Personal rights and rule-dependence: Can the Two Coexist?

Legal Theory

Volumn 6, Issue 4, 2000, Pages 337-389

  Adler, Matthew D ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 33750241149     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200064016     Document Type: Article

References (110)

1. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). See also Matthew D. Adler, Rights, Rules and the Structure of Constitutional Adjudication: A Response to Professor Fallon, 113 HARV L. REV. 1371 (2000) (responding to criticisms of Rights Against Rules put forward by Professor Richard Fallon in As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321 (2000)).
2. See Adler, Rights Against Rules, Rights Against Rules: The Moral Structure of American Constitutional Law note 1, at 13-18 (explicating focus on sanctions and duties).
3. See id. at 39-91 (analyzing and criticizing “Direct Account” of constitutional adjudication).
4. For a contrary view, see Fallon, (analyzing and criticizing “Direct Account” of constitutional adjudication). note 1 (presenting a model of constitutional adjudication that is both rule-dependent and yet also, purportedly, vindicates personal rights).
5. See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976); Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1 (1978); Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247 (1988); David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988).
6. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973) (citations omitted).
7. For other clear articulations by the Court of the “personal rights” model of constitutional adjudication, see, e.g., Los Angeles Police Dep't v. United Reporting Publ'g Corp., 120 S. Ct. 483, 488 (1999); Osborne v. Ohio, 495 U.S. 103, 112 n.8 (1990); Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (plurality opinion); Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985); Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984); New York v. Ferber, 458 U.S. 747, 767 (1982); United States v. Raines, 362 U.S. 17, 20-22 (1960).
8. See, e.g., Broadrick, 413 U.S. at 611-15 (discussing exceptions to personal rights model); Raines, 362 U.S. at 22-23 (same).
9. See Adler, Rights Against Rules, Broadrick note 1, at 142-45 (discussing overbreadth case law). For scholarly treatments of the overbreadth case law, see Lawrence A. Alexander, Is There an Overbreadth Doctrine?, 22 SAN DIEGO L. REV. (1985); Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853 (1991); Alfred Hill, The Puzzling First Amendment Overbreadth Doctrine, 25 HOFSTRA L. REV. 1063 (1997); Henry P. Monaghan, Overbreadth, 1981 SUP. CT. REV. 1; Martin Redish, The Warren Court, the Burger Court, and the First Amendment Overbreadth Doctrine, 78 NW. U. L. REV. 1031 (1983); Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844 (1970).
10. See Adler, Rights Against Rules, Rights Against Rules note 1, at 162-64 (discussing third-party standing case law). For scholarly treatments of this case law, see Henry P.Monaghan, Third Party Standing, 84 COLUM. L. REV. 277 (1984); Robert Allen Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 CAL. L. REV. 1308 (1982); Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423 (1974).
11. See L.W. Sumner, THE MORAL FOUNDATION OF RIGHTS 14-18 (1987) (noting ambiguity in, and potentially expansive scope of, the concept of a “right”).
12. See, e.g., Adler, Rights Against Rules, THE MORAL FOUNDATION OF RIGHTS 14-18 note 1, at 24-25 (stipulating a broad definition of “constitutional right”); Sumner, THE MORAL FOUNDATION OF RIGHTS 14-18 note 11, at 32-45 (discussing views that equate rights with advantageous Hohfeldian positions).
13. See Allen v.Wright, 468 U.S. 737, 751 (1984) (stating that “personal injury” is an element of Article III standing); infra text accompanying notes 53-60 (distinguishing between the minimal interest-based conception of rights, which makes a setback to the claimant's interests both necessary and sufficient for an unconstitutional government action to implicate his “rights,” and more robust conceptions that make a setback to the claimant's interests necessary but not sufficient).
14. See generally Robert A. Anthony, Zone-Free Standing for Private Attorneys General, 7 GEO. MASON L. REV. 237 (1999) (analyzing “zone of interests” requirement within standing doctrine).
15. This is how the “Direct Account,” as I call it, understands constitutional rights. See Adler, Rights Against Rules, Zone-Free Standing for Private Attorneys General note 1, at 39-44 (formulating Direct Account). See also Donald H. Regan, Glosses on Dworkin: Rights, Principles, and Policies, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 119, 128-31 (Marshall Cohen ed., 1983) (analyzing view of rights as “individuated claims”).
16. See Ronald Dworkin, TAKING RIGHTS SERIOUSLY (1977); infra Part IV.C. (discussing Dworkin's views).
17. Illuminating overviews of (and entries in) this jurisprudential debate include: Matthew H. Kramer, Rights Without Trimmings, in Matthew H. Kramer, N.E. Simmonds & Hillel Steiner, A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES (1998); Sumner, TAKING RIGHTS SERIOUSLY note 11; and Jeremy Waldron, Introduction, in THEORIES OF RIGHTS (Jeremy Waldron ed., 1984). Comprehensive citations to the jurisprudential literature on rights, as it currently stands, are to be found in the Kramer article.
18. The Court's doctrines do rule out the unadorned interest view of “personal rights”-that simply having an interest, of any kind, in judicial invalidation of the challenged action makes the litigant suitably “personal”-but whether the interest needs further to be protected, individualized, or trumping, or whether something else needs to be true of the litigant, is not doctrinally clear. See infra text accompanying notes 53-60 (explaining why doctrines rule out the unadorned interest view).
19. See Adler, Rights Against Rules, The Court's doctrines do rule out the unadorned interest view of “personal rights”-that simply having an interest, of any kind, in judicial invalidation of the challenged action makes the litigant suitably note 1, at 13-39 (describing rule-dependent cast of constitutional doctrine); Alexander, The Court's doctrines do rule out the unadorned interest view of “personal rights”-that simply having an interest, of any kind, in judicial invalidation of the challenged action makes the litigant suitably note 9, at 544-47 (same); Monaghan, The Court's doctrines do rule out the unadorned interest view of “personal rights”-that simply having an interest, of any kind, in judicial invalidation of the challenged action makes the litigant suitably note 9, at 4-14 (same).
20. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); United States v. O'Brien, 391 U.S. 367 (1968). See generally Adler, Rights Against Rules, Rights Against Rules note 1, at 19-26 (summarizing relevant free-speech doctrine).
21. See, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307 (1993); Craig v. Boren, 429 U.S. 190 (1976). See generally Adler, Rights Against Rules, R.A.V. v. City of St. Paul note 1, at 26-29 (summarizing relevant equal-protection doctrine).
22. See Lemon v. Kurtzman, 403 U.S. 602 (1970). In recent years, the Lemon test for Establishment Clause challenges has been criticized by various justices and, although not formally overruled, has “ceased to operate as a general Establishment Clause test.” Kent Greenawalt, Quo Vadis: The Status and Prospects of “Tests” under the Religion Clauses, 1995 SUP. CT. REV. 323, 359. It seems clear, however, that some kind of purpose inquiry will remain part of Establishment Clause doctrine. See id. at 364-68.
23. Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (internal quotations omitted). See generally Adler, Rights Against Rules, Lemon v. Kurtzman note 1, at 29-30, 37 n.144 (summarizing rule-dependent cast of free exercise doctrine post-Smith and even pre-Smith).
24. See Fallon, Employment Div. v. Smith note 1, at 1325, 1365 (“[I accept] Adler's important insight that many constitutional rights are rights against rules,” but “not all rights fit the [rule-dependence] framework”); Adler, A Response to Professor Fallon, Employment Div. v. Smith note 1, at 1373-77 (agreeing with Fallon that rule-dependence is not universal, and clarifying that Rights Against Rules did not claim otherwise).
25. Given the Court's doctrine, “torture” here will need to be defined so as to include a sufficiently culpable mental state on the part of the governmental actor, as well as a certain kind of injury to the claimant. See County of Sacramento v. Lewis, 118 S. Ct. 1708, 1718 (1998) (“It is… behavior at the other end of the culpability spectrum [from negligence] that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.”). Note, however, that mental states and rules are different things. A government official O can intentionally perform, say, the action A of applying a cattleprod to a victim's body, without there existing any rule that authorizes or arguably authorizes that action. To be sure, for A to violate constitutional rights, some background set of legal rules must be in place, such that O is characterized as a “governmental” official and A as a “governmental” action; but this is not the same as saying that a particular rule authorizing A, or any other particular rule, must be in force.
26. Specifically, an unconstitutional “scenario” is a state of affairs of the following kind: It consists in the performance of some type of unconstitutional governmental action, plus the satisfaction of further prerequisites for judicial relief, such as the presentation of a constitutional claim by suitable litigants. This specification of the concept of an unconstitutional “scenario” follows from the “state action” doctrine, discussed infra text accompanying note 53. That doctrine means that any unconstitutional scenario must involve some kind of unconstitutional governmental action, rather than merely governmental inaction or private action.
27. See Adler, Rights Against Rules, Specifically note 1, at 13-39. More precisely, I claimed and still believe that substantive challenges to sanctions and duties are generally rule-dependent. Rights Against Rules did not examine the structure of procedural challenges to sanctions and duties. See id. at 18.
28. See 491 U.S. at 413 n.8 (“We… emphasize that Johnson was prosecuted only for flag-desecration-not for trespass, disorderly conduct, or arson.”).
29. For other cases like this, see R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (successful free-speech challenge, predicated on discriminatory cast of rule, where speech-act was also action of trespass); United States v. Eichman, 496 U.S. 310 (1990) (successful free-speech challenge, predicated on speech-targeted cast of rule, where speech-act may also have been action of injuring federal property).
30. Assume Johnson turns out to be an arsonist, polluter, or assaulter. Then, intuitively, the Court would be unjustified in issuing an individualized remedial order that benefits only Johnson. I argued in Rights Against Rules that this intuition is correct; if Johnson is a wrongdoer under some description other than “flag desecrator,” a reviewing court ought to overturn Johnson's sanction only as part of a general invalidation of the flag-desecration statute. See Adler, Rights Against Rules, For other cases like this note 1, at 39-91.
31. It is at least arguable that, where a speech-act has harmful nonexpressive characteristics, the justification for restricting that act need not be as strong as the justification for restricting a speech-act that is only harmful in virtue of what it expresses. See United States v. O'Brien, 391 U.S. 367 (1968) (articulating an intermediate-scrutiny test for rules that are targeted at nonexpressive act-properties but include some speech-acts within their scope); Adler, Rights Against Rules, Assume Johnson turns out to be an arsonist, polluter, or assaulter. note 1, at 109 n.357 (noting that, in recent years, the Court has not sustained O'Brien-type challenges).
32. U.S. 739, 745 (1987).
33. This debate has been particularly intense in the area of abortion rights. See Janklow v. Planned Parenthood, 517 U.S. 1174, 1175 (1996) (denying certiorari) (memorandum of Stevens, J.); Fargo Women's Health Org. v. Schafer, 507 U.S. 1013 (1993) (denying stay) (O'Connor, J., concurring); Ada v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011 (1992) (denying certiorari) (Scalia, J., dissenting); Planned Parenthood v. Casey, 505 U.S. 833, 972-73 (1992) (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). But it has also occurred in other areas of constitutional law, including free speech, the Establishment Clause, equal protection, the Takings Clause, and in the assisted suicide cases. See Adler, Rights Against Rules, U.S. note 1, at 11 n.39 (citing cases). The propriety of facial challenges was prominently at issue in the recent Supreme Court decision sustaining a vagueness challenge to Chicago's gang loitering ordinance. See City of Chicago v. Morales, 119 S. Ct. 1849 (1999).
34. See Adler, Rights Against Rules, This debate has been particularly intense in the area of abortion rights. note 1, at 128 n.425 (citing recent facial invalidations); id. at 156 n.539 (citing facial invalidations in area of abortion rights).
35. These issues are finally beginning to receive academic attention. The three general treatments (besides Rights Against Rules and the contributions to this and the preceding issue of LEGAL THEORY) are Michael Dorf's seminal article, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Mark Isserles’ Overcoming Overbreadth, see Rights Against Rules note 18; and Richard Fallon's Facial and As-Applied Challenges, see Rights Against Rules note 1. A number of student notes have discussed the facial-challenge problem in the abortion rights context. See Ruth Burdick, Note, The Casey Undue Burden Standard: Problems Predicted and Encountered and the Split over the Salerno Test, 23 HASTINGS CONST. L.Q. 825 (1996); John Christopher Ford, Note, The Casey Standard for Evaluating Facial Attacks on Abortion Statutes, 95 MICH. L. REV. 1443 (1997); Skye Gabel, Note, Casey “Versus” Salerno: Determining an Appropriate Standard for Evaluating the Facial Constitutionality of Abortion Statutes, 19 CARDOZO L. REV. 1825 (1998); Kevin Martin, Note, Stranger in a Strange Land: The Use of Overbreadth in Abortion Jurisprudence, 99 COLUM. L. REV. 173 (1999).
36. See, e.g., Dorf, These issues are finally beginning to receive academic attention. note 37, at 257-61 (suggesting that the application of a law discriminating against a suspect class to a member of that class does violate her personal rights).
37. Cf. Texasv Johnson, 491 U.S. 397, 406-421, 406, 412 (1989) (holding that Texas's flag-desecration law was “directed at the communicative nature of conduct” and therefore triggered “the most exacting scrutiny,” which it failed) (internal quotations omitted).
38. Cf. Johnson, 491 U.S. at 404 n.3 (“Although Johnson has raised a facial challenge to Texas's flag-desecration statute, we choose to resolve this case on the basis of his claim that the statute as applied to him violates the First Amendment…. A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts’ interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in expressive conduct would pose a different case… we address only Johnson's claim that [the statute] as applied to political expression like his violates the First Amendment.”).
39. See Adler, Rights Against Rules, (“Although Johnson has raised a facial challenge to Texas's flag-desecration statute, we choose to resolve this case on the basis of his claim that the statute as applied to him violates the First Amendment…. note 1, at 36-38, 106, 125-27, 157-58 (suggesting that as-applied challenges are best understood as partial invalidations).
40. I count all of the following as facial invalidations: Planned Parenthood v. Casey, 505 U.S. 833 (1992); Hodgson v. Minnesota, 497 U.S. 417 (1990); Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); Belloti v. Baird, 443 U.S. 622 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973).
41. See Rights Against Rules, U.S. 113 note 1, at 42, 39-91 (describing hypothetical case of a sanction imposed pursuant to an antiabortion statute upon a woman who procures an abortion through a coercive threat, and arguing inter alia that such a sanction would not violate the woman's personal rights).
42. For an extended and recent summary of the debate between Interest Theorists andWill Theorists, see Kramer, Rights Against Rules note 17, at 60-101.
43. See, e.g., Joseph Raz, THE MORALITY OF FREEDOM 165-92 (1986).
44. See, e.g., D.N. MacCormick, Rights in Legislation, in LAW, MORALITY AND SOCIETY: ESSAYS IN HONOUR OF H.L.A. HART 189 (P.M.S. Hacker & J. Raz eds., 1977).
45. See, e.g., H.L.A. Hart, Bentham on Legal Rights, in OXFORD ESSAYS IN JURISPRUDENCE 171 (2d series; A.W.B. Simpson ed., 1973).
46. This is true insofar as current Article III doctrine maps onto a weak variant of an Interest Theory of rights, by requiring “injury in fact.” See infra Part III.D. A fortiori, the person whose “personal rights” are violated by unconstitutional governmental action will be able to show injury. For an illuminating discussion of standing doctrine, and its evolution from a stronger interest-based view that equated standing with the tenure of personal rights, see Monaghan, id. (discussing Bentham's theory of rights). note 10.
47. See Sumner, This is true insofar as current Article III doctrine maps onto a weak variant of an Interest Theory of rights, by requiring “injury in fact. note 11, at 47 (“The interest conception treats rights as devices for promoting individual welfare.”). As Raz puts it, “To assert that an individual has a right is to indicate a ground for a requirement for action of a certain kind, i.e., that an aspect of his well-being is a ground for a duty on another person.” Raz, This is true insofar as current Article III doctrine maps onto a weak variant of an Interest Theory of rights, by requiring “injury in fact. note 47, at 180.
48. See, e.g., DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 203 (1989).
49. The one apparent counterexample is the Takings Clause, since a property owner is constitutionally entitled to compensation even when government, for very good reasons, takes his property for public use. But what constitutes a rights violation, in the Takings Clause context, is the (unjustified) taking-and-then-not-paying-compensation, not the (justified) taking. Relatedly, the property owner has no power to secure constitutional relief, from a federal reviewing court, until the government has both taken his property and declined to compensate him. See, e.g., Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985) (“The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation”).
50. See generally Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1 (1998) (arguing that a plaintiff has a right to sue a defendant in tort only if the defendant has breached a duty to the plaintiff-if the defendant has committed a relational wrong, relative to the plaintiff-and not merely because the defendant has committed a wrongful act that forseeably injured the plaintiff).
51. I assume that such a rule would be sufficiently overinclusive to count as unconstitutionally “overbroad” under the Court's doctrine. Cf. Massachusetts v. Oakes, 491 U.S. 576, 590 (1989) (Brennan, J., dissenting) (arguing that statute prohibiting nude or sexual photographs, etc., of children, with nudity defined only to include genitals, pubic areas, and postpubertal female breasts, was overbroad).
52. At least under current free-speech doctrine; the Court has more than once upheld statutes regulating child pornography. See Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458 U.S. 747 (1982).
53. P1's challenge to the rule would be seen by the Court (and by constitutional scholars who accept the Court's formulation of the overbreadth doctrine) as a paradigmatic First Amendment “overbreadth” challenge: a challenge that is asserted by a person whose own speech is unprotected, and who, therefore, cannot raise a claim of “personal rights,” but is permitted to invoke judicial relief given a special, First Amendment exception to the personal rights requirement. See sources cited At least under current free-speech doctrine; the Court has more than once upheld statutes regulating child pornography. note 9.
54. See generally George Sher, DESERT (1987) (analyzing such considerations, and partly defending their moral significance).
55. To put this prong of the framework in terms more familiar to constitutional lawyers: She might insist that P's interest lie within the “zone of interests” protected by the Constitution. See Anthony, DESERT note 14 (discussing zone-of-interest doctrine).
56. This is a familiar view, defended (among others) by Andrew Koppelman, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY (1996); Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1 (1976); Kenneth L. Karst, Foreword: Equal Citizenship under the Fourteenth Amendment, 91 HARV. L. REV. 1 (1977); Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L.REV. 317 (1987); Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410 (1994).
57. See Adler, Rights Against Rules, This is a familiar view, defended (among others) by Andrew Koppelman note 1, at 71-74 (further articulating this account).
58. Cf. John Rawls, A THEORY OF JUSTICE 92 (1971) (specifying “rights” and “liberties” as separate types of primary goods).
59. Texas v. Johnson, 491 U.S. 397 (1989), is paradigmatic. In Johnson, a state-court directive ordering Johnson to spend one year in prison and pay $2000 was overturned by the Supreme Court because Johnson had been prosecuted pursuant to a speech-targeted law, one prohibiting the “desecrat[ion] [of a]… state or national flag.” Numerous other cases involving the Court's reversal of a sanction by virtue (in part) of the rule that the government had relied upon to obtain the sanction, and not merely by virtue of the change in legal position that the sanction constituted, are cited in Rights Against Rules, A THEORY OF JUSTICE 92 note 1, at 13-39.
60. The temptation to explain cases of broad rule-dependence as cases where the claimant holds yet another legal position-a liability-should be avoided. For example, if rule R1 says that “All black persons are subject to a $1000 fine if they drive faster than 80 miles per hour,” and rule R2 says that “All persons whose income was greater than $1 million in 1998 are subject to a $1000 fine if they drive faster than 80 miles per hour,” then P (a black millionaire) has exactly the same liability under R1 and R2-the liability to have a large fine imposed if he speeds-but only his sanction under R1 will be unconstitutional.
61. See Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).
62. See generally Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000) (describing and criticizing expressive theories of law, including expressive theories of constitutional law).
63. Stigmatic utterances-utterances that characterize the target as inferior-have been a central concern of “expressivist” scholars, not just in the area of the Equal Protection Clause, see sources cited Expressive Theories of Law: A Skeptical Overview note 62, but in other areas as well. See Adler, Expressive Theories of Law: A Skeptical Overview note 69, at 1422-25,1428-38, 1446.
64. See Adler, Stigmatic utterances-utterances that characterize the target as inferior-have been a central concern of “expressivist” scholars, not just in the area of the Equal Protection Clause, see sources cited Expressive Theories of Law: A Skeptical Overview note 62, but in other areas as well. note 69, at 1384-88, 1400-01 (noting that an utterance with a particular literal meaning may also have a non-literal conventional meaning, or a non-literal speaker's meaning).
65. This encapsulates an argument presented at much greater length in id. at 1424-25, 1434-36, 1447-48; and also in Matthew D. Adler, Linguistic Meaning, Nonlinguistic “Expression,” and the Multiple Variants of Expressivism: A Response to Professors Anderson and Piildes, 148 U. PA. L. REV. 1577, 1590-94 (2000).
66. See Personnel Adm'r v. Feeney, 442 U.S. 256, 271-80 (1979) (explaining relevance of “discriminatory purpose” within equal protection doctrine); This encapsulates an argument presented at much greater length in id. note 23 (discussing relevance of religious purpose within Establishment Clause doctrine).
67. See, e.g., John Hart Ely,DEMOCRACYANDDISTRUST: ATHEORY OF JUDICIAL REVIEW (1980). For specific discussion of the doctrinal role that the purpose of a rule, or other features of the process that produced it, should have in constitutional challenges to the rule or to actions flowing from it, see Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV. 95; John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970); Symposium, Legislative Motivation, 15 SAN DIEGO L. REV. 925 (1978); Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis, 85 CAL. L.REV. 297 (1997).
68. An acute and much fuller treatment is provided by Larry Alexander, Are Procedural Rights Derivative Substantive Rights?, 17 LAW & PHIL. 19 (1998).
69. This view has been most fully articulated in the literature on procedural due process. See, e.g., Frank I. Michelman, Formal and Associational Aims in Procedural Due Process, in DUE PROCESS: NOMOS XVIII 126 (J. Roland Pennock & John W. Chapman eds., 1977); Jerry L. Mashaw, Administrative Due Process: The Quest for a Dignitary Theory, 61 B.U. L. REV. 885 (1981); Robert S. Summers, Evaluating and Improving Legal Processes-A Plea for “Process Values,” 60 CORNELL L. REV. 1 (1974).
70. See Adler, Rights Against Rules, This view has been most fully articulated in the literature on procedural due process. note 1, at 55-66 (elaborating notion of epistemic interest). Cf. Richard J. Hall & Charles R. Johnson, The Epistemic Duty to Seek More Evidence, 35 AM. PHIL. Q. 129 (1998).
71. See sources cited Rights Against Rules note 77. More generally, “motivational deontologies” or other moral theories that make rightness or wrongness a partial function of actors'mental states have been long propounded within the philosophical literature. See Heidi M. Hurd, What in theWorld is Wrong?, 1994 J. CONTEMP. LEGAL ISSUES 157 (1994) (analyzing motivational and other deontologies). My argument for the instrumentalist view of rule-formulation processes does not constitute, nor depend upon, the view that mental states are irrelevant in all moral contexts.
72. More precisely,M* in the current example is ex ante instrumentally justified. An ex ante instrumentally justified procedure is one that persons rationally follow, insofar as they aim at justified outcomes; an ex post instrumentally justified procedure is one that actually produces the justified outcome.
73. Strictly, this is not right. We could imagine a view that posited an intrinsic benefit only in the following of an instrumentally justified rule. But no theorist I am aware of says this; for example, participationists (as I read them) suggest that participation of the right sort is a (prima facie) benefit even if a more accurate, participation-free procedure is available. See sources cited More precisely,M* in the current example is ex ante instrumentally justified. note 79.
74. Monaghan, Strictly, this is not right. note 10, at 285 (citations omitted). For other statements by Monaghan of this view, see Monaghan, Strictly, this is not right. note 9, at 4-14; Henry Monaghan, Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV. 195, 196-97.
75. See Lon L. Fuller, THE MORALITY OF LAW (rev. ed. 1969). See also Heidi M. Hurd, Justifiably Punishing the Justified, 90 MICH. L. REV. 2203, 2236-55 (1992) (summarizing Fuller's view, and analyzing “rule of law” values he articulates).
76. This includes the abortion case law mentioned above, see THE MORALITY OF LAW text accompanying notes 43-45, as well as other parts of substantive due process jurisprudence, see Adler, Rights Against Rules, THE MORALITY OF LAW note 1, at 30-33.
77. A wonderful overview of these features is provided by Shelly Kagan, NORMATIVE ETHICS 25-186 (1998).
78. See id. at 70-105; Adler, A wonderful overview of these features is provided by Shelly Kagan note 69, at 1481-84.
79. See Sher, A wonderful overview of these features is provided by Shelly Kagan note 69 note 59 (generally analyzing moral relevance of desert); see also G.A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906 (1989) (discussing resurgent role of considerations of desert and responsibility within egalitarian moral theorizing).
80. See Michael Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER AND THE EMOTIONS 179 (Ferdinand Schoeman ed., 1987).
81. An expressive theory of retribution, of one kind or another, is defended by Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659 (1992); Robert Nozick, PHILOSOPHICAL EXPLANATIONS 363-97 (1981); Igor Primoratz, Punishment as Language, 64 PHIL. 187 (1989); R.A. Duff, TRIALS AND PUNISHMENTS 233-66 (1986).
82. See Adler, An expressive theory of retribution, of one kind or another, is defended by Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution note 69, at 1421-22, 1476-79.
83. See Nozick, An expressive theory of retribution, of one kind or another, is defended by Jean Hampton, Correcting Harms versus Righting Wrongs: The Goal of Retribution note 69 note 93, at 369-70.
84. Equality has been a subject of much current philosophical work, including Temkin's seminal book, see Larry S. Temkin, INEQUALITY (1993); Amartya Sen's corpus of work, see, e.g., INEQUALITY REEXAMINED (1992); and the large body of literature, integrating equality and responsibility, that was generated by Ronald Dworkin's articles on equality of welfare versus equality of resources, see Peter Vallentyne, Self-Ownership and Equality: Brute Luck, Gifts, Universal Dominance, and Leximin, 107 ETHICS 321, 321 n.1 (1997) (citing this literature). The view that equality is parasitic on other moral considerations, see Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982), is (plausibly) denied by all the scholarship just described, and so my argument against an egalitarian defense of rule-dependence concedes that equality is a separable and significant part of morality.
85. There is an issue lurking here about the length of the “time slices” of P's life and Q's life that are appropriately compared to determine whether their treatment is equal, see Temkin, Equality has been a subject of much current philosophical work note 96, at 232-44; but even the shortest plausible time-slice will allow that where P is denied a benefit by rule R1 and Q is granted one, that difference might later be erased by a benefit to P under some other rule, or might be compensated for by P's preexisting wealth.
86. This point is borne out by the Court's standing doctrine. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Court denied Article III standing even though the claimants had federal, statutory standing created by a “citizen suit” provision that Congress had enacted. See id. at 576-78 (“The question presented here is whether the public interest in proper administration of the laws… can be converted into an individual right by a statute that denominates it as such, and that permits all citizens… to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious…. ‘Individual rights’… do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public.”).
87. The best-known contributions to this literature are cited by Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, 145 U. PA. L. REV. 759, 781 n.69 (1997). A good summary, with bibliography, is Michael J. Gerhardt & Thomas D. Rowe, Jr., CONSTITUTIONAL THEORY: ARGUMENTS AND PERSPECTIVES 1-193 (1993). An important recent contribution is Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO L.J. 1765 (1997).
88. Originalism or some other such nonmoral theory of constitutional interpretation is a necessary condition for reconciling personal rights and rule-dependence, but it is hardly a sufficient condition. What needs to be shown is that the right theory of constitutional interpretation is a nonmoral theory that, specifically, makes the existence of certain kinds of rules constitutive of rights violations. For example, the originalist who wants to reconcile personal rights and rule-dependence needs to show that the Framers believed rules and rights to be essentially linked, or something like that. See Adler, A Response to Professor Fallon, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty note 1, at 1395 n.90.
89. On the (possible) plurality of the objects of moral evaluation, see Kagan, Originalism or some other such nonmoral theory of constitutional interpretation is a necessary condition for reconciling personal rights and rule-dependence, but it is hardly a sufficient condition. note 88, at 194-212. In effect, my argument immediately below denies that legal institutions are basic objects of moral evaluation (although, of course, the action of creating a legal institution, or an action pursuant to an institution, is a basic evaluated object insofar as actions generally are). Cf. Geoffrey Scarre, UTILITARIANISM 122-32 (1996) (summarizing debate between act utilitarians and rule utilitarians).
90. Employment Div. v. Smith, 494 U.S. 872 (1990).
91. On the role of these and other institutional considerations in limiting judicial review, see Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
92. Why not strengthen the simple schema to introduce a requirement that the claimant's interest be “constitutionally distinctive,” without requiring that she suffer “unjustified harm”? That is: Why not say that P has the power to secure relief from a constitutional reviewing court only if (1) the government has performed the action of enacting an unjustified rule, and (2) this action has caused constitutionally distinctive harm to P? As I have already suggested, this sort of schema-like the simple schema-attributes “personal rights” to claimants traditionally seen by the Court and commentators as lacking such rights. In particular, it counts the imposition of a sanction on P1, the displayer of kiddy porn, pursuant to an overbroad rule prohibiting pictures of naked children, as a violation of P1's personal rights. See On the role of these and other institutional considerations in limiting judicial review note 60.
93. See, e.g., Allen v. Wright, 468 U.S. 737 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The Weak-Interest right, by contrast with standing doctrine, requires that the challenged action be unjustified; but this is just what would be shown “on the merits” by a claimant with standing. The Weak-Interest rights-holder is a person with standing to make a claim that a particular governmental action is unconstitutional and whose claim is, in fact, meritorious.
94. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 610-15 (1973); United States v. Raines, 362 U.S. 17, 20-23 (1960).
95. See Kramer, Broadrick v. Oklahoma note 17, at 78-101 (discussing the problem of distinguishing within an Interest Theory between duty-breaching actions that merely harm a person and dutybreaching actions that violate his rights).
96. Hart, Broadrick v. Oklahoma note 17 note 49, at 191-92 (footnote omitted).
97. Overviews of the Choice Theory are provided by Kramer, Hart note 17, at 66-78; and Hillel Steiner, Working Rights, in A DEBATE OVER RIGHTS, Hart note 17, at 239-83.
98. See Hart, Overviews of the Choice Theory are provided by Kramer note 49, at 179-83.
99. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985); Broadrick v. Oklahoma, 413 U.S. 601 (1973); sources cited This is implicit in Salerno's “no set of circumstances” test-the implication is that anyone with standing can secure the facial invalidation of a rule satisfying the test-and in the Court's actual facial invalidations, see Adler, Rights Against Rules, Hart note 1, at 128 n. note 9.
100. See Wesley N. Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (1919). Hohfeld's views are carefully analyzed by Kramer, Brockett v. Spokane Arcades note 17, at 8-60; and Sumner, Brockett v. Spokane Arcades note 11, at 18-31.
101. See Sumner, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING note 11, at 39-43.
102. See Sumner, Plus the choice to waive any remedy the enforcement court enters. note 11, at 19.
103. See Wellman, Plus the choice to waive any remedy the enforcement court enters. note 11 note 122, at 218 (arguing that a relative duty is not indefinable).
104. On these issues, see generally Kagan, Plus the choice to waive any remedy the enforcement court enters. note 11 note 122 note 88, at 25-105.
105. See Dworkin, On these issues note 16. There is a large scholarly literature on Dworkin's work. One important contribution, which includes in-depth discussions of Dworkin's theory of rights, is RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, On these issues note 15.
106. Cf. Joseph Raz, Professor Dworkin's Theory of Rights, 26 POL. STUD. 123 (1978) (claiming that Dworkin has failed to present a clear, coherent view of rights).
107. This seems to be Donald Regan's construal of Dworkin. See Regan, Professor Dworkin's Theory of Rights note 15, at 120-24.
108. More precisely, I should say this: (1) On the view that P's trumping interest in free speech of type S persists even where P's speech-act is nonexpressively harmful, P's trumping interest is implicated whenever a legal rule includes within its scope some S-type action of P's; and (2) on the contrary view, P has no trumping interest in an S-type speech-act that is nonexpressively harmful even if the rule that restricts that action is targeted at speech rather than at nonexpressive act-properties. So on neither view are the conditions for implicating P's trumping interest rule-dependent. See Strictly, this may not be true, given the narrow way I have defined “distinctive interest”-as distinctive in its effect on the well-being of the rights-holder-but the arguments I developed above with respect to “distinctive interest” in this narrow sense could, I think, be readily broadened to cover trumping interests. note 33 and accompanying text.
109. Dworkin, More precisely note 16, at 91 (emphasis added).
110. See Adler, Rights Against Rules, More precisely note 16 note 1, at 91-132.