Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law

31 Pages Posted: 13 Mar 2009 Last revised: 29 Jun 2009

Date Written: March 12, 2009

Abstract

Constitutional analysis often contains ambiguity surrounding the word "right" and other legal concepts. The Supreme Court uses the word equivocally to mean a claim, liberty, power, or immunity. The Court also invokes amorphous concepts such as "right of privacy." This article offers an analytical framework to resolve such ambiguity. First, the article explains a canonical theory developed by Professor Wesley Hohfeld to clarify similar ambiguity in private law and shows how Hohfeldian analysis extends to constitutional law. Second, the article applies Hohfeldian analysis to four notable Supreme Court decisions, including Texas v. Johnson and Grutter v. Bollinger, and clarifies the word "right" in each. In sum, this article clarifies the nature of constitutional rights and provides a powerful tool for resolving conceptual ambiguity in constitutional analysis.

Keywords: Constitution, Hohfeld, Legal Relation, Rights

Suggested Citation

O'Rourke, Allen Thomas, Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law (March 12, 2009). South Carolina Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1358336

Allen Thomas O'Rourke (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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