The Myth of Rights The Purposes and Limits of Constitutional Rights

Author: Ashutosh Bhagwat
Publisher: Oxford University Press USA
ISBN: 9780199897742
Published In: April 2012
Format: Paperback , 310 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Provides a new and provocative look at the nature and role of American constitutional rights
Discusses a wide range of contemporary constitutional debates, including the constitutionality of bans on same-sex marriage, affirmative action, abortion rights, and campaign finance reform
Discusses constitutional issues arising from the War on Terror, including how a clearer understanding of the nature of constitutional rights helps clarify what limits the Constitution places on the government

What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases - i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in our society is structural. These rights restrain governmental power in order to maintain a balance between citizens and the State, and an appropriately limited role for the State in our society. Of course, restricting governmental power does have the effect of advancing individual autonomy, but that is not the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed.

Professor Bhagwat brings clarity to many difficult controversies with a structural approach towards constitutional rights. Issues discussed include flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the second Bush Administration. The Myth of Rights addresses the constitutional issues posed in these and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot. Readers will understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.

Readership: Lawyers, law students, scholars, libraries, general readers interested in constitutional law

Chapter 1. The Myth of Rights: Of Aliens, Corporations, and Guns
Chapter 2. The Nature of Rights: A Theoretical and Historical Overview
Chapter 3. Constitutional Rights and the Structure of Government
Chapter 4. How Constitutional Rights Limit Government Power
Chapter 5. Free Speech and Self-Governance
Chapter 6. The Religion Clauses: Reconciling Accommodation and Separation
Chapter 7. Property Rights and Economic Regulation
Chapter 8. Racial Discrimination and Affirmative Action: The Meaning of Equal Protection
Chapter 9. Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics: Translating Equal Protection
Chapter 10. The Nontextual Constitution: Privacy and Other Unenumerated Rights
Chapter 11. Structural Rights and the War on Terror

Ashutosh Bhagwat, Professor of Law, University of California, Hastings College of Law

Ashutosh Bhagwat is Professor of Law at the University of California, Hastings College of the Law. He is a graduate of Yale College and the University of Chicago Law School. After law school, he served as a law clerk to Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, and then for Associate Justice Anthony M. Kennedy of the United States Supreme Court. He has published many scholarly articles on subjects ranging from constitutional law to administrative law to the California Electricity Crisis. He lives in Moraga, California with his wife and two children.