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The Myth of RightsThe Purposes and Limits of Constitutional Rights$
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Ashutosh Bhagwat

Print publication date: 2010

Print ISBN-13: 9780195377781

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195377781.001.0001

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Constitutional Rights and the Structure of Government

Constitutional Rights and the Structure of Government

(p.37) 3 Constitutional Rights and the Structure of Government
The Myth of Rights


Oxford University Press

This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.

Keywords:   U.S. Constitution, constitutional rights, Bill of Rights, Civil War

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