamental or important rights. After the Court’s embarrassed climb down during the 1930s from a line of decisions enforcing rights to freedom of contract, the Court reembraced the Due Process Clause as a source of “unenumerated” rights in Roe v. Wade (1973) and, later, in decisions protecting rights to engage in private acts of sexual intimacy and extending the unenumerated right to marry to same-sex couples. Although the current Court overturned Roe in Dobbs v. Jackson Women’s Health Organization (2022), the majority opinion avoided a strictly originalist approach by embracing precedents holding that the Due Process Clause protects some fundamental substantive rights that are grounded in “tradition.” The chapter explores the conservative justices’ reasons for adopting that position. It also considers whether substantive due process decisions invalidating prohibitions against sodomy and laws defining marriage as necessarily involving one man and one woman can survive under the rationale of Dobbs.

Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.

This chapter examines the Supreme Court’s historically evolving interpretation of the Equal Protection Clause, including its recent embrace of the view – initially uttered by a solitary dissenter in an 1896 decision in the case of Plessy v. Ferguson – that “[o]ur Constitution is color-blind.” In equal protection cases, the Court has rarely claimed originalist support for its decisions, even when effecting sharp changes of course, as in its iconic decision in Brown v. Board of Education (1954). In a recurring pattern, the Court’s leading equal protection decisions have condemned forms of discrimination –– first on the basis of race, then sex, and then sexual orientation –– only when public opinion began to view them as unjustifiably bigoted. This chapter analyzes the Court’s recent decision to invalidate practices of affirmative action in higher education that prior decisions had permitted for more than forty years. It also surveys a branch of equal protection doctrine that strictly scrutinizes deprivations of rights that the Court deems “fundamental” under the Equal Protection Clause, centrally including voting rights. It explains continuities, but also revealing disparities, between the approaches to voting rights of the liberal Warren Court, on the one hand, and the conservative modern Court, on the other.

This chapter considers the role courts play in protecting fundamental rights. It addresses three questions. What role do domestic courts play in the protection of rights in different constitutional settings? In examining key elements of constitutional design, the chapter show how there are significant variations in how courts protect rights across the world. Secondly, what role should courts play in the adjudication of rights? Here it is argued that courts in their ordinary work, applying legislation and the common law, do and must protect rights. With regard to the more contested question whether courts should protect rights under a constitutional bill of rights, the chapter argues that the case for such a role for courts is at its strongest in certain circumstances but that it cannot be claimed that in all circumstances courts should be conferred with this power. Finally, the chapter considers the current debates in the United Kingdom concerning a possible repeal of the Human Rights Act, and withdrawal from the European Convention of Human Rights, and expresses dismay at the prospect of the repeal of the Human Rights Act, given how elegantly that Act combines protection for rights by UK courts with the doctrine of parliamentary sovereignty.

It is common ground that a bill of constitutional rights regulates the relationship between individual and the state. Fundamental rights create negative obligations for the state – duties not to interfere with life, liberty, conscience, speech, privacy etc. To what extent, if at all, though, do fundamental rights also have a bearing on relations between individuals? Can they also obligate the state to actively promote liberty in society? Are they focused merely on state abuse but silent on social inequality – or can they be mobilized as vehicles for social justice? Undeniably, constitutionally-sensitive conflicts routinely arise, e.g., between capital and labour; between financial service providers and vulnerable consumers; between vulnerable groups themselves, and so on. However, the “constitutionalisation” of private law relationships has not always been seen as an unmixed blessing. A first concern is that the expansion of substantive constitutional norms beyond the negative basic liberties eliminates the domain of private law and private autonomy that is an essential characteristic of liberal societies. A second concern is that constitutionalisation transfers substantial regulatory authority from democratic legislatures to constitutional courts. This chapter argues that that neither of these two concerns necessarily arises in connection with the doctrine of (indirect) horizontal effect.

Constitutions set out fundamental principles of political morality that bind institutional action and assign strong political rights to individuals. At surface level, the principle of proportionality is a methodological device. It operates as a doctrinal heading under which courts scrutinize state interference with individual liberty and assess the scope of their own authority. According to the orthodox understanding of proportionality, this scrutiny takes the form of balancing rights against public interest, which raises questions about the legitimacy of judicial review. This chapter argues that, contrary to the orthodox view, proportionality is primarily about the normative foundations of constitutional rights and the duty of courts to pursue, through principled legal reasoning, the moral truth about individual rights. On this rival account of proportionality, rights are equality-based moral norms constraining state action and no actual balancing takes place by courts. If we are to take seriously both the idea of fundamental rights and the principle of proportionality, we must abandon the misleading metaphor of balancing and the problems of incommensurability and judicial scepticism to which it leads.

The right to freedom of thought occupies a dubious position in Brazil. It completely lacks explicit constitutional or legal protection, despite a strong implicit recognition through derivative freedoms like expression, press and privacy. This research addresses this paradox, examining constitutional and legal frameworks, scholarly jurisprudence, significant court cases, and international treaties to delineate Freedom of Thought’s status in Brazil. It also considers recent legislative initiatives and the challenges that regulating misinformation poses for the right. The findings indicate that the right to Freedom of Thought functions as a vital juris-philosophical criterion in Brazil, underpinning various fundamental rights and playing a key role in the Supreme Court’s legal hermeneutics. Nevertheless, the absence of explicit protection leads to several limitations in its safeguard. First, it lacks a clear definition of its content and a precise delimitation of what it entails. It is also not acknowledged as a standalone right, being often conflated with other rights. Finally, its legal interpretation fluctuates with Brazil’s unstable case law. Remarkably, the internal dimension of Freedom of Thought remains largely unprotected and overlooked. The research underscores the need for explicit constitutional amendments and clearer legislative definitions to safeguard the right comprehensively, ensuring consistent legal recognition and protection in Brazil.

In spring 2024, the European Union formally adopted the AI Act, aimed at creating a comprehensive legal regime to regulate AI systems. In so doing, the Union sought to maintain a harmonized and competitive single market for AI in Europe while demonstrating its commitment to protect core EU values against AI’s adverse effects. In this chapter, we question whether this new regulation will succeed in translating its noble aspirations into meaningful and effective protection for people whose lives are affected by AI systems. By critically examining the proposed conceptual vehicles and regulatory architecture upon which the AI Act relies, we argue there are good reasons for skepticism, as many of its key operative provisions delegate critical regulatory tasks to AI providers themselves, without adequate oversight or redress mechanisms. Despite its laudable intentions, the AI Act may deliver far less than it promises.

Chapter 2. The removal of James II from the throne in 1688 and the settlement of the crown jointly on William and Mary gave rise to an extensive debate about the legitimacy of the new regime. Many wrote to celebrate the ending of arbitrary rule. Some commentators (notably James Tyrrell) focused on the final securing of the fundamental rights of the people in the manner promised by the ancient constitution of England. But others (notably John Locke) preferred to appeal to the natural rights of the people as the only sound basis for guaranteeing freedom under government. At the same time, however, many rejected the settlement of 1688. The Jacobites objected that William and Mary were merely usurpers, while in the course of the 1690s a group of ‘commonwealth’ writers began to argue that the crown and executive were failing to keep their promise to outlaw the use of arbitrary power. The chapter concludes by discussing the contributions of Molesworth, Trenchard and Toland to the development of ‘commonwealth’ claims about the policies that will need to be followed if the freedom of the people from subjection and dependence is to be secured.