Personal Rights and Rule Dependence: Can the Two Co-Exist?
95 Pages Posted: 19 Oct 2000
Date Written: October 1999
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant whose personal rights are not violated by that action (with a special exception for those unusual cases where the "personal rights" requirement is set aside, such as First Amendment overbreadth cases). In this Article, I argue that rule-dependence and the personal rights requirement - these two familiar features of modern constitutional law - are inconsistent. If the purpose of constitutional adjudication were really to vindicate the personal rights of litigants, constitutional doctrine would not be rule-dependent in the way I have just described. (This is true, I claim, on any plausible conception of a "personal right.") Further, I suggest that the tension between rule-dependence and personal rights should be resolved by abandoning the personal rights requirement. Constitutional courts should be seen as oversight bodies whose task is to repeal or amend legal rules that violate constitutional norms; and litigants should be seen as the "private attorneys general" who initiate the enforcement of these norms.
This paper is an extension of arguments first presented in my article "Rights Against Rules: The Moral Structure of American Constitutional Law," 97 Michigan Law Review 1 (1998).
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