Research Article
RIGHTS AND RULES:: An Overview
- Matthew D. Adler, Michael C. Dorf
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- Published online by Cambridge University Press:
- 10 February 2001, pp. 241-251
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Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights.
For a flavor of the former view, see Baker v. Carr, 369 U.S. 186, 266–330 (1962) (Frankfurter, J., joined by Harlan, J., dissenting). For the modern view, see id. at 208–37 (opinion of the Court) (holding that an equal protection challenge to state legislative apportionment did not present a political question). 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.See, e.g., Warth v. Seldin, 422 U.S. 490 (1975) (denying standing to low and moderate income plaintiffs claiming that town’s exclusionary zoning practices denied them housing); id. at 519 (“Standing has become a barrier to access to the federal courts, just as ‘the political question’ was in earlier decades.”) (Douglas, J., dissenting). Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that a challenge to the Senate’s use of a committee to hear testimony for judicial impeachment presented a political question); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing to environmentalists suing the Secretary of the Interior to require consultation regarding the environmental impact of overseas projects). 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.
RELIGIOUS LIBERTY AND THE MORAL STRUCTURE OF CONSTITUTIONAL RIGHTS
- Christopher L. Eisgruber, Lawrence G. Sager
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- 10 February 2001, pp. 253-268
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In 1990, in Department of Employment Services v. Smith,
494 U.S. 872 (1990). the Supreme Court announced a new standard to govern Free Exercise claims. The Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens concurring)). Prior to Smith, the Court had applied a test drawn from Sherbert v. Verner.374 U.S. 398 (1963). In Sherbert, the Court had indicated that religiously motivated persons were constitutionally exempt from otherwise valid laws unless the imposition of those laws was necessary to secure “a compelling state interest.”Id. at 403 (internal quotation marks omitted). Although the Court rejected almost every Free Exercise claim raised under Sherbert, the Sherbert standard was—in theory if not in practice—remarkably generous to religiously motivated persons, granting them a presumptive right to disobey laws that thwarted their religious commitments.
THE HETEROGENEITY OF RIGHTS
- Michael C. Dorf
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- 10 February 2001, pp. 269-297
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If there is a constitutional right to R, and a law L by its terms prohibits R, L cannot be validly applied to some person P’s exercise of R. For at least two reasons, however, most cases involving claims of constitutional right are substantially more difficult than this schematic example. First, lawmakers rarely act so brashly as to proscribe rights in so many words.
But see Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (invalidating a ban on all “First Amendment activities” at the main terminal of the Los Angeles International Airport). Second, even facially invalid laws typically include within their sweep much unprotected activity.For example, a law forbidding “prayers or offerings to any god but the Christian God” prohibits, inter alia, involuntary human sacrifice to the Aztec god Huehueteotl, see Johanna Broda et al., THE GREAT TEMPLEOF TENOCHTITLAN 68–70 (1988), which ought to be unprotected even under the broadest reading of the Free Exercise Clause.
RULES AND JUDICIAL REVIEW
- Emily Sherwin
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- 10 February 2001, pp. 299-321
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Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;
See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation.Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).
THE GENERALITY OF RIGHTS
- Frederick Schauer
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- 10 February 2001, pp. 323-336
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Looked at from the perspective of an American constitutionalist, individual rights is a familiar phrase. In its reference to the idea that individuals have rights against the government and against the majority,
See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY 184–205 (1977). the phrase “individual rights” has a meaning that is now relatively well understood. In a different sense, however, the phrase “individual rights” might be taken to suggest that there is something necessarily or essentially individual, and thus particular, about the very idea of a right. Harking back to the Legal Realist positions that, first, a right is nothing more than a statement that a particular individual has an enforceable claim against another particular individual (or entity),See, e.g., Wesley Newcomb Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (Walter Wheeler Cook ed., 1964); Arthur Corbin, Legal Analysis and Terminology, 29 YALE L.J. 165 (1919); Roscoe Pound, Legal Rights, 26 INT’L J. ETHICS 92 (1916); Max Radin, A Restatement of Hohfeld, 51 HARV. L. REV. 1149 (1938). and, second, that a right is simply the ex post statement of the outcome of a particular lawsuit,See John Chipman Gray, THE NATURE AND SOURCES OF LAW (R. Gray ed., 2d ed. 1921); Oliver Wendell Holmes, THE COMMON LAW (1881); William Twining, KARL LLEWELLYN AND THE REALIST MOVEMENT 381 (1973); Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897). The theme is also prominent in the work of the Scandinavian Realists. See, e.g., Axel Hägerström, INQUIRIES INTO THE NATURE OF LAW AND MORALS (1953); A. Villem Lundstedt, LEGAL THINKING REVISED (1956); Karl Olivecrona, LAW AS FACT (2d ed. 1971); Alf Ross, DIRECTIVES AND NORMS (1968); Alf Ross, ON LAW AND JUSTICE (1958); Karl Olivecrona, Legal Language and Reality, in ESSAYS IN HONOR OF ROSCOE POUND 151 (F. Newman ed., 1962); Alf Ross, Tû-tû, 70 HARV. L. REV. 812 (1957). the idea has spread that rights are particular, individual, and contextual. Indeed, a recent article entitled Rights Against Rules: The Moral Structure of American Constitutional Law<Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). announced in its title a conception of rights suggesting that rights are in their nature particular, and are thus to be contrasted with, and counterpoised against, necessarily general rules.