Why Rights are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism
Posted: 18 Sep 1998
In the conventional view of much political philosophy and constitutional theory, constitutional rights are conceived as trumps through which individualistic interests take priority over democratic judgments concerning the common good. This view reasons outward from conceptions of the person to define the rights necessary to protect individualistic interests in autonomy, or dignity, or liberty, or personhood. Both defenders and critics of "liberal rights-oriented constitutionalism" typically share this conception of constitutional rights. In contrast, this article argues that, in the actual practice of American constitutionalism, rights are best described as functioning in a different way. Rights are linguistic tools the law uses to define the differentiation between various institutional domains of authority. Rather than protecting atomistic interests against appeals to the common good, rights enable the creation of various common goods or institutional structures: the distinct spheres of public education, and electoral politics, and religion, and many others. Much emerging scholarship in specific fields of constitutional law can be synthesized through this more general re-conception of constitutional rights practice. A number of implications follow, including the proper role of governmental purposes in rights adjudication, the irrelevance of balancing rhetoric, the relationship between rights and democratic politics, and more generally, the way liberal political theory and rights-oriented constitutionalism are understood.
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