Rules, Rights, Options, and Time
18 Pages Posted: 4 May 2000
Date Written: November 1999
Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act types rather than rule-independent act tokens? Must not its concern for the former be based on its concern for the latter?
The most plausible explanation for the constitutional concern with rules is that most states of affairs are constitutionally optional - neither forbidden nor mandated. By itself, however, that would not justify a concern with rules. The concern with rules must be based additionally on the fact that rules are temporally extended - that although today's application of a rule produces a state of affairs that is constitutionally permissible, over time the rule will likely produce states of affairs that, in conjunction with other rules, are constitutionally forbidden.
That then raises two final questions: (1) What makes the temporal extension of a rule constitutionally problematic if the same states of affairs could be brought about by the legitimate changing of rules? (2) Why should we assume that a rule will be temporally extended and not repealed at the point that its applications become constitutionally problematic?
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