Rights, harms, and duties: A response to justice for hedgehogs

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 819-837

  West, Robin ^a,b  

^a Frederick J Hass Department of Law and Philosophy   (United States)

^b GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954322561     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (91)

1. See RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (forthcoming 2040) (Apr. 17, 2009 manuscript at 208-09, on file with the Boston University Law Review). Dworkin explains: Sometimes ... people use the idea of a political right in a stronger... way: to declare that some interests people have are so important that these interests must be protected even from policies that would indeed make people as a whole better off. We might say, capturing that idea, that political rights are trumps over otherwise adequate justifications for political action... This chapter studies political rights understood as tramps.
2. Id.
3. See id. (manuscript at 209).
4. See id. (manuscript at 208) ("When we come to political morality, rights plainly provide a better focus than duties because their location is more precise: individuals have political rights, and some of those rights, at least, are matched only by collective duties of community as a whole rather than of particular individuals.").
5. See id. (manuscript at 232, 235-37) ("Government must not abridge total freedom when its putative justification relies on some collective decision about what makes a life good or well-lived. We must each make that decision for himself:[sic] that is the core of our ethical responsibility.").
6. See id. (manuscript at 230-35).
7. See id. (manuscript at 221-27).
8. See id. (manuscript at 238-48).
9. See id. (manuscript at 226-27).
10. See id. (manuscript at 203-05).
11. Id. (manuscript at 210).
12. Id. (manuscript at 209).
13. See RONALD DWORKIN, TAHNG RIGHTS SERIOUSLY 193-97 (1977).
14. See id. at 200, 218-22.
15. DWORKIN, supra note 1 (manuscript at 209).
16. Two examples include: We say that the government should negotiate trade treaties because these are good for America's trade balance, or that government should subsidize farmers because that would improve the economy as a whole, or that government should abolish capital punishment because its use demeans our society. Many such claims are informal versions of a utilitarian trade-off argument. Id. The timid lady on the streets of Chicago is not entitled to just the degree of quiet that now obtains, nor is she entitled to have boys drafted to fight in wars she approves. These are laws - perhaps desirable laws - that provide for advantages for her, but the justification for these laws, if they can be justified at all, is the common desire of a large majority, nor her personal right
17. DWORKIN, supra note 12, at 195.
18. See DWORIN, supra note 1 (manuscript at 209).
19. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54 (1973) (deciding films defined as "obscene" under Georgia obscenity law are not protected by First Amendment);
20. Miller v. California, 413 U.S. 15, 23 (1973) (upholding California's obscenity law because distribution of obscene materials not protected under First Amendment);
21. Am. Booksellers Ass'n, Inc. v. Hudnut 771 F.2d 323, 324 (7th Cir. 1985) (concluding Indiana's attempt to provide a civil rights remedy for injuries caused by pornography is different from "obscenity," which Supreme Court has held not protected under First Amendment and therefore is unconstitutional).
22. See District of Columbia v. Heller, 128 S. Ct 2783,2821-22 (2008) (invalidating D.C. gun control law as violation of Second Amendment);
23. NRA v. City of Chicago, 567 F.3d 856, 858-60 (7th Cir. 2009), cert, granted sub nom.
24. McDonald v. City of Chicago, 130 S. Ct. 48 (Sept. 30, 2009) (indicating that the Second Amendment is not incorporated against the states).
25. See, e.g., Kolender v. Lawson, 461 U.S. 352, 353 (1983) (declaring California loitering statute unconstitutionally vague);
26. Loper v. N.Y. City Police Dep't 999 F.2d 699, 705 (2d Cir. 1993) (finding New York loitering statute unconstitutionally vague).
27. See Lawrence v. Texas, 539 U.S. 558, 578 (2003) (invalidating Texas law criminalizing homosexual sodomy).
28. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (ruling that Hialeah's ordinance regarding animal sacrifice was unconstitutional for targeting Santeria religion).
29. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 879-901 (1992)
30. (invalidating most but not all of Pennsylvania abortion statute at issue); Roe v. Wade, 410 U.S. 113, 154 (1973) (invalidating Texas abortion law as violation of right to privacy).
31. See, e.g., Hughes v. Super. Ct of Cal., 339 U.S. 460, 464 (1950).
32. See, e.g., Yates v. United States, 354 U.S. 298, 334 (1957).
33. See Employment Div. v. Smith, 494 U.S. 872, 878-79 (1990) (upholding Oregon's denial of compensation to workers fired for using peyote in a religious ceremony, in face of First Amendment challenge).
34. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (invalidating Connecticut's ban on contraception because it violated the "right to marital privacy").
35. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 264 (1964).
36. See Lochner v. New York, 198 U.S. 45, 62-64 (1905) (invalidating N.Y. LAB. LAW § 110 (McKinney 1897), which limited labor hours for bakers).
37. See Pa. Coal v. Mahon, 260 U.S. 393, 414-15 (1922) (establishing the doctrine of "regulatory taking," expanding the power of the Takings Clause of the Fifth Amendment).
38. See, e.g., N.Y. Times, 376 U.S. at 272-73 ("Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error.");
39. Mahon, 260 U.S. at 415-16 ("The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.").
40. See Morton J. Horowitz, Rights, 23 HARV. C.R.-C.L. L. REV. 393, 400 (1988) (discussing how the "revolutionary . . . natural rights philosophy of the Declaration of Independence" transformed into a "conservative pro-property doctrine" that legitimated slavery);
41. Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1386-88 (1984).
42. Sotomayor Hearings: The Complete Transcript - Part 2, L.A. TIMES, July 14, 2009, http://latimesblogs.latimes.com/washington/2009/07/sotomayor-hearings- complete-transcript-part-two.html (reporting Senator Hatch's questions to Justice Sotomayor regarding her views on gun rights).
43. N.Y. Times, 376 U.S at 271.
44. Griswold v. Connecticut, 381 U.S. 479,485-86 (1965) (recognizing a "right to marital privacy" that covers intimate relations).
45. Eisenstadt v. Baird, 405 U.S. 438, 453-54 (1972) (finding a Massachusetts statute that permitted physicians to provide contraceptives to married couples but not unmarried couples violates the equal protections clause).
46. Roe v. Wade, 410 U.S. 113, 154-55 (1973) (holding that "the right of personal privacy includes the abortion decision").
47. Lawrence v. Texas, 539 U.S. 558, 578 (2003) (reasoning that mutually consenting adults "are entitled to respect for their private lives").
48. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969);
49. Whitney v. California, 274 U.S. 357,377-78 (1927) (Brandeis, J., concurring);
50. Abrams v. United States, 250 U.S. 616, 63031 (1919) (Holmes, J., dissenting).
51. See United States v. Various Articles of Obscene Merch., Schedule No. 2102, 709 F.2d132,137 (2d Cir. 1983).
52. See Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 688-89 (1959) (holding that the First Amendment's "basic guarantee... of freedom to advocate ideas" extends even to the idea that "adultery may sometimes be proper").
53. Compare PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 7-25 (1965) (arguing that because moral conformity was necessary to the stability of a society, removal of moral legislation will lead to societal collapse),
54. with H.L.A. HART, LAW, LIBERTY, AND MORALITY 14-15 (1963) (arguing that as long as no one is harmed by an action, prohibiting that action is "not the law's business").
55. See Lawrence, 539 U.S. at 578.
56. See THE TRIAL OF LADY CHATTERLEY 207-25 (C.H. Rolph ed., 1961).
57. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 960-61 (Mass. 2003) (finding the state cannot deny same-sex couples the benefits that accompany civil marriage);
58. WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME SEX MARRIAGE: FROM SEXUALITY LIBERTY TO CIVILIZED COMMITMENT 87-123 (1996);
59. ROBIN WEST, MARRIAGE, SEXUALITY, AND GENDER 169-71 (2007);
60. Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 72 BROOK. L. REV. 61,77-80 (2006).
61. See, e.g., 102 Cong. Rec. 4460 (1956) (statement of Sen. George) (indicating that desegregation was "destroying the amicable relations between the white and Negro races").
62. See Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954).
63. Compare Lochner v. New York, 198 U.S. 45, 62-64 (1905) (declaring that the state should not "assume the position of a supervisor" by paternalistically setting working hours for bakers),
64. with W. Coast Hotel Co. v. Panish, 300 U.S. 379,398-99 (1937) (upholding the constitutionality of Washington state's Minimum Wages for Women Act).
65. See CATHERINE A. MACKINNON, ONLY WORDS passim (1993) (arguing that protecting pornography is "protecting sexual abuse as speech").
66. See Robin West From Choice to Reproductive Justice: De- Constitutionalizing Abortion Rights, 118 YALE LJ. 1394, 1411 (2009) (suggesting that by considering parenting a "choice," the community exempts itself from any responsibility in alleviating the burden of childcare that the parent has "chosen").
67. See District of Columbia v. Heller, 128 S. Ct. 2783, 2821-22 (2008).
68. See NRA v. City of Chicago, 567 F.3d 856, 858-60 (7th Cir. 2009),
69. cert, granted sub nom. McDonald v. City of Chicago, 130 S. Ct 48 (Sept. 30, 2009).
70. See DWORKIN, supra note 1 (manuscript at 226-28).
71. See RONALD DWORHN, SOVEREIGN VIRTUE 66-119 (2008) (discussing at length how the equality of resources should be a positive goal of a government interested injustice).
72. DWORKIN, supra note 1 (manuscript at 226).
73. See id. (manuscript at 210).
74. See id. (manuscript at 208);
75. DWORKIN, supra note 12, at 171-73,184-86.
76. Dworkin does not neglect duty or obligation altogether. We all have moral duties not to harm others, Dworkin argues, and we all have moral duties to aid others in such a way as to reflect the objective value of their lives.
77. DWORKIN, supra note 1 (manuscript at 174-87).
78. And, we all have a political duty to help ensure that we have a government that respects the objective lives of all citizens, which in turn entails that we should try to install a government that will pursue the redistribution of our collective wealth so as to guarantee to all citizens a minimal entitlement that reflects the hypothetical choice of a reasonable person to the insurance requisite to compensate for the risks of a poor genetic or monetary inheritance.
79. Id. at 226-27 (proposing a system of hypothetical luck to "erase the consequences of bad luck").
80. To discharge that duty as citizens, we should vote; and as legislators, we should legislate in a way that those minimal entitlements are met. Otherwise, we should protect markets and market outcomes so that they might operate in a way that not only reflects, but actually operationalizes, our individualized conceptions of the good. We then might also, as citizens, have a political duty to obey the law that follows on the heels of these principles. This is quite minimal. It does not tell us, for example, whether the failure of state, local, and national governments to keep the levees in good repair in Louisiana was a breach of a moral duty to exercise sovereignty in the interest of the governed, or for that matter, of the General Welfare Clause of the Constitution. It does not tell us whether the failure of any of those governments to protect us through legislation against climate change is such a failure. It does not tell us even whether a state's disavowal of the duty to educate children is a breach of a constitutional or moral duty. Beyond this duty to redistribute in line with the hypothetical insurance market's outcomes, the distinctive moral, political, or constitutional duties of legislators qua legislators affirmatively to pass law in such a way as to actually pursue "collective goals" beyond the redistributive entitlements that might be generated by the hypothetical insurance market, and in accordance with the moral duties that attach to the possession and exercise of power, gets a pass.
81. See Robin West, Ennobling Politics, in LAW AND DEMOCRACY IN THE EMPIRE OF FORCE 58, 72-80 (H. Jefferson Powell & James Boyd White eds., 2009) (arguing that because the Constitution is "also our code of political morality," by focusing on negative rights defined by courts, the populace at large becomes apathetic to affirmative moral change);
82. Robin West Unenumerated Duties, 9 U. PA. J. CONST. L. 221, 252-60 (2006).
83. See DWORHN, supra note 1 (manuscript at 221-27).
84. See id. (manuscript at 152-61, 235-38).
85. See id. (manuscript at 225-26).
86. See Franklin D. Roosevelt, The Annual Message to the Congress (Jan. 6, 1941), in 1940 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 663, 672 (Samuel I. Rosenman ed., 1941).
87. See DWORKIN, supra note 1 (manuscript at 219).
88. See Goodwin Liu, Education, Equality, and National Citizenship, 116 YALE L.J. 330, 334-35 (2006).
89. -489 U.S. 189 (1989) (finding that a state was not responsible for child's brain-damage as a result of his father's abuse because the Due Process Clause exists "to protect the people from the State, not to ensure that the State protected them from each other").
90. See West, supra note 49, at 1403;
91. Robin West, Toward an Abolitionist Interpretation of the Fourteenth Amendment, 94 W. VA. L. REV. 111,141 (1991).