The Rights QuestionExpressO (2009)
AbstractThe problem this article addresses will be well known to anyone who has taught or taken a course in Constitutional Law in the last three decades. When the subject turns to the related issues of selective incorporation, substantive due process and the proper interpretation of the Ninth Amendment, teachers of Constitutional Law cringe at the prospect of trying to explain sensibly what the Supreme Court itself has come to acknowledge is a most baffling conundrum: what are “rights,” where do they come from, are there more to be identified in the Constitutional universe, who is equipped to find them, and how may the process of the search be immunized from the stinging criticism that Justices are simply making it up as they go along? This area is a mess. Indeed, it is dangerous mess as it not only undermines the integrity of the Court but makes us doubt the efficacy of “rights” in an era when the need for faith in them is most acute. For years, I have studied a body of thought that I believe may hold an answer to the “rights question.” That body of thought is the Scottish Enlightenment, a collection of powerful analytical works generated in the period immediately preceding our Constitution’s framing that was a primary educational source for our Framers. The impact of the Scottish Enlightenment on the body of the Constitution is well documented and compelling. But, because our Bill of Rights did not come with an explanatory text like the Federalist Papers, the influence of Scottish thought on the “rights question” is largely unexplored. This paper is an expedition into that mostly uncharted area. While the scope of this problem is broad, for present purposes, I offer this article as an explication of the major principles of my thesis: that we are in a mess because of our imprecise analysis of the “rights question” posed by the Constitution; that our effort to use the phrase “traditions and conscience of the people” to justify a rights analysis is a lazy and dangerous excuse for a lack of thoughtful methodology in the approach to this critical issue; and, that by drawing back to the roots of our Constitution we may begin to conceive of rights in a way that will make them meaningful in the 21st Century.
Publication DateAugust 17, 2009
Citation InformationBruce A Antkowiak. "The Rights Question" ExpressO (2009)
Available at: http://works.bepress.com/bruce_antkowiak/5/