Rights Dynamism

Abstract

Constitutional rights provisions are not isolated and self-contained. To the contrary, they are often intensely relational. As the Supreme Court’s recent marriage equality decision shows, constitutional rights such as due process and equal protection can combine in dynamic ways to create new meanings and new rights. The contemporary meaning of rights is often a product of their dynamic intersection, over long periods of time, with other rights provisions. This Article identifies, describes, and examines the process in which rights intersect with one another and through which constitutional meanings are partially constructed. That process, which the Article calls “Rights Dynamism,” draws upon and complements some existing interpretive methodologies. However, Rights Dynamism is not high – or even low – constitutional theory. Rather, it is a real-world account of how constitutional rights intersect, converse, and conflict with one another and how rights influence one another’s meanings. To explicate Rights Dynamism, the Article examines three illustrative rights relationships – due process and equal protection; freedom of speech and equal protection; and freedom of speech and free exercise of religion. Based on this examination, the Article proposes that we reconsider how constitutional rights are conceptualized, studied, and interpreted. It also proposes and defends a form of rights pluralism in which distinctive, but collaborative, rights enhance constitutional liberty. Finally, the Article identifies additional rights relationships, as well as relationships between rights and structural provisions, that would be worthy of systematic study.

Keywords: rights, freedom of speech, due process, equal protection, dynamic, free exercise