Rights and Rules
12 Pages Posted: 21 Feb 2013
Date Written: September 1, 2000
Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making, in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional justiciability doctrines, scholars have only recently begun to address the range of questions implicated by the Court’s approach to the relation between constitutional rights and challenged legal rules — and they have generally focused on narrow doctrinal questions about the proper treatment of discrete rights such as abortion, free exercise of religion, and freedom of speech. The papers in this issue of Legal Theory and the next view these issues in a broader jurisprudential context.
Keywords: Article III, constitutional rights, challenged legal rules, statutory right, moral right
Suggested Citation: Suggested Citation