Are constitutional rights personal?

Legal Theory

Volumn 6, Issue 4, 2000, Pages 405-422

  Meyer, Linda Ross ^a  

^a Quinnipiac Law School   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84920991922     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s135232520006403x     Document Type: Article

References (47)

1. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998); Matthew D. Adler, Personal Rights and Rule-Dependence: Can the Two Coexist?, 6 LEGAL THEORY (present issue).
2. For an account of will and interest theories, see Matthew H. Kramer, N.E. Simmonds, & Hillel Steiner, A DEBATE OVER RIGHTS (1998). See also, Linda Ross Meyer, Unruly Rights (forthcoming).
3. See Linda Ross Meyer, When Reasonable Minds Differ, 71 N.Y.U. L. REV. 1467, 1470 (1996), and works cited therein.
4. For a fuller account of respect-rights, see Meyer, When Reasonable Minds Differ note 2.
5. See Hoyt v. Florida, 368 U.S. 57 (1961) (upholding statute allowing women, but not men, to “volunteer” for jury service), overruled by Taylor v. Louisiana, 419 U.S. 522 (1975). For other examples of more-choice-is-not-better, see Jennifer Gerarda Brown, The “Sophie's Choice” Paradox and the Discontinuous Self: Two Comments on Wertheimer, 74 DENV. U. L. REV. 1255 (1997).
6. W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 9, at 40 (5th ed. 1984).
7. See the persuasive discussion in Robert Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 CAL. L. REV. 957, 974 (1989); Robert Post, CONSTITUTIONAL DOMAINS 51-88 (1995).
8. Sipple v. Chronicle, 154 Cal. App. 3d 1040, 201 Cal. Rptr. 665 (1984); Diaz v. Oakland Tribune, 139 Cal. App. 3d 118, 188 Cal. Rptr. 762 (1983).
9. In Sipple, the court noted that the plaintiff was already “out,” and so held that the facts were not private. However, its alternative holding was that Sipple's homosexuality was “of legitimate public concern” even if it were private. The determination of “legitimate public concern” depended crucially on the context and intent of the revelation.
10. Sipple noted that the defendants “were prompted by legitimate political considerations,” 154 Cal. App. 3d at 1049, 201 Cal. Rptr. at 670, while Diaz declaimed that defendant's “attempt at humor at Diaz's expense removes all pretense that the article was meant to educate the reading public.” 139 Cal. App. 3d at 135, 188 Cal. Rptr. at 773.
11. While I would argue that the reason we allow such challenges is to protect dignity, the Court has been rathermore chary. In Pierre v. United States, 319 U.S. 41, 43 (1943) (per curiam), the Court disavowed that any mere “moral stigma” of a conviction could be cognizable harm that would override a mootness objection when the sentence had already been served. But in Sibron v. New York, 392 U.S. 40 (1968), the Court held it would “presume” that a conviction had collateral consequences beyond moral stigma that would allow a petitioner to challenge an old conviction. Recent cases have refused to extend the “presumption” to parole revocation, requiring, again, more than “mere moral stigma,” see Spencer v. Kemna, 523 U.S. 1, 8 (1998) (citing Pierre with guarded approval). As I say infra, construing personal rights as dignity-rights makes constitutional doctrine (and its focus on legislative intent) make much more sense. So, despite the Court's comments about “mere moral stigma,” I believe the Court does in many contexts recognize personal dignity-based rights, even absent some more tangible harm.
12. See Texas v. Johnson, 491 U.S. 397 (1989).
13. City of Chicago v. Morales, 527 U.S. 41 (1999).
14. See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998) (declining to apply exclusionary rule to parole revocation proceedings and using balancing test to determine deterrence benefits do not outweigh social costs).
15. This is Adler's view. Adler, Personal Rights and Rule-Dependence, Pennsylvania Bd. of Probation and Parole v. Scott note 1.
16. For a different answer to the same question that tends to support Adler's view, see Heidi Hurd, What in the World is Wrong? 5 J. CONTEMP. LEGAL ISSUES 157 (1994).
17. See Linda Ross Meyer, Forgiveness and Public Trust, 27 FORDHAM URB. L.J. 1801, 1802-04 (2000).
18. See Donald Davidson, ESSAYS ON ACTIONS AND EVENTS 221-23 (1980).
19. I cannot pretend these ideas are mine, of course. Kant makes this move in the Third Section of the Groundwork of the Metaphysics of Morals, as well as in his more general attempt to limit “pure reason” in order to allow room for morality and faith. See Immanuel Kant, CRITIQUE OF PURE REASON 29 (Norman Kemp Smith trans., 1929) (“I have therefore found it necessary to deny knowledge, in order to make room for faith.”). Heidegger, among others, builds on this insight in Being and Time. The best I can do for now in understanding or explaining either one is recorded in Linda Meyer, Between Reason and Power: Experiencing Legal Truth, 67 U. CIN. L. REV. 727 (1999) (Kant) and Linda Ross Meyer, Is Practical Reason Mindless? 86 GEO. L.J. 647 (1998) (Heidegger). Please see the works cited in those articles.
20. Hence, I would resist classification as a “social meaning” theorist, because in many cases those theories try to discover “social meaning” empirically, an enterprise that I would find inapt as well as circular. See, e.g., Larry Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943 (1995); Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349 (1997). For normative accounts of practice, see Marianne Constable, THE LAW OF THE OTHER: THE MIXED JURY AND CHANGING CONCEPTIONS OF CITIZENSHIP, LAW AND KNOWLEDGE 15, 85-89 (1994); Alasdair MacIntyre, AFTER VIRTUE, 187-203 (2d ed. 1984).
21. I would not take the view that we must publicly punish every moral wrong (or even that every moral right must be an enforceable legal right-but see Heidi Hurd, Moral Rights and Legal Rules: A Natural Law Theory, 6 LEGAL THEORY (present issue)). We may forgive them. Here I differ from the retributivist, though that is a story for another time. For a first cut, see Meyer, I would resist classification as a “social meaning” theorist, because in many cases those theories try to discover “social meaning” empirically, an enterprise that I would find inapt as well as circular. note 18.
22. This is the standard for facial challenges supposedly articulated in United States v. Salerno, 481 U.S. 739, 745 (1987), which has generated a storm of scholarly controversy. See, e.g., Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998); Adler, Rights Against Rules, Here I differ from the retributivist, though that is a story for another time. note 1.
23. Though blatant, the disrespect here is probably still not in the acontextual “plain meaning” of the statute unless the legislature actually says, “Because we find that black people are inferior,” or something really outrageous. See Adler, Personal Rights and Rule-Dependence, This is the standard for facial challenges supposedly articulated in United States v. Salerno note 1. “Plain meaning” theories of interpretation have these sorts of difficulties; a good reason for avoiding them.
24. See, e.g., Watson v. City of Memphis, 373 U.S. 526 (1963).
25. See, e.g., Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993).
26. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886).
27. See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1975).
28. See, e.g., Miller v. Johnson, 515 U.S. 900, 913 (1995); see Michael Dorf, The Heterogeneity of Rights, 6 LEGAL THEORY 269 (2000).
29. See Dorf, Miller v. Johnson note 23, at 279-80.
30. Peggy Parish, AMELIA BEDELIA (1992) (children's book about a “literalist” housekeeper who gets her instructions wrong by taking them too literally). One might also classify the Goldman v. Weinberger, 475 U.S. 503 (1986), situation as a problem of enforcement, rather than legislation, though the Court declined to grant redress.
31. I would argue that this was why the Court rejected a facial challenge in Yazoo & Mississippi Valley Railroad Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912), not because of some doctrine of requiring all challenges to be as-applied rather than facial. See Yazoo at 219: “How the state court may apply it to other cases and whether its general words may be treated as more or less restrained, and how far parts of it may be sustained if others fail are matters upon which we need not speculate” (emphasis added). See the discussion in Dorf, AMELIA BEDELIA note 23, at 242-43.
32. See, e.g., Richard Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1333 (2000).
33. See Dorf, As-Applied and Facial Challenges and Third-Party Standing note 29.
34. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
35. Papachristou v. Jacksonville, 405 U.S. 156 (1972).
36. City of Chicago v. Morales, 527 U.S. 41 (1999).
37. On these matters, see the insightful discussions in Dorf, City of Chicago v. Morales note 29; Dorf, City of Chicago v. Morales note 23; Emily Sherwin, Rules and Judicial Review, 6 LEGAL THEORY 299 (2000); Fallon, City of Chicago v. Morales note 34.
38. See, e.g., City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000) (ruling turns on the difference between direct and incidental burdens on speech). The Court's insistence upon the difference between content-based restrictions and content-neutral restrictions has led at least one other commentator to the view that discerning legislative purpose (through such doctrinal proxies as the content-based/content-neutral distinction) is central to First Amendment cases. See Kagan, On these matters note 31. A respect-rights analysis would explain why we care so much about legislative purpose, because purpose may have no relation to the quantity or quality of speech restricted. See also, Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 COLUM. L. REV. 1456 (1996) (recognizing importance of motives of police officers, and positing a “targeting” injury analogous to a respect-right); Tribe, On these matters note 31 (stressing that purpose does matter to constitutional doctrine, despite the Court's tendency to disavow it); Michael C. Dorf, Incidental Burdens on Constitutional Rights, 109 HARV. L. Rev. 1175, 1183
39. Romer v. Evans, 517 U.S. 620 (1996) (striking down “no special rights” law primarily because it was motivated by animus against homosexuals).
40. Wallace v. Jaffree, 472 U.S. 38 (1985) (striking down amoment of silence statute because it was intended to put prayer in schools, even though other “secularly motivated” statutesmight survive).
41. Michael Dorf has highlighted the problem of determining what counts as “the statute” given the existence of omnibus appropriations bills, different drafting styles, etc. Dorf, Wallace v. Jaffree note 29. These issues are problematic throughout the law. For example, similar problems are encountered in trying to determine when “double jeopardy” has been violated by the prosecution of overlapping statutes regulating the same conduct, or even what counts as an “element” of a crime versus an element of a defense or a sentence. I am afraid my analysis here will shed little light on these questions, although Dorf's proposed solution of placing the burden on the legislature to redraft the statute seems a sensible one.
42. See Sherwin, Michael Dorf has highlighted the problem of determining what counts as “the statute” given the existence of omnibus appropriations bills, different drafting styles, etc. note 39, for some of those other considerations.
43. I.E. Devitt&C. Blackmar, FEDERAL JURY PRACTICEAND INSTRUCTIONS § 12.10 (4th ed. 1992).
44. See, e.g., Alan Gewirth, Are There Any Absolute Rights?, in THEORIES OF RIGHTS 91, 92 (Jeremy Waldron ed., 1984).
45. See, e.g., Frederick Schauer, Speaking of Dignity, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 178, 184-190 (Michael J. Meyer & W.A. Parent eds., 1992).
46. Though it is hard to see how a duty to respect the autonomy-right of a speaker would always supercede the duty to ensure that citizens are not disrespected by other citizens. This is why cases such as R.A.V. v. City of Saint Paul, 505 U.S. 377 (1992) (striking down a hate speech ordinance because it was directed at content), are hard to swallow.
47. See Christopher L. Eisgruber and Lawrence G. Sager, Religious Liberty and the Moral Structure of Constitutional Rights, 6 LEGAL THEORY 253 (2000).