The Nature of Constitutional Rights
The Nature of Constitutional Rights
What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.
- Offers a fresh perspective on constitutional law and constitutional debates by focusing on the question of what it means to have a constitutional right when rights must often yield to 'compelling governmental interests'
- Provides an account of rights as 'constraints' on governmental discretion, not absolute 'privileges'
- Combines historical, doctrinal, and philosophical perspectives to clarify what the Supreme Court does in defining and enforcing 'constitutional rights'
Reviews & endorsements
‘Professor Richard H. Fallon, Jr provides a rich and sophisticated treatment of one of the great questions of American constitutional law. Drawing on analysis of history, doctrine, and conceptual foundations, he offers a rigorous and thought-provoking account of how rights are protected.' Randy J. Kozel, Diane and M. O. Miller, II Research Professor of Law, University of Notre Dame
‘Professor Richard H. Fallon, Jr's analysis of the intervention and logic of strict scrutiny is simply the best I have seen. This is a professional book for professionals. It should be read and mastered by all of us who teach constitutional law to both law students and undergraduates, and by all of us who write on constitutional rights. Strict scrutiny is central to the constitutional enterprise and this is the best study of that doctrine.' Mark A. Graber, Regents Professor, University of Maryland Francis King Carey School of Law
‘The US Constitution protects freedom of speech, equal protection of the laws, and various other rights without specifying the circumstances under which government may lawfully infringe them. In this theoretically sophisticated and engaging book, Professor Fallon, Jr explores how and why the strict scrutiny test emerged to fill that gap and, in the process, shaped American understandings of judicial review and constitutional rights themselves.' Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
Product details
April 2019Hardback
9781108483261
220 pages
235 × 156 × 16 mm
0.44kg
Available
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Table of Contents
- 1. The historical emergence of strict judicial scrutiny
- 2. Strict scrutiny as an incompletely theorized agreement
- 3. Rights and interests
- 4. Tests besides strict scrutiny and the nature of the rights that they protect
- 5. Legislative intent and deliberative rights
- 6. Rights, remedies, and justiciability
- 7. The core of an uneasy case for judicial review.
