Rights, capabilities, and the good society

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1901-1931

  West, Robin ^a  

^a NONE

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EID: 0035629436     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (101)

1. See Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996) [hereinafter Sandel, Democracy's Discontent].
2. Id. at 124-28, 329-38.
3. See, e.g., Frank I. Michelman, Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter, Michelman, Constitutional Welfare Rights]; Frank I. Michelman, The Supreme Court 1968 Term- Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969) [hereinafter Michelman, On Protecting the Poor]. The welfarist conception is heavily indebted to John Rawls' early work, particularly A Theory of Justice (1971).
4. See, e.g., Frank I. Michelman, Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter, Michelman, Constitutional Welfare Rights]; Frank I. Michelman, The Supreme Court 1968 Term-Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969) [hereinafter Michelman, On Protecting the Poor]. The welfarist conception is heavily indebted to John Rawls' early work, particularly A Theory of Justice (1971).
5. See, e.g., Frank I. Michelman, Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter, Michelman, Constitutional Welfare Rights]; Frank I. Michelman, The Supreme Court 1968 Term- Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969) [hereinafter Michelman, On Protecting the Poor]. The welfarist conception is heavily indebted to John Rawls' early work, particularly A Theory of Justice (1971).
6. See e.g., Sandel, Democracy's Discontent, supra note 1, at 330-32.
7. See e.g., Michelman, On Protecting the Poor, supra note 3, at 13-14.
8. Id. at 13-15.
9. Id.
10. See Martha Nussbaum, Women and Human Development 11-15, 111-61 (2000) [hereinafter Nussbaum, Women and Human Development]; Amartya Sen, Rights as Goals, in Equality and Discrimination: Essays in Freedom and Justice 14-19 (Stephen Guest & Alan Milne eds., 1985).
11. See Martha Nussbaum, Women and Human Development 11-15, 111-61 (2000) [hereinafter Nussbaum, Women and Human Development]; Amartya Sen, Rights as Goals, in Equality and Discrimination: Essays in Freedom and Justice 14-19 (Stephen Guest & Alan Milne eds., 1985).
12. Nussbaum, Women and Human Development, supra note 8, at 51-60, 81; Sen, supra note 8, at 15-16.
13. Nussbaum, Women and Human Development, supra note 8, at 75-83; Sen, supra note 8, at 16.
14. Nussbaum, Women and Human Development, supra note 8, at 75-83.
15. Id.
16. Id.; Sen, supra note 8, at 15-16.
17. Nussbaum, Women and Human Development, supra note 8, at 86-87.
18. Id. at 54-55, 91.
19. Id. at 74-75, 89-90.
20. Id.
21. Id. at 74.
22. See Sen, supra note 8, at 11, 19. Nussbaum is more ambivalent. Although she has addressed the relationship between capabilities approaches to liberalism and human rights, and has elsewhere described the obligation of states to provide for minimal capabilities as "constitutional," she does not directly argue that citizens in liberal states have a constitutional right to the minimal material conditions of fundamental human capabilities. See Martha C. Nussbaum, Capabilities and Human Rights, 66 Fordham L. Rev. 273, 287-88 (1997); see also Nussbaum, Women and Human Development, supra note 8, at 97-101.
23. See Sen, supra note 8, at 11, 19. Nussbaum is more ambivalent. Although she has addressed the relationship between capabilities approaches to liberalism and human rights, and has elsewhere described the obligation of states to provide for minimal capabilities as "constitutional," she does not directly argue that citizens in liberal states have a constitutional right to the minimal material conditions of fundamental human capabilities. See Martha C. Nussbaum, Capabilities and Human Rights, 66 Fordham L. Rev. 273, 287-88 (1997); see also Nussbaum, Women and Human Development, supra note 8, at 97-101.
24. See, e.g., Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 295 (1985).
25. For a sampling of the voluminous literature criticizing rights on these and related grounds, see, e.g., Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 454 (1992); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1595-97 (1984); Morton J. Horwitz, Rights, 23 Harv. C.R.-C.L. L. Rev. 393, 402-04 (1988); Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1386-92 (1984).
26. For a sampling of the voluminous literature criticizing rights on these and related grounds, see, e.g., Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 454 (1992); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1595-97 (1984); Morton J. Horwitz, Rights, 23 Harv. C.R.-C.L. L. Rev. 393, 402-04 (1988); Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1386-92 (1984).
27. For a sampling of the voluminous literature criticizing rights on these and related grounds, see, e.g., Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 454 (1992); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1595-97 (1984); Morton J. Horwitz, Rights, 23 Harv. C.R.-C.L. L. Rev. 393, 402-04 (1988); Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1386-92 (1984).
28. For a sampling of the voluminous literature criticizing rights on these and related grounds, see, e.g., Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 454 (1992); Peter Gabel, The Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, 62 Tex. L. Rev. 1563, 1595-97 (1984); Morton J. Horwitz, Rights, 23 Harv. C.R.-C.L. L. Rev. 393, 402-04 (1988); Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363, 1386-92 (1984).
29. William A. Galston, Political Economy and the Politics of Virtue: U.S. Public Philosophy at Century's End, in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 63, 74-77 (Anita L. Allen & Milton C. Regan, Jr. eds., 1998).
30. Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 70 (1999).
31. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
32. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
33. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
34. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
35. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
36. Most famously, of course, Rawls argued that liberal states are obligated to redistribute toward equality up to the point where remaining inequalities benefit the least well off. John Rawls, A Theory of Justice 100-02 (1971); see also Nussbaum, Women and Human Development, supra note 8, at 55, 91-95, 105 (comparing redistributive measures in India and the United States); Sandel, Democracy's Discontent, supra note 1, at 255-56 (discussing Franklin D. Rooselvelt's tax proposals of 1935); William E. Forbath, Caste, Class, and Equal Citizenship, 98 Mich. L. Rev. 1, 8 (1999) (reviewing the legal arguments regarding redistributive rights and remedies); Michelman, Constitutional Welfare Rights, supra note 3, at 966 (discussing "specific welfare guaranty"); Michelman, On Protecting the Poor, supra note 3, at 9 (discussing "minimum welfare").
37. See, e.g., Epstein, supra note 20, at 337-38; Robert Nozick, Anarchy, State, and Utopia 26-53 (1974). See generally, Horwitz, supra note 21 (discussing the concept of constitutional rights as developed by the courts since the 1930s).
38. Ronald Dworkin, Taking Rights Seriously vii-xv, 184-205 (1977) [hereinafter Dworkin, Taking Rights Seriously].
39. Dworkin suggests as much. See id. at 193.
40. See id. at 180-83, 272-78; Nussbaum, Women and Human Development, supra note 8, at 73.
41. See, e.g., Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37, 39 (1990); Elizabeth B. Clark, Religion, Rights, and Difference in the Early Woman's Rights Movement, 3 Wis. Women's L.J. 29, 46-53 (1987); Forbath, supra note 24, at 4-5.
42. See, e.g., Akhil Reed Amar, Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 Harv. J.L. & Pub. Pol'y 37, 39 (1990); Elizabeth B. Clark, Religion, Rights, and Difference in the Early Woman's Rights Movement, 3 Wis. Women's L.J. 29, 46-53 (1987); Forbath, supra note 24, at 4-5.
43. See Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. Chi. L. Rev. 519, 521, 523-30 (1992).
44. Thomas Hobbes, Leviathan 165 (J.M. Dent & Sons Ltd. 1928) (1651).
45. Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J. 507, 508 (1991).
46. Epstein, supra note 20, at 7-10.
47. Id. at 7-15.
48. See id.
49. John Locke, An Essay Concerning the True Original, Extent and End of Civil Government §§ 128-31 (Henry Regnery Co. 1949) (1690).
50. Id.
51. See John Dewey, Liberalism and Social Action (Capricorn Books 1963) (1935); John Stuart Mill, Utilitarianism, in Utilitarianism, Liberty and Representative Government 66-67 (E.P. Dutton & Co. 1950) (1863).
52. See John Dewey, Liberalism and Social Action (Capricorn Books 1963) (1935); John Stuart Mill, Utilitarianism, in Utilitarianism, Liberty and Representative Government 66-67 (E.P. Dutton & Co. 1950) (1863).
53. Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 123-24, 164-65, 169 (1969).
54. Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271, 2308-27 (1990); Heyman, supra note 32, at 526.
55. The clearest explication of this mistaken conception is found in Judge Posner's decision in Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). The opinion states, "The Constitution is a charter of negative liberties; it tells the state to let people alone." Id. Tribe makes the same criticism of this view as is found in this essay. Laurence H. Tribe, Constitutional Choices 247 (1985).
56. The clearest explication of this mistaken conception is found in Judge Posner's decision in Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). The opinion states, "The Constitution is a charter of negative liberties; it tells the state to let people alone." Id. Tribe makes the same criticism of this view as is found in this essay. Laurence H. Tribe, Constitutional Choices 247 (1985).
57. See Jacobus TenBroek, Equal Under Law 57-58 (First Collier Books 1965) (1951).
58. See Sandel, Democracy's Discontent, supra note 1, at 16-17; Gabel, supra note 21, at 1572-76; Glendon, supra note 30, at 520-23; Michael J. Sandel, The Constitution of the Procedural Republic: Liberal Rights and Civic Virtues, 66 Fordham L. Rev. 1, 4- 6 (1997) [hereinafter, Sandel, Constitution of the Procedural Republic]; Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521, 523-25 (1989) [hereinafter Sandel, Moral Argument and Liberal Toleration].
59. See Sandel, Democracy's Discontent, supra note 1, at 16-17; Gabel, supra note 21, at 1572-76; Glendon, supra note 30, at 520-23; Michael J. Sandel, The Constitution of the Procedural Republic: Liberal Rights and Civic Virtues, 66 Fordham L. Rev. 1, 4-6 (1997) [hereinafter, Sandel, Constitution of the Procedural Republic]; Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521, 523-25 (1989) [hereinafter Sandel, Moral Argument and Liberal Toleration].
60. See Sandel, Democracy's Discontent, supra note 1, at 16-17; Gabel, supra note 21, at 1572-76; Glendon, supra note 30, at 520-23; Michael J. Sandel, The Constitution of the Procedural Republic: Liberal Rights and Civic Virtues, 66 Fordham L. Rev. 1, 4- 6 (1997) [hereinafter, Sandel, Constitution of the Procedural Republic]; Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 Cal. L. Rev. 521, 523-25 (1989) [hereinafter Sandel, Moral Argument and Liberal Toleration].
61. Nussbaum, Women and Human Development, supra note 8, at 79.
62. Id.
63. Sandel draws out the implications of this connection most clearly. See Sandel, Democracy's Discontent, supra note 1, at 25-54; Michael Sandel, A Reply to Critics, in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 319, 319-23 (Anita L. Allen & Milton C. Regan, Jr. eds., 1998) [hereinafter Sandel, A Reply to Critics].
64. Sandel draws out the implications of this connection most clearly. See Sandel, Democracy's Discontent, supra note 1, at 25-54; Michael Sandel, A Reply to Critics, in Debating Democracy's Discontent: Essays on American Politics, Law, and Public Philosophy 319, 319-23 (Anita L. Allen & Milton C. Regan, Jr. eds., 1998) [hereinafter Sandel, A Reply to Critics].
65. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
66. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
67. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
68. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
69. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
70. See generally Dworkin, Taking Rights Seriously, supra note 26 (arguing that rights derive from membership in the human community and the concept of political equality). A serious regard for rights, Dworkin argues, rests on "the vague but powerful idea of human dignity. . . [which] supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust." Id. at 198. H.L.A. Hart and others have noted that Dworkin does not specify a sufficiently thick view of human nature to sustain a strong case for any particular set of rights, thus distinguishing him from classical liberal rights theorists such as Mill. See H.L.A. Hart, Between Utility and Rights, in Ronald Dworkin and Contemporary Jurisprudence 214, 218 (Marshall Cohen ed., 1983). Nevertheless, Dworkin directly rests his defense of the idea of rights itself on an appeal to a conception of human life, which he himself labels "Kantian," and from which the basic rights to equal concern and respect are directly derived. Dworkin, Taking Rights Seriously, supra note 26, at 198-99. For further examples of rights arguments that rely to varying degrees on specified accounts of human nature, see, e.g., Laurence H. Tribe, American Constitutional Law 1302-08 (2d ed. 1988); Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs., 83 Summer 1980; David A. J. Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 Hastings L.J. 957, 964-72 (1979).
71. Gabel, Tushnet, and Horwitz all insisted on the contingency rather than the necessity of rights' negativity and atomism. See Gabel, supra note 21, at 1586-90; Horwitz, supra note 21, at 404-06; Tushnet, supra note 21, at 1379-80.
72. See Horwitz, supra note 21, at 399-400; Tushnet, supra note 21, at 1386-94.
73. Gabel, supra note 21, at 1566-71.
74. Horwitz, supra note 21, at 396-99; Tushnet, supra note 21, at 1371-84.
75. Others have criticized Roe on these grounds. See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and the Law 99-101 (1987); Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent 46-48 (1996); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-24 (1991).
76. Others have criticized Roe on these grounds. See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and the Law 99-101 (1987); Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent 46-48 (1996); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-24 (1991).
77. Others have criticized Roe on these grounds. See Catharine MacKinnon, Feminism Unmodified: Discourses on Life and the Law 99-101 (1987); Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent 46-48 (1996); Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1308-24 (1991).
78. See generally, Cass R. Sunstein, Democracy and the Problem of Free Speech (1993) (suggesting a reassessment of the guarantee of free speech in light of current trends and developments).
79. Michelman, Constitutional Welfare Rights, supra note 3; Michelman, On Protecting the Poor, supra note 3.
80. Michelman, Constitutional Welfare Rights, supra note 3; Michelman, On Protecting the Poor, supra note 3.
81. United States v. Emerson, 46 F. Supp. 2d 598, 610-11 (N.D. Tex. 1999).
82. Id. at 600.
83. Id. at 609-10.
84. Nussbaum, Women and Human Development, supra note 8, at 111-66.
85. See Heyman, supra note 32, at 530-45.
86. See Randall L. Kennedy, McClesky v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1421-29 (1988).
87. See Kittay, supra note 23, at 132.
88. For a sustained argument to this effect, see generally id., at 132-46.
89. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7 U.S.C., 8 U.S.C., 21 U.S.C., 25 U.S.C. and 42 U.S.C.).
90. 29 U.S.C. § 2601 (1994).
91. 405 U.S. 438 (1972).
92. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
93. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
94. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
95. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
96. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 110 Stat. 2105.
97. Ronald Dworkin, Law's Empire 255-56 (1986); see also Dworkin, Taking Rights Seriously, supra note 26, at 81-149 (arguing that although a judge may not invent rights, existing rights should be interpreted from an activist perspective).
98. Ronald Dworkin, Law's Empire 255-56 (1986); see also Dworkin, Taking Rights Seriously, supra note 26, at 81-149 (arguing that although a judge may not invent rights, existing rights should be interpreted from an activist perspective).
99. See also Cass R. Sunstein & Stephen Holmes, The Cost of Rights: Why Liberty Depends on Taxes 54-58 (1999) ("Protection 'against' government is therefore unthinkable without protection 'by' government.").
100. Carol Gilligan, In a Different Voice 64-105 (1982).
101. See Hendrik Hartog, The Constitution of Aspiration and "The Rights That Belong to Us All", 74 J. Am. His. 1017, 1024-25 (1987).