February 1, 2012

The Myth of Rights

Professor Ashutosh Bhagwat's book, The Myth of Rights, has just been issued by the Oxford University Press in paperback.

Book description:
Constitutional rights lie at the heart of American self-identity.  We are a free people, goes the story, and it is our constitutional rights which protect that freedom.  Appealing as it is, however, this story is woefully incomplete.  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.  Rather, the primary purpose and effect of constitutional rights in our society is structural, to restrain governmental power so as to maintain an appropriate 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.

A structural approach towards constitutional rights brings clarity to many difficult constitutional controversies, including 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 discusses 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.  By the end of the book, 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.




2/1/2012 11:56:45 PM #

Although Supreme Court decisions and cases are pretty self explanatory, as is the Constitution itself, many politicians still do not understand that the 2nd Amendment is an Individual Right. Take Anthony Portantino for example, who keeps trying to pass more "Gun Control" laws in the state of California.

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