The Myth of Rights The Purposes and Limits of Constitutional Rights

by Bhagwat, Ashutosh

• ISBN13: 9780195377781
• ISBN10: 0195377788
• Format: Hardcover
• Copyright: 2010-03-10
• Publisher: Oxford University Press

Summary

What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases - i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in our society is structural. These rights restrain governmental power in order to maintain a balance between citizens and the State, and an appropriately limited role for the State in our society. Of course, restricting governmental power does have the effect of advancing individual autonomy, but that is not the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed. Professor Bhagwat brings clarity to many difficult controversies with a structural approach towards constitutional rights. Issues discussed include flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the second Bush Administration. The Myth of Rights addresses the constitutional issues posed in these and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot. Readers will understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.

Author Biography

Ashutosh Bhagwat is Professor of Law at the University of California, Hastings College of the Law. He is a graduate of Yale College and the University of Chicago Law School. After law school, he served as a law clerk to Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, and then for Associate Justice Anthony M. Kennedy of the United States Supreme Court. He has published many scholarly articles on subjects ranging from constitutional law to administrative law to the California Electricity Crisis. He lives in Moraga, California with his wife and two children.

Table of Contents

Acknowledgments	p. xi
The Myth of Rights: Of Aliens, Corporations, and Guns	p. 1
State Action and Positive Rights	p. 5
The Rights of Corporations and Aliens	p. 10
The Second Amendment	p. 15
The Nature of Rights: A Theoretical and Historical Overview	p. 23
The Popular View of Rights	p. 23
Rights as Trumps	p. 24
Criminal Procedure and Rights as Trumps	p. 25
Other Theories of Rights	p. 26
Rights During the Founding Period: Collective versus Individual Rights	p. 30
Constitutional Rights and the Structure of Government	p. 37
Constitutional Structure and Constitutional Rights	p. 37
The Structural Bill of Rights: A First Look	p. 41
The Civil War and the Revolutionary Fourteenth Amendment	p. 50
How Constitutional Rights Limit Governmental Power	p. 59
Limits on Power	p. 59
Actions and Purposes	p. 64
Illegitimate Purposes	p. 67
Direct Intrusions and Limited Purposes	p. 69
Incidental Burdens and Balancing	p. 73
Democracy, Constitutionalism, and Judicial Legitimacy	p. 75
Free Speech and Self-Governance	p. 79
Theories of Free Speech	p. 79
Self-Governance and Resistance	p. 81
Anti-Orthodoxy: Of Flags, Communists, and Racists	p. 83
The Mass Media: Enhancing Speech Through Regulation	p. 96
Incidental Burdens on Speech and the Speech/Conduct Distinction	p. 105
The Government as Speaker, Employer, and Owner	p. 107
Regulating Private Speech	p. 113
Regulating the Political Process	p. 115
The Religion Clauses: Reconciling Accommodation and Separation	p. 121
Free Exercise and the Question of Mandatory Accommodation	p. 124
The Establishment Clause-Voluntary Accommodation and School Prayer	p. 134
Property Rights and Economic Regulation	p. 151
The Importance of Economic Rights	p. 151
Searches and Seizures	p. 155
The Contracts Clause	p. 156
Takings: The Kelo Case and the Problem of Public Use	p. 160
Regulatory Takings	p. 164
Racial Discrimination and Affirmative Action: The Meaning of Equal Protection	p. 173
Segregation and Racial Discrimination	p. 180
Affirmative Action	p. 190
Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics: Translating Equal Protection	p. 205
Sex Discrimination	p. 206
Sexual Orientation	p. 215
Age, Disability, and Other Irrelevant Characteristics	p. 221
The Nontextual Constitution: Privacy and Other Unenumerated Rights	p. 225
The Historic Evolution of the Nontextual Constitution	p. 227
The Death of Natural Law and the Failure of Consensus	p. 240
A Structural Approach to the Unwritten Constitution	p. 245
Evolving Privacy and Due Process	p. 253
Same-Sex Marriage and Abortion	p. 256
Structural Rights and the War on Terror	p. 261
The Problem of Presidential Power-Torture and Wiretapping	p. 269
Enemy Combatants-Yaser Hamdi, Jose Padilla, and Ali Al-Marri	p. 276
Enemy Combatants-Guantanamo Bay	p. 283
Index	p. 289
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