The Negative Constitution: A Critique
77 Pages Posted: 23 Aug 2008
Date Written: August 20, 1990
In the conventional wisdom, the Constitution is a charter of negative liberties. Governmental inaction is not actionable. The due process clause grants no affirmative rights. These phrases are meant to signal the end of discussion. Yet when conclusory incantations permit harm to flourish unchecked, they ought to be scrutinized with care. This article undertakes that scrutiny. Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.
Keywords: negative liberty, positive rights, DeShaney, affirmative obligations
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