‹ Philosophy & Public Affairs 36 (1), Winter 2008 •
Here’s a quick question I have about teaching jurisprudence. There’s an interesting literature on the nature of rights that will be familiar to many people, and I think it is a good thing for undergraduate jurisprudence students to be exposed to it. However, in addition to reading Hohfeld, Hart, Raz, and some others, one might wish that they had an easy way to apply the complexity of rights theory to their interpretations of the Bill of Rights (we’re talking about US students here), otherwise we lose a bit of traction with the kind of law that interests them most. As such, I want to start gathering suggestions for good readings on how papers such as “The Nature of Rights,” illuminate the constitutional right to free speech or the constitutional right to bear arms, etc. In short, what’s the best way to demonstrate to my students that wading through all that conceptual analysis can make a difference to how they think about their constitution? I’m sure there are some obvious readings, but I thought I would draw on the wisdom of those who have found particular papers fitting this bill useful and enjoyable to teach.
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1 - Friday, 18 April 2008 at 7:29 am
Ben Saunders
I’ve only read a bit of it, but would Dworkin’s Freedom’s Law be the kind of thing you’re after? I can’t really remember how much of it is simply the more practical debate about the constitution (arguing with people like MacKinnon and Fiss) and how much it really draws on the abstract debate about the nature of rights though.
2 - Friday, 18 April 2008 at 12:20 pm
Loren King
Back in grad school I was a TA for Joshua Cohen’s undergraduate course on justice, which would pair classic texts in political philosophy with pivotal supreme court cases (Mill’s On Liberty with Bowers v. Hardwick, Nozick and Friedman with Lochner and West Coast Hotel v. Parrish, Dworkin on equality with San Antonio v. Rodriquez and Bakke). Looking back, I think the coolness of that design might not have been fully (at all?) apparent to sullen engineers looking for a humanities requirement, but seems to me it would be a very cool way to teach students interested in jurisprudence about how theory can help them think about US constitutional law.
3 - Friday, 18 April 2008 at 2:28 pm
Simon Cabulea May
Hi Ben — I usually use Freedom’s Law for the introduction on majoritarianism, contrasting it with Waldron on majoritarianism and judicial review. The chapters on abortion are also texts that can be used. But I don’t know if they really demonstrate how analytical work on the nature of rights can be brought to bear on the understanding of constitutional rights. What I’m looking for is something a bit more technical, so that when students argue about what rights the constitution contains or what the rights in the constitution involve, they can do so in a way that is more than just the usual political argument about which values it is important to protect. They could do that without having read, for example, Raz on core and derivative rights. But that reading might be useful for them in thinking about e.g. Griswold and the penumbra of constitutional rights. Or if it isn’t useful, it may be useful to see why not.
Hi Loren — what I am looking for is something that does allow the use of particular SCOTUS cases as stamping grounds for philosophical argument, as in that course, e.g. Griswold. However the kind of argument that I’m looking for is not so much one that pits moral theories of justice against each other, as one that explores the logic of rights in a constitutional context. For instance, if I ask them to read e.g. Waldron on conflicts of rights, how might they then think about conflicts of constitutional rights in a more sophisticated manner?
4 - Friday, 18 April 2008 at 2:46 pm
Eric Mitnick
Simon,
A start might be Hart’s essay, “Are There Any Natural Rights?” At a minimum, the distinction between general and special rights that Hart draws in that essay could be used to help the students begin to think through the nature of constitutional rights in analytical terms.
Best,
Eric
5 - Friday, 18 April 2008 at 3:32 pm
Matt Lister
Two books that might be worth considering are Bill Edmundson’s An Introduction to Rights and Lacey and Haakonssen’s A Culture of Rights: The Bill of Rights in Philosophy, Politics and Law 1791 and 1991. On the later it might be better to just use some of the articles rather than the whole book, though some of them are good and right on topic.
6 - Friday, 18 April 2008 at 3:51 pm
Simon Cabulea May
Hi Eric and Matt — I do use the Hart as it is a pretty seminal paper, so that would be a basis for them to think about rights. I also like Bill Edmundson’s book, especially the chapters on Hohfeld and the choice vs. interest theories. So that would be a resource for them. However, it is not extensively engaged with applying the philosophical analysis to various constitutional cases. So it’s a good place for them to start but I’d also like to add, e.g., papers that assess judicial reasoning about rights in terms of the philosophical analysis of what rights are. I didn’t know the Lacey and Haakonssen book, so I’ll check that out, thanks.
7 - Friday, 18 April 2008 at 10:23 pm
Patrick S. O'Donnell
Although it is not exactly what you’re asking for, a good book to consult is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998)
8 - Saturday, 19 April 2008 at 1:58 am
Gordon Hull
I don’t know how this would mesh with your more theoretical readings, but try:
Jack Balkin, “Digital Speech and Democratic Culture,” NYR Law Review (2004), at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=470842
The paper basically says that the changing material conditions in which people speak and produce speech (= widespread digitization) means that we should interpret the first amendment along substantive (rather than formal) lines; he explicitly talks about the policy advantages and disadvantages of a Mill/Miekeljohn oriented theory of the First Amendment.
Along similar lines,
Yochai Benkler, “Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain,” Law and Contemporary Problems (2003), at: http://www.law.duke.edu/shell/cite.pl?66 Law & Contemp. Probs. 173 (WinterSpring 2003)
Benkler talks about how differing interpretations of the relationship between the First Amendment and Copyright (Article I, Sec. 8 ) clauses support different interpretations of autonomy and democracy. I think the speech/copyright intersection is a particularly interesting one in this context, since (a) copyright is so theoretically difficult in the first place; (b) property rights of exclusion in information seem to pull in the opposite direction from the First Amendment; and (c ) nonetheless (as I tell my students) Constitutional interpretation is like Biblical interpretation: the text has to be made to cohere as a whole (the usual trick for these two clauses is to say that term limits and fair use take care of the First Amendment; Benkler includes a decent discussion of intermediate scrutiny, if memory serves).
Anyway, don’t know if that’s exactly what you’re looking for, but they’re both good papers.
Another book which is pretty interesting is Mark Graber, Dred Scott and the Problem of Constitutional Evil. It argues that, contrary to received wisdom, Dred Scott was a decent decision by any reasonable standard of judicial interpretation - the problem was that the Constitutional text basically incorporated a decision to allow slavery, even though many of the founders thought it was evil, in order to get the union off the ground in the first place. I haven’t figured out how to operationalize it in teaching, but I’m sure one could somehow…
If you find the technology line interesting, I could generate more cites.
Finally, Fisher has a piece in the Munzer ed. New Essays in the Legal and Political Theory of Property (CUP, 2001) that says the available normative theories of intellectual property underdetermine policy.
cheers,
gordon
9 - Sunday, 20 April 2008 at 1:38 pm
Simon Cabulea May
Thanks Patrick and Gordon — I know the Amar book but not the other references, so I’ll take a look at those.
10 - Monday, 21 April 2008 at 3:32 pm
Micah Schwartzman
My hunch is that you’ll be better off looking for articles analyzing specific rights. For example, Glenn Cohen has a forthcoming paper entitled, “The Constitution and the Rights Not to Procreate” (available here), which takes apart various rights that tend to be run together into a more general right not to procreate. The article shows that careful attention to the nature of the right(s), and the doctrine developing it, can be very useful in understanding the direction of the law. Another example might be Leif Wenar, “The Concept of Property and the Takings Clause,” 97 Colum. L. Rev. 1923 (1997).
11 - Monday, 21 April 2008 at 6:34 pm
Simon Cabulea May
Thanks Micah — I’ll look at both of those references. Sensitivity to the philosophical analysis of the nature of rights is pretty much what I am looking for in some or other legal context, so discussions of particular rights would be just the thing.