The Politics of Fundamental Rights: Lessons from Taiwan’s Path to Same-sex Marriage

In a liberal democracy, who gets to decide on the very recognition of an unenumerated fundamental right that can trump the will of the majority? This question often pits constitutional liberals against constitutional democrats, though a more fruitful inquiry is arguably to ask how the surrounding moral and cultural disagreements can be processed (though not necessarily settled) in ways that honor our dual commitment to liberal democracy. This paper seeks to reflect on the politics of fundamental rights by drawing lessons from Taiwan’s recent development in recognizing the fundamental right to same-sex marriage. In light of the Taiwan experience, this paper contends that judicial constitutionalism is but a form of political constitutionalism, and political leadership on the part of representative elites plays a crucial and indispensable role in securing and implementing a new fundamental right as so recognized by the constitutional court.