The relationship between obligations and rights of citizens

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1721-1751

  Eskridge Jr , William N ^a  

^a NONE

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EID: 0035629435     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (40)

1. U.S. Const, amend. XIV, § 1 (emphasis added).
2. I am using the term rights broadly, but only as mediating the relationship between a person and the state or the community. Person A has a right if the state (or community) is precluded from narrowing A's choices or affecting his interests in some other way, unless there is some special justification for doing so. See, e.g., Ronald Dworkin, Taking Rights Seriously 91-93, 189-91 (1977). Contrast an obligation. Person A has an obligation if she must narrow her choices or sacrifice her interests in some other way to serve the state (or community), unless there is some special justification for not doing so.
3. Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion 193-94 (1993) (analyzing Planned Parenthood v. Casey, 505 U.S. 833 (1992), an abortion case whose holding was rooted in the due process clause); see also Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution 201-06, 227 (1989); Kenneth L. Karst, The Supreme Court, 1976 Term-Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 5-11 (1977).
4. Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion 193-94 (1993) (analyzing Planned Parenthood v. Casey, 505 U.S. 833 (1992), an abortion case whose holding was rooted in the due process clause); see also Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution 201-06, 227 (1989); Kenneth L. Karst, The Supreme Court, 1976 Term-Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 5-11 (1977).
5. Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion 193-94 (1993) (analyzing Planned Parenthood v. Casey, 505 U.S. 833 (1992), an abortion case whose holding was rooted in the due process clause); see also Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution 201-06, 227 (1989); Kenneth L. Karst, The Supreme Court, 1976 Term-Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 5-11 (1977).
6. See Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & Religion 65, 68-69 (1987); Susan P. Koniak, Through the Looking Glass of Ethics and the Wrong with Rights We Find There, 9 Geo. J. Legal Ethics 1, 21-30 (1995).
7. See Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & Religion 65, 68-69 (1987); Susan P. Koniak, Through the Looking Glass of Ethics and the Wrong with Rights We Find There, 9 Geo. J. Legal Ethics 1, 21-30 (1995).
8. Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy 201-49 (1996); see also Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy (Anita L. Allen & Milton C. Regan, Jr. eds., 1998) (offering various scholars' commentary on Sandel's work).
9. Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy 201-49 (1996); see also Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy (Anita L. Allen & Milton C. Regan, Jr. eds., 1998) (offering various scholars' commentary on Sandel's work).
10. 1 Francis Lieber, Manual of Political Ethics 383-411 (Theodore D. Woolsey ed., 2d ed. rev. 1911) (1838).
11. Id.
12. Id. at 383.
13. Id. at 383-84.
14. Cf. id. at 145, 150, 384 n.1 (making various references to the mutuality and reciprocity of rights guaranteed by the state).
15. Cf. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30-32 (1913) (positing a theory of "jural opposites" under which a right for A entails an obligation for B).
16. 2 Lieber, supra note 6, at 149; see also l Lieber, supra note 6, at 401-02 (stating that every citizen owes duties of "justice" to other citizens; even if not required by law, one must give one's colleague his "due").
17. This meaning is based on my reading of the Manual and on the burgeoning Lieber scholarship, notably the Cardozo Law Review symposium on his Legal and Political Hermeneutics, see Michael Herz, Rediscovering Francis Lieber: An Afterword and Introduction, 16 Cardozo L. Rev. 2107 (1995), as well as Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. Rev. 1501, 1515-24 (1997), especially her meticulous link between Lieber's theory and Hegel's.
18. This meaning is based on my reading of the Manual and on the burgeoning Lieber scholarship, notably the Cardozo Law Review symposium on his Legal and Political Hermeneutics, see Michael Herz, Rediscovering Francis Lieber: An Afterword and Introduction, 16 Cardozo L. Rev. 2107 (1995), as well as Maura I. Strassberg, Distinctions of Form or Substance: Monogamy, Polygamy and Same-Sex Marriage, 75 N.C. L. Rev. 1501, 1515-24 (1997), especially her meticulous link between Lieber's theory and Hegel's.
19. U.S. Const, art. II, § 1, cl. 5.
20. Id. art. IV, § 2, cl. 1.
21. Id. art. III, § 2, cl. 1. Various other heads of jurisdiction also rely on citizenship of states or foreign states. Nowhere does Article III speak explicitly of national citizenship.
22. 60 U.S. 393 (1857). See generally Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978).
23. 60 U.S. 393 (1857). See generally Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978).
24. Dred Scott, 60 U.S. at 396-99, 400.
25. Id. at 403.
26. Id. at 406.
27. Id. at 420.
28. Cf. An Act to Establish An Uniform Rule of Naturalization, ch. 3, 1 Stat. 103 (1790) (America's first naturalization law, providing that "any alien, being a free white person," might be naturalized).
29. Dred Scott, 60 U.S. at 420. Taney therefore created as a baseline presumption "the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure." Id.
30. Id. (quotation omitted).
31. Id.; see also id. at 420-21 (noting an 1813 law, 2 Stat. 809, providing that U.S. ships could only employ "citizens of the United States, or persons of color," and an 1820 law authorizing the District of Columbia's government to enact special legislation for disorderly conduct by "slaves, free negroes, and mulattoes"). Taney stated: "This law, like the laws of the States, shows this class of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens." Id. at 421.
32. See Naturalization Act of 1870, ch. 254, § 7, 16 Stat. 254 (1870) (opening naturalization to "aliens of African nativity and to persons of African descent").
33. Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893); The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). These cases are discussed in Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 298-311 (1993) (volume VIII of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States).
34. Fong Yue Ting v. United States, 149 U.S. 698, 724 (1893); The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). These cases are discussed in Owen M. Fiss, Troubled Beginnings of the Modern State, 1888-1910, at 298-311 (1993) (volume VIII of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States).
35. 169 U.S. 649 (1898).
36. Justice Horace Gray's learned opinion looked to the common law, international practice, and constitutional history to resolve the unsettled issue, discussed in Minor v. Happersett, 88 U.S. 162, 167 (1874), whether people born in the United States were citizens even though their parents were not. Wong Kim Ark, 169 U.S. at 654-58.
37. Wong Kim Ark, 169 U.S. at 704-05.
38. U.S. Const, amend. XIV, § 1 (emphasis added). The first time citizens are so identified is the presidential qualifications clause, id. art. II, § 1, cl. 4, the second is the citizenship clause discussed above. See supra text accompanying notes 1, 14.
39. On the citizenship clause generally, see Akhil Reed Amar, The Bill of Rights 181-87 (1998).
40. 83 U.S. 36 (1873).