The dual lives of rights: The rhetoric and practice of rights in America

California Law Review

Volumn 98, Issue 2, 2010, Pages 277-326

  Wilkinson III, J Harvie ^a  

^a NONE

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EID: 77956248292     PISSN: 00081221     EISSN: None     Source Type: Journal    
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References (385)

1. See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 458
2. See Jack N. Rakove & Elizabeth Beaumont, Rights Talk in the Past Tense, 52 STAN. L. REV. 1865, 1865 (2000)
3. (reviewing RICHARD A. PRIMUS, THE AMERICAN LANGUAGE OF RIGHTS (1999)) ("Rights have been a staple of Anglo-American law and politics since at least the seventeenth century.").
4. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 9(1991).
5. Brief of Respondents at 16, Bd. of Educ. v. Earls, 536 U.S. 822 (2002) (No. 01-332).
6. See Laurence Claus, Montesquieu's Mistakes and the True Meaning of Separation, 25 OXFORD J. LEGAL STUD. 419, 426 (2005) ("Montesquieu did not question the prevailing orthodoxy that ultimate sovereign power could not be divided without risking chaos.").
7. See THE FEDERALIST NO. 51, at 320 (James Madison) (Clinton Rossiter ed., 2003) ("In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.");
8. id. No. 26, at 168 (Alexander Hamilton) ("State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government" may serve not only as the "VOICE, but, if necessary, the ARM of their discontent.");
9. see generally Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Cm. L. REV. 1484 (1987)
10. (reviewing RAOUL BERGER, THE FOUNDERS' DESIGN (1987) (discussing arguments supporting retention of state sovereignty)).
11. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
12. See GLENDON, supra note 3, at xi.
13. See, e.g., John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 105 (1999) (noting that "the rhetoric of constitutional rights is often absolutist");
14. Thomas W. Joo, The Modern Corporation and Campaign Finance: Incorporating Corporate Governance Analysis into First Amendment Jurisprudence, 79 WASH. U. L.Q. 1, 87 (2001) (noting the "absolutist rhetoric of rights" in the context of free speech);
15. Christopher H. Schroeder, Rights Against Risks, 86 COLUM. L. REV. 495, 525 (1986) (discussing the "rhetoric of absolute rights and rights as trumps");
16. Spencer Weber Waller, Market Talk: Competition Policy in America, 22 LAW & Soc. INQUIRY 435, 444 (1997) (describing a "First Amendment rhetoric of absolute rights");
17. Audrey Knight, Note, Redefining Punishment for Students: Nevares v. San Marcos I.S.D., 20 REV. LITIG. 777, 783 (2001) (describing the "rhetoric of absolute, inviolable rights" regarding procedural due process);
18. Note, Toward Reasonable Equality: Accommodating Learning Disabilities Under the Americans with Disabilities Act, 111 HARV. L. REV. 1560, 1561, 1575 (1998) (describing the "absolutist civil rights rhetoric" surrounding the ADA and the "absolutist rhetoric of the Equal Protection Clause itself).
19. See supra note 9.
20. U.S. CONST, amend. VIII.
21. Id. amend. VI (emphasis added).
22. Id. amend. I (emphasis added).
23. Id. amend. IV.
24. Id. amend. VIII.
25. Abraham Lincoln, Address at Cooper Institute, New York City (Feb. 27, 1860), in SPEECHES AND WRITINGS, 1859-1865 120 (Don E. Fehrenbacher ed., 1989) [hereinafter SPEECHES AND WRITINGS].
26. Cf. GLENDON, supra note 3, at 43 ("[T]he starkness of some of the language in the Bill of Rights has helped to legitimate intemperate arguments made by those who have a particular attachment to one of the rights framed in such terms.").
27. See Hugo L. Black & Edmond Cahn, Justice Black and First Amendment "Absolutes ": A Public Interview, 37 N.Y.U. L. REV. 549, 553 (1962) (remarks of Justice Hugo Black)
28. see also Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring) ("I read 'no law ⋯ abridging' to mean no law abridging.") (omission in original).
29. Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. REV. 865, 867, 870-74 (1960);
30. see also Beauhamais v. Illinois, 343 U.S. 250, 274-75 (1952) (Black, J., dissenting).
31. See Black, supra note 19, at 877-80.
32. See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF- GOVERNMENT 17 (1948) ("The phrase, 'Congress shall make no law ⋯ abridging the freedom of speech, ' is unqualified. It admits of no exceptions.") (omission in original).
33. THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 17 (1970).
34. See GLENDON, supra note 3, at 20-46;
35. LAURA S. UNDERKUFFLER, THE IDEA OF PROPERTY: ITS MEANING AND POWER 11 (2003).
36. See, e.g., JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 8-14 (C.B. Macpherson ed., Hackett Publishing Co. 1980) (1690).
37. See id. at Although their theories are not based on natural rights, utilitarians have made comparable arguments.
38. See JOHN STUART MILL, ON LIBERTY 81 (David Bromwich & George Kateb eds., 2003) (1921) (stating that an individual has an "absolute" right in what "merely concerns himself). Modern libertarians also make similar absolutist claims.
39. See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 172 (1974) (endorsing "the classical liberals' notion of self-ownership" and arguing that taxation was morally impermissible insofar as it gave society a partial property right in another person and his labor).
40. LOCKE, supra note 24, at 19.
41. See id. at 19-20.
42. WILLIAM BLACKSTONE, 1 COMMENTARIES *138-39 (emphasis added). Although Blackstone was English, his ideas about property were quite thoroughly incorporated into American law and welcomed into American rhetoric.
43. See GLENDON, supra note 3, at 23 ("Blackstone's Commentaries was the law book in the United States in the crucial years immediately preceding and following the American Revolution.. Blackstone's work was much more fully absorbed into legal thinking here [in America] than in England..").
44. See Joan Williams, The Rhetoric of Property, 83 IOWA L. REV. 277, 282 (1998);
45. see also Bret Boyce, Property as a Natural Right and as a Conventional Right in Constitutional Law, 29 LOY. L.A. INT'L & COMP. L. REV. 201 (2007) (tracing the evolution of the absolutist rhetoric of property).
46. See, e.g., GLENDON, supra note 3, at 19;
47. Williams, supra note 29, at 283.
48. GLENDON, supra note 3, at 31.
49. Id.
50. See 397 U.S. 254, 262 n.8 (1970);
51. see also Charles A. Reich, The New Property, 73 YALE L.J. 733, 787 (1964)
52. - 545 U.S. 469 (2005).
53. The Fifth Amendment states: "[N]or shall private property be taken for public use, without just compensation." U.S. CONST, amend. V.
54. Kelo, 545 U.S. at 510 (Thomas, J., dissenting).
55. Emily Jane Dodds, Note, I'll Make You a Deal: How Repeat Informants Are Corrupting the CriminalJustice System and What to Do About It, 50 WM. & MARY L. REV. 1063, 1064 (2008).
56. U.S. CONST, amend. VI (emphasis added).
57. - 372 U.S. 335, 344 (1963).
58. Edward M. Kennedy, The Promise of Equal Justice, CHAMPION, Jan.-Feb. 2003, at 22, AVAILABLE http://www.rwcdl.org/public.nsf/chanmpionarticles/ A0301p22?OpenDocument.
59. See, e.g., AM. BAR ASS'N STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, Gideon's BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE ii (2004), available at http://www.abanet.org/legalservices/sclaid/ defender/brokenpromise/fullreport.pdf ("The right to counsel is one of the most sacred principles enshrined in our nation's constitution.").
60. ANTHONY LEWIS, GIDEON'S TRUMPET 205 (1964).
61. See GLENDON, supra note 3, at 1-17.
62. See Larry R. Churchill & Jos6 Jorge Siman, Abortion and the Rhetoric of Individual Rights, HASTINGS CENTER REP., Feb. 1982, at 9, 9-12.
63. See, e.g., National Right to Life, What is the Pro-Life Response to Abortionists' Claims?, http://www.nrlc.org/abortion/facts/abortionresponses.html ("Every mother is faced with profound decisions to make for herself and her child but these decisions can never include the right to kill her baby.").
64. See, e.g., NARAL Pro-Choice America, Learn about NARAL Pro-Choice America, http://www.prochoiceamerica.org/about-us/leam-about-us/
65. U.S. CONST, amend. XIV, § 1.
66. John Mercer Langston, Citizenship and the Ballot, Address Before the Colored Men's Convention of Indiana (Oct. 25, 1865), in JOHN MERCER LANGSTON, FREEDOM AND CITIZENSHIP: SELECTED LECTURES AND ADDRESSES 99 (1883).
67. Barbier v. Connolly, 113 U.S. 27, 31 (1885).
68. See, e.g., Access, Equity, and Diversity: American Association for Affirmative Action, http://affirrnativeaction.org/about.html.
69. See, e.g., Adversity .Net, http://www.adversity.net/about-us.htm.
70. See LAWRENCE M. FRIEDMAN, TOTAL JUSTICE 43 (1985).
71. Id. See LAWRENCE M. FRIEDMAN, TOTAL JUSTICE 43 (1985).
72. - 5 U.S. (1 Cranch) 137, 163 (1803) (internal quotations omitted).
73. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1426- 29(1987).
74. Jeffries, supra note 9, at 87.
75. See WILLIAM BLACKSTONE, 3 COMMENTARIES *129 (calling the writ "the most celebrated writ in the English law");
76. see also WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 3 (1980) (describing it as the "great writ of liberty").
77. A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 195 (6th ed. 1902).
78. THE FEDERALIST, supra note 6, No. 84, at 511 (Alexander Hamilton).
79. - 372 U.S. 391, 401-02 (1963) (emphasis added)
80. Overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977).
81. Brown v. Allen, 344 U.S. 443, 512 (1953) (Frankfurter, J., concurring).
82. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
83. Deborah Price, Life, Liberty and the Pursuit of Happiness, BELIEFNET (July 4, 2009), http://blog.beliemet.com/yourdailyspiritualstimulus/2009/07/ life-liberty-and-m happiness.html.
84. Abraham Lincoln, Speech at Independence Hall, Philadelphia, Pa. (Feb. 22, 1861), in SPEECHES AND WRITINGS, supra note 16, at 213-14.
85. For example, the government could limit a nonviolent protest at a jail, see Adderley v. Florida, 385 U.S. 39 (1966), or restrict the public display of a jacket bearing an offensive message
86. see Cohen v. California, 403 U.S. 15, 27 (1971) (Blackmun, J., dissenting) (Black, J., joining in dissent) ("Cohen's absurd and immature antic, in my view, was mainly conduct and little speech.").
87. See EMERSON, supra note 22, at 17.
88. See MEIKLEJOHN, supra note 21, at 18-19.
89. Boyce, supra note 29, at 227.
90. BLACKSTONE, supra note 28, at *138.
91. WILLIAM BLACKSTONE, 2 COMMENTARIES *2.
92. See FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 13 (1985) ("Blackstone's sweeping definition of the right of property overstated the case; indeed, he devoted the succeeding 518 pages of Book 2 of his Commentaries to qualifying and specifying the exceptions to his definition.");
93. see also David B. Schorr, How Blackstone Became a Blackstonian, 10 THEORETICAL INQUIRIES L. 103, 107 (2009) (describing Blackstone's "500-page survey of English property law" as containing "doctrines of a particular cast: at every turn, on every page, less-than-absolute property rights are explicated, delimited and qualified.").
94. Boyce, supra note 29, at 226-27.
95. See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1778 (1991).
96. See Paul Gewirtz, Remedies and Resistance, 92 YALE L.J. 585, 602 (1983) ("Some costs obviously play a role in defining the content of the right itself. [C]ompeting interests are afforded a second veto at the remedy stage, after a violation of constitutional right is shown.").
97. U.S. CONST, amend. I ("Congress shall make no law abridging the freedom of speech.").
98. Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 482 (2007) ("Our jurisprudence over the past 216 years has rejected an absolutist interpretation of [the First Amendment].");
99. see also Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) ("[W]e reject the view that freedom of speech . . . [is] 'absolute[], ' not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.").
100. Konigsberg, 366 U.S. at 50.
101. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
102. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam).
103. Chaplinsky, 315 U.S. at 572.
104. Virginia v. Black, 538 U.S. 343, 359 (2003).
105. Roth v. United States, 354 U.S. 476, 485 (1957).
106. New York v. Ferber, 458 U.S. 747, 763 (1982).
107. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562-63 (1980) ("The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression."). For a discussion of the distinction between the coverage of a right and the protection it affords
108. see FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 89-92(1982).
109. R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (describing content-based regulations as "presumptively invalid").
110. Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647-48 (1981) (noting that the Court has "often approved" time, place, and manner restrictions) (internal quotation omitted).
111. United States v. O'Brien, 391 U.S. 367, 377 (1968) (subjecting such regulations to intermediate scrutiny).
112. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 49 (1983) (allowing such exclusions as long as the government's action is reasonable and viewpoint neutral).
113. Morse v. Frederick, 551 U.S. 393, 409 (2007) (upholding regulations of speech that promotes illegal drug use);
114. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (upholding regulations of speech that bears a school's imprimatur);
115. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding regulations of lewd speech).
116. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
117. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (providing no First Amendment protection for public employees who are disciplined in reaction to statements made "pursuant to their official duties");
118. Connick v. Myers, 461 U.S. 138, 147 (1983) (providing no First Amendment protections for public employees who are disciplined in reaction to statements made regarding personal, rather than public, matters).
119. Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981).
120. U.S. CONST, amend. I ("Congress shall make no law prohibiting the free exercise [of religion].").
121. Reynolds v. United States, 98 U.S. 145, 167 (1878).
122. Id. 98 U.S. 145, 167 (1878).
123. United States v. O'Brien, 391 U.S. 367, 377 (1968) (subjecting such regulations to intermediate scrutiny).
124. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 49 (1983) (allowing such exclusions as long as the government's action is reasonable and viewpoint neutral).
125. Morse v. Frederick, 551 U.S. 393, 409 (2007) (upholding regulations of speech that promotes illegal drug use);
126. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (upholding regulations of speech that bears a school's imprimatur);
127. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding regulations of lewd speech).
128. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
129. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (providing no First Amendment protection for public employees who are disciplined in reaction to statements made "pursuant to their official duties");
130. Connick v. Myers, 461 U.S. 138, 147 (1983) (providing no First Amendment protections for public employees who are disciplined in reaction to statements made regarding personal, rather than public, matters).
131. Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 647 (1981).
132. U.S. CONST, amend. I ("Congress shall make no law prohibiting the free exercise [of religion] ").
133. Reynolds v. United States, 98 U.S. 145, 167 (1878).
134. Id. at 166.
135. From 1963 until 1990, the Supreme Court interpreted the Free Exercise Clause to bar government from burdening religious conduct unless its actions were justified by a "compelling state interest" not served by "alternative forms of regulation."
136. Sherbert v. Vemer, 374 U.S. 398, 403, 407 (1963) (internal quotation omitted). The Court abandoned that test as applied to neutral laws of general applicability
137. Employment Division v. Smith, 494 U.S. 872, 879 (1990).
138. Smith, 494 U.S. at 877 ("The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.").
139. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993) (subjecting such laws to strict scrutiny).
140. Smith, 494 U.S. at 879 ("[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).") (internal quotation omitted).
141. Id at 890.
142. - 42 U.S.C. §§ 2000bb-2000bb-4 (2006) (held to be unconstitutional as applied to the states in City
143. Boerne v. Flores, 521 U.S. 507, 536 (1997).
144. § 2000b (5) (emphasis added).
145. §2000bb-l.
146. City of Boerne, 521 U.S. at 536 (ruling that the statute exceeded Congress's powers under Section Five of the Fourteenth Amendment). The Supreme Court has not ruled explicitly on whether the statute is constitutional as applied to the federal government, but it did apply the statute to a federal drug statute without raising any constitutional concerns.
147. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006).
148. - 42 U.S.C. §§ 2000cc-2000cc-5 (2006). In addition, several state legislatures have passed their own "mini-RFRAs, " and some state supreme courts have interpreted their state constitutions to require the compelling interest test.
149. See MICHAEL W. MCCONNELL ET AL., RELIGION AND THE CONSTITUTION 161 (2d ed. 2006).
150. O Centro, 546 U.S. at 421.
151. Cutter v. Wilkinson, 544 U.S. 709, 722 (2005).
152. U.S. CONST, amend. XIV, § 1 ("No state shall deny to any person within its jurisdiction the equal protection of the laws.").
153. Virginia v. Rives, 100 U.S. 313, 318 (1879) ("The provisions of the Fourteenth Amendment of the Constitution all have reference to State action exclusively, and not to any action of private individuals."). The state action requirement limits all the rights contained in the Constitution except that in the Thirteenth Amendment.
154. See, e.g., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438 (1968) (explaining that the Thirteenth Amendment reaches private and public action). There are exceptions to the state action requirement, however.
155. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (creating a two-part test for determining when private action can be attributed to the state).
156. Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974);
157. see also Civil Rights Cases, 109 U.S. 3, 17 (1883) ("The wrongful act of an individual, unsupported by any [state] authority, is simply a private wrong. . . ."). Congress has, of course, reached some types of private discrimination through statute.
158. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17(2006).
159. United States v. Morrison, 529 U.S. 598, 621 (2000).
160. Lugar, 457 U.S. at 936 ("[T]he 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.").
161. Washington v. Davis, 426 U.S. 229, 239 (1976). To be sure, Congress has imposed disparate-impact liability on private and public employers.
162. - 42 U.S.C. § 2000e-2(kXl)(A) (2006) (codifying disparate-impact liability);
163. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) (interpreting the Civil Rights Act of 1964 to impose disparate-impact liability). But the Supreme Court has not yet decided whether doing so is consistent with equal protection.
164. Ricci v. DeStefano, 129 S. Ct. 2658, 2681-82 (2009) (Scalia, J., concurring) (noting that the Supreme Court has "merely postpone[d] the evil day on which [it] will have to confront the question").
165. Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added) (internal quotations omitted).
166. Davis, 426 U.S. at 248
167. GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 501 (5th ed. 2005).
168. See, e.g., Williamson v. Lee Optical, 348 U.S. 483, 489 (1955). The Court has, however, applied rational basis review with bite on a few occasions.
169. See Romer v. Evans, 517 U.S. 620, 632 (1996);
170. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 435 (1985);
171. Zobel v. Williams, 457 U.S. 55, 61-62 (1982);
172. U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
173. See, e.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
174. See Craig v. Boren, 429 U.S. 190, 197 (1976) ("[Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.");
175. see also United States v. Virginia, 518 U.S. 515, 531 (1996) ("Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action."). Intermediate scrutiny also applies to classifications based on illegitimacy
176. Clark v. Jeter, 486 U.S. 456, 461 (1988), and the illegal alien status of students
177. Plyler v. Doe, 457 U.S. 202, 224 (1982).
178. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("[Racial] classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.").
179. Grutter v. Bollinger, 539 U.S. 306, 326 (2003) ("Strict scrutiny is 'not strict in theory, but fatal in fact.'").
180. In another line of cases, the Supreme Court recognized certain fundamental rights under the Equal Protection Clause.
181. See, e.g., Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668 (1966) (voting);
182. Douglas v. California, 372 U.S. 353, 357 (1963) (counsel on first criminal appeal);
183. Griffin v. Illinois, 351 U.S. 12, 19 (1956) (trial transcripts on criminal appeal);
184. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (right to procreate). The Court declined, however, to extend this strand of equal protection doctrine to positive entitlements such as welfare, housing, and education.
185. Dandridge v. Williams, 397 U.S. 471, 485 (1970) (welfare);
186. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (housing);
187. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973) (education). Drawing a line in the sand, it reasoned that the Equal Protection Clause only covers those fundamental rights "explicitly or implicitly guaranteed by the Constitution, " not those which, in the Court's subjective judgment, were of "relative social significance."
188. Rodriguez, 411 U.S. at 33-34.
189. U.S. CONST, amend. VI (emphasis added).
190. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
191. See generally LEWIS, supra note 42.
192. Other Sixth Amendment guarantees are similarly qualified in practice. For example, the Confrontation Clause, which grants a criminal defendant the right "to be confronted with the witnesses against him, " U.S. CONST, amend. VI, is limited.
193. See, e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004) (not subjecting nontestimonial hearsay to the full demands oi the Confrontation Clause);
194. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (recognizing the "wide latitude" of trial judges to impose limits on cross-examination);
195. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (explaining that the Confrontation Clause guarantees the opportunity for effective cross-examination but not effective cross examination itself).
196. Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (plurality opinion).
197. United States v. Gouveia, 467 U.S. 180, 187 (1984).
198. Kirby v. Illinois, 406 U.S. 682, 690 (1972) (plurality opinion).
199. Rothgery v. Gillespie County, 128 S.Ct. 2578, 2591 (2008).
200. Id. at 2591 n.16 (internal citations omitted).
201. United States v. Ash, 413 U.S. 300, 321 (1973).
202. See Strickland v. Washington, 466 U.S. 668, 688 (1984).
203. To prove ineffective assistance of counsel, the defendant must show both that: (1) "counsel's representation fell below an objective standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
204. Strickland, 466 U.S. at 688, 694.
205. United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) ("[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.").
206. See Wheat v. United States, 486 U.S. 153, 159 (1988) ("[A] defendant may not insist on representation by an attorney he cannot afford.");
207. see also Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)
208. Powell v. Alabama, 287 U.S. 45, 71 (1932) (holding for the first time that states were required to provide counsel to defendants facing the possibility of death sentences).
209. Plessy v. Ferguson, 163 U.S. 537 (1896).
210. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (internal quotation omitted).
211. Fallon & Meltzer, supra note 73, at 1778 (explaining that Marbury's "ideal is not always attained").
212. Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
213. Teague v. Lane, 489 U.S. 288, 310 (1989)
214. Whorton v. Bockting, 549 U.S. 406, 416 (2007) (internal quotations omitted).
215. See Butler v. McKellar, 494 U.S. 407, 415 (1990) (explaining that a rule can be "new" law despite the fact that the Court previously described it as being "controlled" by prior precedent).
216. - 28 U.S.C. § 2254(d)(1) (2006). The statute allows federal courts to grant relief to habeas petitioners held under state court judgments if those judgments were "contrary" to "clearly established Federal law, as determined by the Supreme Court." In addition, it provides that federal courts should not grant relief if a state court applied clearly established law in a way that may have been incorrect but was not "unreasonable."
217. Id. 28 U.S.C. (2006)
218. see Williams v. Taylor, 529 U.S. 362, 409 (2000) ("[A] federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable."). By establishing this deferential standard of review, the statute ensures that some violations of then-existing rights will go unaddressed as well.
219. Saffle v. Parks, 494 U.S. 484, 494-95 (1990) (quoting Teague, 489 U.S. at 311).
220. Although the issue was presented in a recent case, the Supreme Court resolved the case on narrower grounds and did not address it.
221. Whorton, 549 U.S. at 409.
222. See Danforth v. Minnesota, 552 U.S. 264, 279 (2008) (noting that non-retroactivity is justified by "comity and respect for the finality of state convictions").
223. Sawyer v. Smith, 497 U.S. 227, 234 (1990)
224. - 457 U.S. 800, 818 (1982).
225. See id. at 807 (citation omitted);
226. see also Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) ("Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.").
227. See Harlow, 457 U.S. at 818 ("Reliance on the objective reasonableness of an official's conduct. . should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.").
228. Until recently, courts were required to determine whether the defendant violated the victim's constitutional right before deciding whether the violated right was clearly established.
229. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Therefore, in the past, it was clear when, despite a rights violation, the victim was not entitled to compensation. Now, however, this order is not mandatory, and a court is permitted to use its discretion in deciding which issue to address first.
230. See Pearson, 129 S.Ct. at 813, In these cases, it is possible that a court would deny a remedy (by finding the right not clearly established) without making clear that the victim did, in fact, suffer a violation of her rights.
231. See, e.g., Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000);
232. Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997);
233. Magdziak v. Byrd, 96 F.3d 1045, 1047 (7th Cir. 1996);
234. Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir. 1991).
235. - 533 U.S. at 202.
236. Wilson v. Layne, 526 U.S. 603, 617 (1999).
237. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
238. Compare Wilson, 526 U.S. at 617 ("Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident, nor have they identified a consensus of cases of persuasive authority.")
239. with United States v. Lanier, 520 U.S. 259, 269 (1997) ("[Disparate decisions in various circuits] may be taken into account in deciding whether the warning is fair enough, without any need for a categorical rule that decisions of the Courts of Appeals and other courts are inadequate as a matter of law to provide it.").
240. See Hope v. Pelzer, 536 U.S. 730, 741 (2002).
241. See Lanier, 520 U.S. at 269-72.
242. See Malley v. Briggs, 475 U.S. 335, 341 (1986).
243. Id. 475 U.S. 335, (1986).
244. - 457 U.S. at 819.
245. See, e.g., Kay v. Bemis, 500 F.3d 1214, 1221 n.6 (10th Cir. 2007) (reliance on statute, regulation, or official policy);
246. Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227, 235-36 (1st Cir. 2007) (reliance on advice of counsel).
247. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
248. Chapman v. California, 386 U.S. 18, 24 (1967). The Court also recognizes a limited category of "structural" errors that are not subject to harmless error analysis because they infect the entire trial process.
249. Arizona v. Fulrninante, 499 U.S. 279, 309-10 (1991) (discussing this category).
250. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation omitted).
251. Fulrninante, 499 U.S. at 310 (holding that the admission of involuntary confessions was subject to harmless error analysis).
252. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
253. Id. 475 U.S. 673, (1986)
254. My argument should therefore be sharply distinguished from those of Professor Jonathan Bamett, who has argued that courts ought to consider directing a message of absolutism to the general public while at the same time sending "more subtle indications" of a cost-conscious willingness "to bend principles" to narrower audiences connected with the particular situations before them.
255. See Jonathan M. Barnett, Rights, Costs, and the Incommensurability Problem, 86 VA. L. REV. 1303, 1331 (2000) (book review).
256. Cf. LEARNED HAND, THE BILL OF RIGHTS 73 (1958) ("For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.").
257. See Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 YALE L.J. 1860, 1862 (1987) (noting "a charge from the right that rights promote conflict rather than community and a claim from the left that rights reinforce individualism at the expense of community").
258. GLENDON, supra note 3, at 14.
259. Id. at 45.
260. For further discussion of these themes, see MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (2d ed. 1998).
261. See STEPHEN HOLMES & amp; CASS R. SUNSTEIN, THE COST OF RIGHTS 97(1999) ("Rights are familiarly described as inviolable, preemptory, and conclusive. But these are plainly rhetorical flourishes.").
262. Id. at 98.
263. T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 957-59 (1987);
264. Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 25 HARV. L. REV. 489 (1912).
265. See HOLMES & amp; SUNSTEIN, supra note 176, at 98.
266. Sometimes referred to as "neorepublican." See, e.g., Rakove & Beaumont, supra note 2, at 1877.
267. ECONOMIC AND SOCIAL RIGHTS AND THE RIGHT TO HEALTH: AN INTERDISCIPLINARY DISCUSSION HELD AT HARVARD LAW SCHOOL, HARVARD LAW SCH. HUMAN RIGHTS. PROGRAM IN SEPT. 1993 7 (1995) (remarks of Michael Mandler), available at http://www.law.harvard.edu/programs/hrp/documents/ EconomicandSocialRightsandtheRighttoHealth.pdf.
268. Id. ECONOMIC AND SOCIAL RIGHTS AND THE RIGHT TO HEALTH: AN INTERDISCIPLINARY DISCUSSION HELD AT HARVARD LAW SCHOOL, HARVARD LAW SCH. HUMAN RIGHTS. PROGRAM IN SEPT. 1993 7 (1995)
269. See, e.g., Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1984) (arguing that rights are indeterminate abstractions).
270. See, e.g., Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 TEX. L. REV. 387, 391 (1984) ("As an analytical tool, the concept that women have rights seems powerful but in practice it turns out not to be helpful; it cannot answer any difficult questions.").
271. "Natural rights is simple nonsense: natural and imprescriptible rights (an American phrase), rhetorical nonsense, nonsense upon stilts.
272. See Natural Rights in 20 THE NEW ENCYCLOPEDIA BRITANNICA 657 (15th ed. 1993) (quoting Jeremy Bentham).
273. Cf. Joel Feinberg, The Nature and Value of Rights, 4 J. VALUE INQUIRY 243, 252 (1970) (arguing that a system of rights is necessary for recognition of individual dignity).
274. See HOLMES & amp; SUNSTEIN, supra note 176, at 123.
275. Id.
276. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion) (holding that ordinances prohibiting concentration of "adult" movie theaters and bookstores do not violate the First Amendment) ("But few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice.").
277. Gordon S. Wood, Rhetoric and Reality in the American Revolution, 23 WM. & MARY Q. 3, 19 (1966).
278. See Rakove & Beaumont, supra note 2, at 1866.
279. THE MAN WHO SHOT LIBERTY VALANCE (Paramount Pictures 1962) (statement of Mr. Scott, Editor of the Shinbone Star).
280. Cf. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 857 (1999) ("The right/remedy distinction in constitutional law serves to maintain the illusion that rights are defined by courts through a mystical process of identifying 'pure' constitutional values without regard to the sorts of functional, fact-specific policy concerns that are relegated to the remedial sphere.").
281. Charles L. Black, Jr., Mr. Justice Black, the Supreme Court, and the Bill of Rights, HARPER'S MAG., Feb. 1961, at 63
282. reprinted in CHARLES L. BLACK, THE OCCASIONS OF JUSTICE: ESSAYS MOSTLY ON LAW 89, 95-96 (1963).
283. Holmes and Sunstein do acknowledge this insight. See HOLMES & amp; SUNSTEIN, supra note 176, at 102-03 ("Perhaps a (misleading) emphasis on the absolute character of free speech will stiffen the spine of citizens when the pressure for (unjustified) censorship is especially great.").
284. See Barnett, supra note 170, at 1329-30.
285. See id. at 1330-31.
286. See supra notes 18-22 and accompanying text.
287. - 551 U.S. 449 (2007).
288. Id. at 482.
289. Id. (ellipsis in the original).
290. This metaphor is taken from Professor Frederick Schauer. "Wearing a suit of armor would protect me against arrows, knives, blackjacks, fists, and small bullets, and thus it is plain that wearing a suit of armor provides me with a degree of protection I would not otherwise have had, " he writes. "But that suit of armor does not protect me against large bore ammunition, bombs, or artillery fire and is as a result less than totally protective.
291. Frederick Schauer, A Comment on the Structure of Rights, 27 GA. L. REV. 415, 429 (1993). The protection a right affords may not be impregnable, but it must be significant if the right is to have meaning.
292. H.L.A. Hart, Bentham on Legal Rights, in OXFORD ESSAYS IN JURISPRUDENCE (SECOND SERIES) 171, 193 (A.W.B. Simpson ed., 1973).
293. See James Y. Stern, Property's Constitution 18 (2009) (unpublished, draft on file with the author).
294. Compare County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 590 (1989) ("Perhaps in the early days of the Republic [the words used in the First Amendment] were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to 'the infidel, the atheist, or the adherent of a non- Christian faith such as Islam or Judaism."')
295. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 594 (1851) (The "real object" of the First Amendment "was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects..").
296. See Steven G. Gey, More or Less Bunk: The Establishment Clause Answers that History Doesn't Provide, 2004 B.Y.U. L. REV. 1617, 1624 (2004) ("Modern paeans to religious ecumenicalism notwithstanding, this country has a long and sordid history of viewing some faiths as 'more equal' than others.").
297. See Louis MENAND, THE METAPHYSICAL CLUB (2001).
298. Id. at 441 ("The great movement to secure civil liberties in the United States during the Cold War arose out of a religious community, black Southern Baptists, and it was founded on the belief that every individual has an inalienable right to those freedoms by virtue of being human-precisely the individualism that [Oliver Wendell] Holmes and [John] Dewey felt they needed to discredit.").
299. See Henry Wiencek, Yale and the Price of Slavery, N.Y. TIMES, Aug. 18, 2001, atA15 ("If the founders had such misgivings over slavery, how is it that they allowed slavery to continue? The answer is not that they didn't know any better, but that they kept slavery so the Southern states would join the union. It was a transaction, a deal, just like the deal that put the national capital on the Potomac in exchange for the federal assumption of states' debts..").
300. Abraham Lincoln strenuously denied that the reference to "all men" being created equal in the Declaration of Independence was meant to exclude slaves. He assailed such a notion for "having a tendency to dehumanize the negro, to take away from him the right of ever striving to be a man." POLITICAL DEBATES BETWEEN ABRAHAM LINCOLN AND STEPHEN A. DOUGLAS 344 (1895). The founders laid the groundwork, he said, to put slavery on the course of "ultimate extinction."
301. Id. at He continued: It is not true that our fathers, as Judge [Stephen] Douglas assumes, made this government part slave and part free. Understand the sense in which he puts it. He assumes that slavery is a rightful thing within itself, -was introduced by the framers of the Constitution. The exact truth is, that they found the institution existing among us, and they left it as they found it. But in making the government they left this institution with many clear marks of disapprobation upon it.
302. Id. at 347;
303. see also HARRY V. JAFFA, A NEW BIRTH OF FREEDOM 265 (2000) (attributing to Lincoln the view that because of the power of the federal government to arrest the spread of slavery, the Constitution's compromise on the issue of slavery was ultimately "in the interest of the slaves themselves.").
304. Anne-Marie Slaughter, America Is Failing to Honor Its Own Codes: Hubris and Hypocrisy, INT'L HERALD TRIB., May 22, 2004, at 4.
305. Id. Anne-Marie Slaughter, America Is Failing to Honor Its Own Codes: Hubris and Hypocrisy, INT'L HERALD TRIB., May 22, 2004, at 4.
306. DOUGLAS S. MASSEV & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 212 (1993).
307. See Brief for American Civil Liberties Union et al. as Amici Curiae in Support of Appellees, Wallace v. Jaffree, 472 U.S. 38 (1985) (Nos. 83-812, 83-929).
308. See Brief for Am. Booksellers Ass'n, Inc. et al. as Amici Curiae Supporting Respondents, New York v. Ferber, 458 U.S. 747 (1982) (No. 81-55) (joined by the American Civil Liberties Union).
309. See Brief of Respondent, Morse v. Frederick, 551 U.S. 393 (2007) (No. 06-278) (filed by the ACLU Foundation, among others).
310. Peter Singer, America the Hypocritical, PROJECT SYNDICATE, Feb. 14, 2007, http://www.project-syndicate.org/commentary/singer20.
311. Amar, supra note 55, at 1427.
312. - 410 U.S. 113, 152-54(1973).
313. See, e.g., Roe v. Butterworth, 958 F.Supp. 1569, 1571 (S.D. Fla. 1997)
314. qffd, 129 F.3d 1221 (11th Cir. 1997) (per curiam);
315. cf Margo St. James, The Reclamation of Whores, in GOOD GIRLS/BAD GIRLS: FEMINISTS AND SEX TRADE WORKERS FACE TO FACE 84 (Laurie Bell ed., 1987).
316. Jonathan P. Decker, Ex-Call Girl Tries to Legalize Prostitution, Citing Roe v. Wade, CHRISTIAN SCIENCE MONITOR, Aug. 25, 1995, at 3.
317. As the Florida ACLU, which supported her case, put it, "The right to privacy should afford an individual the right to exploit their body for monetary gain. . . Football players do it, boxers do it. Why can't a prostitute?" Id.
318. See, e.g., LaRue v. United States, 959 F. Supp. 957, 959 (CD. 1997) (finding plaintiffs' claim that income taxes violate the Thirteenth Amendment "absurd").
319. See, e.g., Roy Lucas, From Patsone &Miller to Silveira v. Lockyer: To Keep and Bear Arms, 26 T. JEFFERSON L. REV. 257, 275, 293 (2004) (stating that "[t]here is a fundamental Second Amendment right to keep and bear arms, expressed by the Founders in relatively absolute terms" and criticizing decision to allow mandatory registration of sawed-off shotguns in United States v. Miller, 307 U.S. 174 (1939)).
320. See, e.g., Harding v. County of Door, 870 F.2d 430, 432 (7th Cir. 1989) ("We conclude by reminding potential litigants that the federal courts are ordinarily not vehicles to review zoning board decisions.").
321. See Maher v. Roe, 432 U.S. 464, 467 (1977).
322. See Larry A. Alexander, Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory, 44 HASTINGS L.J. 921, 929 (1993) (observing that "all laws affect what gets said, by whom, to whom, and with what effect.") (emphasis omitted).
323. This example is taken from Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 772 (2001).
324. See Anthony Jackson, Action for Wrongful Life, Wrongful Pregnancy, and Wrongful Birth in the United States and England, 17 LOY. L.A. INT'L &COMP. L.J. 535, 569 (1995) ("It is no easier to return the plaintiffs negligently crushed left arm than it is to return him to oblivion. Tort damages are only 'compensatory' to the extent that they award monetary remedies to someone who has suffered a wrong.");
325. Steven D. Smith, the Critics and the "Crisis": A Reassessment of Current Conceptions of Tort Law, 72 CORNELL L. REV. 765, 787 (1987) (arguing that the '"make whole'" principle on which compensation for tort injuries is founded is a "manifestly unachievable goal");
326. see also Cowe ex rel. Cowe v. Forum Group, Inc., 575 N.E.2d 630, 634 (Ind. 1991) (discussing "the impossibility of calculating compensatory damages to restore a birth defective child to the position he would have occupied were it not for the defendant's negligence").
327. Roper v. Simmons, 543 U.S. 551, 577-78 (2005).
328. See Griffin v. California, 380 U.S. 609, 615 (1965).
329. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in result) ("We are not final because we are infallible, but we are infallible only because we are final.").
330. New York v. Ferber, 458 U.S. 747, 762 (1982).
331. WILLIAM BLACKSTONE, 2 COMMENTARIES, supra note 70, at *2;
332. see supra notes 71- 73 and accompanying text.
333. WILLIAM BLACKSTONE, 3 COMMENTARIES &z.ast;For a thoughtful discussion of how to reconcile "Blackstonian" conceptions of absolute property rights with the sic utere maxim
334. see Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 1002-04(2004).
335. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 871 (1992).
336. See Pruneyard Shopping Or. v. Robins, 447 U.S. 74, 82-83 (1980).
337. See Locke v. Davey, 540 U.S. 712, 718 (2004) (acknowledging that the Free Exercise and Establishment Clauses of the First Amendment "are frequently in tension" but that "there is room for play in the joints between them.") (internal quotations omitted).
338. See Ne. Press Ass'n v. Stuart, 427 U.S. 539, 547-48 (1976).
339. Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932, 957 (1919).
340. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 392 (1926) (noting a municipality's power to promote the "health, morals, safety and general welfare of the community").
341. See Grutter v. Bollinger, 539 U.S. 306, 328 (2003) (noting that some language in prior opinions might have suggested that "remedying past discrimination is the only permissible justification for race-based governmental action").
342. See Miranda v. Arizona, 384 U.S. 436 (1966).
343. See Jeffries, supra note 9, at 98.
344. See id. at 98-99 (discussing application of since-abandoned non-retroactivity doctrine and opining that the ruling would not have been issued if it were required to have retroactive effect). Miranda was explicitly held to have purely prospective relief in Johnson v. New Jersey, 384 U.S. 719, 732 (1966). The Supreme Court noted that a contrary decision "would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards."
345. Id. at 731.
346. Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
347. See Chambers v. Ormiston, 935 A.2d. 956 (R.I. 2007) (holding that a Rhode Island family court's authority to divorce married couples does not extend to same-sex marriages conducted in Massachusetts);
348. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283(2) (1971) ("A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.");
349. see also Andrew Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 TEX. L. REV. 921, 946 (1998) (discussing extent of interstate recognition of marriages alleged to violate local policies respecting mental capacity, polygamy, incest, and, at one time, miscegenation).
350. The Constitution may restrict the jurisdiction of a court to hear a claim. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The doctrine of sovereign immunity limits suits against states in both federal and state courts.
351. See Alden v. Maine, 527 U.S. 706 (1999);
352. Edelman v. Jordan, 415 U.S. 651 (1974). Other provisions, such as the Due Process Clause, prevent adjudication of a plaintiffs claim if jurisdiction over the defendant's person cannot be obtained.
353. See Pennoyer v. Neff, 95 U.S. 714 (1877).
354. See Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982) (reasoning that public officials should be shielded from liability for rights violations that are not clearly established, even where malice is alleged, because inquiries into subjective good faith can be "peculiarly disruptive of effective government").
355. See Alden, 527 U.S. at 709 (arguing that the doctrine of state sovereign immunity protects states from suits that "may threaten their financial integrity" and whose satisfaction may necessitate "the most sensitive and political of judgments" regarding "access to the public fisc").
356. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 149 (1921) (stating that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.");
357. see also Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing risk of erroneous deprivation of right against cost of implementing more protective procedures for Due Process purposes).
358. See Dennis v. United States, 341 U.S. 494, 521 (1951) (Frankfurter, J., concurring in the judgment) (upholding conviction of communist party organizers and rejecting absolutist approach to the First Amendment because "[s]uch literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future.").
359. See Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940) (opinion of Frankfurter, J.) (rejecting claim that First Amendment requires that public school students raising religious objection be excused from compulsory flag salute);
360. see also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (rejecting claim that First Amendment requires that public school students be permitted to abstain from compulsory flag salute on freedom of speech grounds).
361. Frankfurter's hesitance to hold racial segregation in public schools unconstitutional has been documented in a number of sources. See Michael J. Klarman, Civil Rights Law: Who Made It and How Much Did It Matter?, 83 GEO. L.J. 433, 438, 440, 442-43 (1994)
362. MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT 1936-61 (1994)) (characterizing Frankfurter's initial stance on the matter as "intensely ambivalent" and describing Frankfurter's claim to have "filibustered" a decision in Brown during the 1952 term in order to prevent a ruling that desegregation was unconstitutional);
363. see also Memorandum of William O. Douglas (Jan. 25, 1960), in THE DOUGLAS LETTERS: SELECTIONS FROM THE PRIVATE PAPERS OF JUSTICE WILLIAM 0. DOUGLAS 169 (Melvin I. Urofsky ed., 1987) (claiming that Justice Frankfurter had stated in 1960 that he would have upheld school segregation if the issue had reached the Court in the 1940s because '"public opinion had not then crystallized against it'").
364. LE Due DE LA ROCHEFOUCAULD, MAXIMS 65 (Kenneth Pratt trans., Haworth Press 1931) (1678).
365. See F. SCOTT FITZGERALD, THE GREAT GATSBY 144 (Ruth Prigozy ed., Oxford Univ. Press 1998) (1925).
366. Cass R. Sunstein &Randy E. Barnett, Constitutive Commitments and Roosevelt's Second Bill of Rights: A Dialogue, 53 DRAKE L. REV. 205, 215 (2005). The rhetorical focus of Sunstein's critique is manifest. He takes issue with the practices of "endorsing], " "claim[ing], " "insisting], " "complain[ing], " "urg[ingj, " "object[ing], " and "argu[ing]" in connection with various aspects of rights.
367. Id. at 215-16.
368. Id. at 215.
369. Admittedly, there is a certain coalescence between critics of rights rhetoric and critics of rights practices. Some, if not all, critics of the rhetoric of rights seek to see it changed because of its effect on rights practices. Similarly, critics of our practices often seek to impose a particular interpretation upon the rhetoric of rights, which might be re-characterized as altering the rhetoric itself. That Sunstein and Slaughter both advocate positive conceptions of rights is a testament to this reality. But regardless of the direction from which the issue is approached, the underlying assumption is that rhetoric and practice must match.
370. Slaughter, supra note 210, at 4.
371. Id.
372. Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
373. See Palko v. Connecticut, 302 U.S. 319, 325 (1937).
374. Frederick Jackson Turner, The Significance of the Frontier in American History (1893), reprinted in REREADING FREDERICK JACKSON TURNER 59 (John Mack Faragher ed., 1994).
375. JOHN F. KENNEDY, THE STRATEGY OF PEACE 7-8 (Allan Nevins ed., 1960).
376. RICHARD E. MORGAN, DISABLING AMERICA: THE "RIGHTS INDUSTRY" IN OUR TIME 193 (1984).
377. Id.
378. See Harlan F. Stone, The Common Law in the United States, 50 HARV. L. REV. 4, 20 (1936).
379. See RUDOLPH VON IHERING, LAW AS A MEANS TO AN END [DER ZWECK IM RECHT] (Isaac Husik trans., 1924) (1883);
380. ROSCOE POUND, JURISPRUDENCE 15 (1959) (discussing Ihering's theory of interests).
381. See Roscoe Pound, Interests in Personality, 28 HARV. L. REV. 343, 343, 349 (1915) (stating that "[a] legal system attains its end by recognizing certain interests" and that the aim of the law "ultimately is not to balance individual interests and social interests, but to balance this social interest with other social interests and to weigh how far securing this or that individual interest is a suitable means of achieving the result which such a balancing demands.").
382. For Justice Stone's embrace of this outlook, see Symposium Transcript, Biographies of Titans: Holmes, Brandeis, and Other Obsessions, 70 N.Y.U. L. REV. 677, 680 (1995) (remarks of Robert Post) (opining that the "most modernist" Supreme Court Justice during the 1920s is Justice Stone, not Justices Oliver Wendell Holmes or Louis Brandeis, and citing as evidence his interest-balancing approach to dormant commerce clause cases);
383. see also Aleinikoff, supra note 178, at 963-64 (stating that Stone applied the new methodology of balancing "with creativity and vigor" in a variety of fields of constitutional law).
384. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
385. WALT WHITMAN, Song of Myself, in LEAVES OF GRASS 113 (Modern Library 1993) (1892) ("Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.)").