The Logic of Constitutional Rights

Eric Heinze

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351886451
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Individual rights raise endless conflicts and spawn intricate standards and policies. Increasing involvement by courts has added still greater complexity. It would seem that few meaningful principles can unite an area of law plagued by such uncertainty. In this book the author argues that a fixed structure underlies that complexity, determining the kinds of arguments that can be made about individual rights. Examples are drawn from the world's oldest and most intricate body of law on civil rights and liberties: the case law of the United States Supreme Court. Yet the model is designed to account for any legal system that recognizes civil rights and liberties. The author applies techniques of logical analysis (although no prior knowledge of logic is required) to identify a deeper discursive structure. He shows how simple concepts of harm and consent, which do not ordinarily appear to be relevant in all cases, provide unity within and across regimes of individual rights.

Chapter 1

Rights and Restrictions

Should the patients in Glucksberg have won their case? Isn’t my body my own business? Not necessarily. The Supreme Court cited traditional prohibitions on suicide to stress that preservation of human life has always been a concern of English and American law.¹ It noted that legal reforms were introduced initially to ease harsher punishments, such as disinheritance of the survivor’s family members, and did not reflect an abandonment of the core moral value—society’s interest in preserving human life.² Does that morality leave me without control over a crucial part of my existence? Not necessarily. A majority of Justices agreed that more heavy-handed intrusions into the autonomy of the terminally ill patient would at some point violate the Constitution.³ At a higher level of abstraction, Glucksberg presents a long-standing tension within constitutional law and within liberal democracy: the tension between individual autonomy and the interests of society. The case also reflects a fundamental conflict within rights discourse: the conflict between rights and restrictions.

Movement in the direction of a unified model means adopting certain simplifying assumptions that will display a shared structure, while eliminating elements that have no bearing on that structure. In this chapter we will adopt some assumptions about concepts of ‘right’ and ‘restriction’ that will facilitate the later analysis of harm and consent. This chapter is purely preliminary, concerned with the meanings of some basic terms. (Technical points are discussed in the endnotes.) Readers wanting to dive into the nuts-and-bolts of the model may want to skip this chapter for now, relying on an ordinary sense of concepts such as ‘right’, ‘restriction’, ‘assertion’, ‘recognition’, ‘adoption’, ‘application’ and ‘generality’, returning later if the use of those terms seems unclear.

1.1 Recognition

This book proposes a model that can be applied generally to cases about rights protected by the Constitution. That aim raises some questions from the outset. Is it always clear which disputes are about constitutional rights? If you think that there is no constitutional right to commit suicide, then you may think that a dispute about a right to commit suicide is not a dispute about a constitutional right. More generally, you may think that a model of constitutional argument must distinguish between those norms that are constitutional rights and those that are not. So we begin with an old problem. What is a constitutional right? Which norms count as constitutional rights?

One approach, the ‘extensional’ approach,⁴ seems easy enough: just draw up a list of all constitutional rights. The problem with that approach is that the black letter of the Constitution does not spell out all constitutional rights with precision. Sources external to the constitutional text, such as the case law, or the legislative record or history, or the effects of federal or state legislation, or of federal or state executive or administrative acts, generate little consensus in controversial cases. In isolation, a word like ‘liberty’ in the Due Process Clause provides no clue as to whether, or to what extent, such activities as contraception, abortion or euthanasia should be included. The standard treatises devote thousands of pages to the task of pinpointing our constitutional rights and still leave central points inconclusive. The treatises provide running narratives, not concise lists, and, in any event, are subject to constant change. There can be no list of constitutional rights that is both exhaustive and exhaustively precise.

A second approach (the ‘intensional’ approach) might be to develop a set of criteria—constitutional text, case law precedent, framers’ intent, historical context—for deciding which norms do and do not count as constitutional rights. For any given dispute, we would apply those criteria. The result would be either ‘Yes, the norm is a constitutional right’, or ‘No, the norm is not a constitutional right’. Yet here too, there can be no more clarity or certainty about such criteria than there can be about a definitive list of rights. No set of criteria could provide yes-or-no certainty on every dispute. Such criteria would have to be just as exhaustive, and exhaustively precise (and therefore just as free from dispute about the meaning, scope and content of each criterion) as the extensional list was supposed to be.

Both the extensional and the intensional approaches can be called substantive. Substantive approaches seek to define a constitutional right with reference to its content. We see that neither of those approaches can succeed. Instead of a substantive approach, we will adopt an institutional approach. We will not ask what the content of a constitutional right is. We will leave to one side the difficult and controversial question of which specific norms count as constitutional rights. Instead, we will ask, from an institutional viewpoint, what it means to be a constitutional right.

We will begin with some uncontroversial assumptions. First, we will assume that there are norms that can become constitutional rights. We will assume that a dispute about whether x is a constitutional right presupposes that x is a norm. The dispute, then, is about whether that norm is a constitutional right. (The term ‘norm’ is by no means self-evident, but, for examining arguments about constitutional rights, can be assumed to have some core of sufficiently accepted meaning. In any event, it has not emerged as a generally controversial concept in the constitutional case law.) The number of imaginable norms is infinite. We can always imagine a given norm x, however obvious or obscure (‘Government should not kill people arbitrarily’, ‘People should be able to speak their minds’), and can then ask about it whether, or in what way, it is a constitutional right, regardless of whether we find a certain or uncontroversial answer to that question.

Second, we can assume easily enough that some norms are in fact constitutional rights, even if we disagree on which norms hold that status. We will then ask how a norm acquires the status of a constitutional right.⁵ That question involves complications of its own. A norm can be written into the text of the Constitution. Congress, or state and local governments, can adopt rules affecting its extent and limits. Administrative agencies can promulgate regulations governing its interpretation or implementation. Executive branches can adopt policies and practices to police its exercise. The ruling of a federal or state court is binding until a higher court rejects it; and, ultimately, the constitutional status of a norm is what the Supreme Court says it is, subject to constitutional amendment. Those processes are complex, but the only further assumption we need to draw from them is straightforward,

Axiom of Recognition: A Norm is A Constitutional Right If It is Bindingly Recognized as Such.⁶

That axiom uses five key terms: ‘norm’, ‘constitutional’, ‘right’, ‘bindingly’, and ‘recognized’. For our model, we will not need exhaustive accounts of those terms, but only a minimal core of generally accepted and uncontroversial meaning. The question as to how a ‘norm’ becomes a ‘constitutional right’ is the one we are trying to answer, so our starting point will be the phrase ‘bindingly recognized’. That phrase can certainly raise problems. For example, is a constitutional decision binding when subsequent case law has effectively eroded, but not expressly overruled it? Plessy v. Ferguson⁷ was not expressly overruled by Brown v. Board of Education,⁸ but hardly survived it.⁹ That question is important, but need not be answered here. We need merely agree that there are some processes whereby a norm becomes a constitutional right. The definition that the axiom then provides of ‘constitutional right’ is the only one that we will need to assume: a norm is a constitutional right if there is some process whereby it can become a constitutional right, and if that process is executed.¹⁰ Such a definition is question-begging, as it leaves open the question as to which processes qualify. But that defect poses no problem. Again, we need only stipulate that there is some set of norms that count as constitutional rights. For our purposes, it will be unnecessary to be able to list or to define them exhaustively.¹¹

Note also a somewhat finer point. The term ‘recognized’ allows that a norm can acquire constitutionally protected status in the familiar sense of an express pronouncement of a competent branch of government. That does not mean that express recognition is the only way for a norm to become a constitutional right. We will simply assume, without having to examine the question, that there may be cases in which a norm becomes a constitutional right, not because it is explicitly recognized as such, but because it is in fact treated as such—implicitly recognized as a constitutional right. Under an argument once advanced by Justice Brennan,¹² the Eighth Amendment, which prohibits cruel and unusual punishments,¹³ would protect a convicted criminal’s right not to be subjected to branding or earcropping: (i) despite the currency of those practices at the time the Bill of Rights was adopted; (ii) despite the fact that the words of the Fifth Amendment ostensibly allow such treatment (the Fifth Amendment’s double jeopardy clause requires only that no person ‘shall be subject for the same offence to be twice put in jeopardy of life or limb’¹⁴)...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Series Preface
• Introduction
• 1 Rights and Restrictions
• 2 Agents
• 3 Harm
• 4 Consent
• 5 The Background Theories
• Works Cited
• Index