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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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The Nontextual Constitution

The Nontextual Constitution

Privacy and Other Unenumerated Rights

(p.225) 10 The Nontextual Constitution
The Myth of Rights


Oxford University Press

This chapter considers another, even more controversial topic: whether the Constitution should be read to create “rights,” or impose limits on state authority (as we will see, even the proper characterization is controversial), which are not derivable from specific constitutional text. Put differently, the dispute centers over whether judges are empowered to find/recognize/create constitutional rights, constitutional limits on governmental power, and constitutional principles more generally, which are largely disassociated from specific constitutional text; and if they are so empowered, how judges are to go about this task. The chapter begins with a brief overview of how the Supreme Court has handled this issue over the years, including a summary of its important, recent decisions in areas of nontextual constitutionalism such as same-sex marriage and abortion. It then considers what light a structural approach to the Constitution might shed on these difficult and divisive questions.

Keywords:   U.S. Constitution, constitutional rights, nontextual constitutionalism, natural law, same-sex marriage, abortion

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