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The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny

14 Mar 2019-
TL;DR: The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via "strict scrutiny" and other, similar, judge-crafted tests as mentioned in this paper.
Abstract: What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.
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Stephen Siegel1
TL;DR: In contrast to their obsession with Brown, originalists have paid scant attention to Bolling v. Sharpe, the case that prohibited the national government from segregating the District of Columbia's schools.
Abstract: The vogue for originalism in constitutional theory and the Constitution's condemnation of race-conscious laws lie in uneasy tension. Aware that no constitutional theory that impugns Brown v. Board of Education can possibly be accepted, many originalists have elaborated various arguments to support its rightfulness. Focused on Brown, these originalist inquiries discuss the power of the states to enact color conscious laws. In contrast to their obsession with Brown, originalists have paid scant attention to Bolling v. Sharpe, the case that prohibited the national government from segregating the District of Columbia's schools. Even though Bolling undergirds all equal protection analysis of federal law, there are almost no originalist studies of the propriety of that case and its progeny - other than repeated concessions that its Fifth Amendment Due Process Clause analysis is unsupportable. The Supreme Court, however, never has questioned Bolling's holding and, over time, has expanded the case's rationale into a general proscription of invidious federal racial discrimination. Then, in 1995, in Adarand v. Pena the Court extended Bolling to hold that federal race-based affirmative action laws are subject to the same strict scrutiny test as laws imposing burdens on minorities. The vote in Adarand was 5-4. Adarand's bare majority depended upon solid support from the Court's three Justices committed to construing the Constitution from an originalist perspective. Yet neither the Court nor its originalist Justices offered any historical analysis to support the belief that the Constitution, as understood by those who framed and ratified it, permitted the national government little or no power to legislate race-based classifications. This Article undertakes the originalist inquiry so clearly lacking in Adarand and the scholarly literature. It is a thorough originalist investigation of the federal government's power to enact color-conscious laws, both invidious and benign that considers the founding and Reconstruction eras. The Article is premised on a comprehensive consideration of race-conscious colonial, state, and federal statutes from the beginning of European settlement through the Reconstruction era.

20 citations

Posted Content
TL;DR: The role of intent analysis in the constitutional law of punishment has been examined in this article, where it is argued that the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent.
Abstract: Forget dogs: do people distinguish between being stumbled over and being kicked? Assessments of intentions are considerably more complex than Holmes’s classic quip suggests. This Article examines the substantial, but so far overlooked, role of intent analysis in the constitutional law of punishment. As a doctrinal matter, the success or failure of a constitutional challenge to punishment often depends on a judicial assessment of official intent. As a normative matter, constitutional theory and moral philosophy offer conflicting accounts of the significance of intentions to the legal or moral permissibility of acts. Many of the constitutional theorists’ arguments for motive analysis have little applicability in the context of state punishment, and many of the philosophical reasons to deny the normative significance of intentions are especially powerful in that context. If the Constitution is to provide meaningful limitations on the power to punish, we should reconsider, and reduce, the current doctrinal emphasis on state intentions.

10 citations

Posted Content
TL;DR: Equality Without Tiers as mentioned in this paper is a comprehensive analysis of tiered equal protection review and argues that the current framework has outlived its utility and functions in many respects as a barrier to equality.
Abstract: Equality Without Tiers offers a comprehensive analysis of tiered equal protection review and argues that the current framework has outlived its utility and functions in many respects as a barrier to equality. As an alternative to the current ossified test, the article develops and tests a single standard of review aimed to provide a more finely calibrated response to the complexities of discrimination in the 21st century. To support this argument, the article focuses first on tensions in the current tiered framework for equal protection review, pointing to, among others, the Court's variously weak and strong approaches to rational basis review and the largely acontextual approach to affirmative action. Then, after identifying class legislation as the key focus of equal protection analysis, the article distills a single standard from the Court's extant equal protection jurisprudence. With this standard in place, I argue, both theoretically and through application of the standard to the several equal protection cases decided during the past three decades, that a single standard can enable sufficiently careful review to capture prejudice-infested classifications while not becoming excessively rigid. Against this background, the article concludes that the tiers may be understood best as a transitional analytic tool to assist courts in identifying impermissible bias in once-natural classifications. At the same time, I argue that the analysis prompted by the tiers is unduly simplistic and that serious scholarly consideration should be given to the possibilities for equal protection review opened up by a single review standard.

8 citations

Posted Content
Matthew D. Adler1
TL;DR: In this article, the authors argue that the conventional view of "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.
Abstract: Constitutional rights are conventionally thought to be "personal" rights The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars In this Article, I argue that the conventional view is incorrect Constitutional rights, I claim, are rights against rules Constitutional reviewing courts operate at the same level of generality as legislatures Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria The strength of the litigant?s personal claim is irrelevant I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere It explains why constitutional doctrines are typically framed in terms of "tests" (eg, narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong

8 citations

Posted Content
TL;DR: In United States v. Windsor, the Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation as mentioned in this paper, and therefore did not reach the question of whether states could deny same-sex couples the right to marry.
Abstract: In United States v. Windsor, the Supreme Court left many people unsatisfied when it failed to identify the level of scrutiny to apply to laws that classify by sexual orientation. That question however was not even presented. DOMA makes no reference to sexual orientation, but it does speak of “man” and “woman.” It classifies on the basis of sex. Sex-based classifications are presumptively unconstitutional. The Court avoided this rationale for its result, probably because it did not want to reach the question of whether states could deny same-sex couples the right to marry. The equal protection analysis upon which the Court did rely, the lesser-used “bare desire to harm” doctrine, had nothing to do with levels of scrutiny. It looked past that heuristic device to the underlying purposes of equal protection. This was a rare but appropriate response to an unusual kind of law, one that singles out a particular class and imposes an unprecedentedly broad disability upon it.

5 citations

References
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Journal ArticleDOI
TL;DR: In contrast with special rights, which constitute a justification peculiar to the holder of the right for interfering with another's freedom, general rights are asserted defensively, when some unjustified interference is anticipated or threatened, in order to point out that the interference is unjustified.
Abstract: There is of course no simple identification to be made between moral and legal rights, but there is an intimate connection between the two, and this itself is one feature which distinguishes a moral right from other fundamental moral concepts. The words droit, diritto, and Recht, used by continental jurists, have no simple English translation and seem to English jurists to hover uncertainly between law and morals, but they do in fact mark off an area of morality which has special characteristics. In contrast with special rights, which constitute a justification peculiar to the holder of the right for interfering with another's freedom, are general rights, which are asserted defensively, when some unjustified interference is anticipated or threatened, in order to point out that the interference is unjustified. The assertion of general rights directly invokes the principle that all men equally have the right to be free; the assertion of a special right invokes it indirectly.

1,128 citations

Journal ArticleDOI
TL;DR: Waldon as discussed by the authors argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. But, quite apart from the outcomes it generates, judicial review is democratically illegitimate.
Abstract: This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Veronique Munoz-Darde, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks. WALDRON 3/23/2006 6:53:29 PM the core of the case against judicial review

667 citations

Journal ArticleDOI
TL;DR: The authors examine le statut de la neutralite and de l'austerite dans ces deux formes de morale (ou esthetique) and identify le scepticisme externe du scepticism interne.
Abstract: Critique de la version selective du scepticisme archimedien, selon lequel les domaines evaluatifs de l'art et de la moralite ne peuvent fournir de verite objective. Distinguant le scepticisme externe du scepticisme interne, l'A. examine le statut de la neutralite et de l'austerite dans ces deux formes de morale (ou esthetique)

441 citations

Book ChapterDOI
TL;DR: This paper argued that Rawls's attempt to suggest a viable alternative to utilitarianism does not succeed, and argued that A Theory of Justice is the only ethical theory proposing a reasonably clear, systematic, and purportedly rational concept of morality.
Abstract: John Rawls’s A Theory of Justice 1 is an important book. It is an attempt to develop a viable alternative to utilitarianism, which up to now in its various forms was virtually the only ethical theory proposing a reasonably clear, systematic, and purportedly rational concept of morality. I shall argue that Rawls’s attempt to suggest a viable alternative to utilitarianism does not succeed. Nevertheless, beyond any doubt, his book is a significant contribution to the ongoing debate on the nature of rational morality.

383 citations