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The Effective Enjoyment of Rights

Published online by Cambridge University Press:  06 March 2019

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Claims of “rights” involve abstraction - to some extent anyway - from immediate social and political context. Academic discussion of the topic very often magnifies the abstraction. At the same time, abstraction is itself sometimes identified as the central “problem” in rights theory - and so becomes the focus of discussion of the topic. It is the focus of Professor Denninger's paper. It is also the focus of mine.

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Copyright © 2011 by German Law Journal GbR 

References

1 Need I say that this sketch is extremely simplified?Google Scholar

2 Again, the extreme simplification of the comments that follow should be obvious.Google Scholar

3 Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).Google Scholar

4 Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969). The statute at issue did allow all parents of children in the local public schools to participate as well.Google Scholar

5 Shapiro v. Thompson, 394 U.S. 618 (1969). In this opinion, the Court also seemed to go beyond the “effective realization” argument to imply that there might be some sort of “independent” right to the means of subsistence.Google Scholar

6 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). In this case, the Court didn't actually require - it just upheld - such governmental assistance. But its argument seemed broader.Google Scholar

7 Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968). Access by picketers to a privately owned shopping center where the picketers’ message could effectively reach a sizeable audience).Google Scholar

8 Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar

9 Lindsey v. Normet, 405 U.S. 56 (1972). See also James v. Valtierra, 402 U.S. 137 (1971); Dandridge v. Williams, 397 U.S. 471 (1970).Google Scholar

10 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). The Court did leave open the question whether there might be “some identifiable quantum of education [that] is a constitutionally protected prerequisite to the meaningful exercise” of the right.Google Scholar

11 Harris v. McRae, 448 U.S. 297 (1980).Google Scholar

12 Maher v. Roe, 432 U.S. 464 (1977).Google Scholar

13 These provisions are in the Fifth and Fourteenth Amendments to the Constitution. During the 1960's, the Court had addressed procedural matters affecting the enjoyment of rights under other provisions. E.g., Miranda v. Arizona, 384 U.S. 436 (1966) (right against self-incrimination); United States v. Wade, 388 U.S. 218 (1967) (right to the assistance of counsel); Freedman v. Maryland, 380 U.S. 51 (1965) (freedom of speech). See Monaghan, “First Amendment ‘Due Process',” 83 Harv. L. Rev. 518 (1970)Google Scholar

14 Goldberg v. Kelly, 397 U.S. 254 (1970) (requiring a full evidentiary hearing before termination of welfare benefits).Google Scholar

15 Board of Regents v. Roth, 408 U.S. 564 (1972); Fuentes v. Shevin, 407 U.S. 67 (1972).Google Scholar

16 See, e.g., Tribe, Structural Due Process, 10 Harvard Civil Rights- Civil Liberties Law Review (Harv. C.R.-C.L. L. Rev.) 269 (1975); Michelman, Formal and Associational Aims in Procedural Due Process, in Due Process (J. Pennock & J. Chapman, eds (1977)).Google Scholar

17 Ely, J., Democracy and Distrust (1980).Google Scholar

18 Serious difficulties of translation may be at work here.Google Scholar

19 Vague legal standards can be presented in a very different spirit. See Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976).Google Scholar

20 See, e.g., Tribe, supra note 16; Michelman, supra note 16.Google Scholar

21 Supra, Note 17Google Scholar

22 Parker, The Past of Constitutional Theory - And Its Future, 42 Ohio St. L. J. 223 (1981).Google Scholar

23 Goss v. Lopez, 419 U.S. 565 (1975).Google Scholar

24 Michelman, supra, note 16.Google Scholar

25 Tribe, supra note 16.Google Scholar

26 Arnett v. Kennedy, 416 U.S. 134 (1974); Paul v. Davis, 424 U.S. 693 (1976); Bishop v. Wood, 426 U.S. 341 (1976).Google Scholar

27 Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Matthews v. Eldridge, 425 U.S. 319 (1976).Google Scholar

28 Justice Felix Frankfurter was a past master as such argument.Google Scholar

29 Parker, supra note 22.Google Scholar

30 Id. At least some members of the U.S. Supreme Court now appear willing to embark on some such critical scrutiny. See, e.g., U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980) (Brennan, J., dissenting).Google Scholar

31 Supra, note 10.Google Scholar

32 Buckley v. Valeo, 424 U.S. 1 (1976).Google Scholar

33 Ironically, in arguing for its refusal to pay attention to inequality of resources, the Court made a ringing statement which can very easily be used to subvert its own position. It said: “The First Amendment's protection … cannot properly be made to depend on a person's financial ability to engage in public discussion.” This sentence seems to illustrate the contradictory tendencies embedded in rights discourse of which I have spoken.Google Scholar

34 FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985).Google Scholar

35 Plyler v. Doe, 457 U.S. 202 (1982). To be sure, there were important distinctions between this case and the 1973 case. What was at stake was the education of children of undocumented aliens living in the United States, not children of less well-to-do families generally. In addition, what was at issue was a total denial of education, rather than relative inequality in educational opportunity. But my concern is not with holdings; it is with general modes of argument.Google Scholar