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Anti-Negativity as Form

Published online by Cambridge University Press:  27 December 2018


Agreeing and sympathizing as I do with what I take to be the core of Professor Abraham's argument—that prevailingly American constitutional thought and public reason model their conceptions of liberty and basic rights too much on proprietorship and too little on citizenship—I confine myself here to a suggestion about the framing of the argument.

Copyright © American Bar Foundation, 1996 

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1 David Abraham, “Liberty without Equality: The Property-Rights Connection in a ‘Negative Citizenship’ Regime,” 21 Law & Soc. Inquiry 1 (1996).CrossRefGoogle Scholar

2 See John Rawls, Political Liberalism Lecture 6 (New York, 1993).Google Scholar

3 Nedelsky, Jennifer proposes a reconstruction of liberty and basic rights in which “relationship” figures in the place occupied by “citizenship” in Abraham's essay. See Jennifer Nedelsky, “Reconceiving Rights as Relationship,” 1 Rev. Const. Stud. 1 (1993); id., “Reconceiving Autonomy: Sources, Thoughts, and Possibilities,” 1 Yale J. L. & Feminism 7 (1989).Google Scholar

4 Abraham at 64.Google Scholar

5 Compare Drucilla Cornell, “Should a Marxist Believe in Rights?” 4 Praxis Int'l 84 (1984).Google Scholar

6 See, e. g., Abraham at 4.Google Scholar

7 See note 162.Google Scholar

8 Compare James E. Fleming's notice of an “evident incongruity” in Bruce Ackerman's work. James E. Fleming, “We the Exceptional American People,” 11 Const. Comm. 355, 372 (1994).Google Scholar

9 See, e. g., Marcuse, Herbert, Reason and Revolution 121–68 (Boston, Beacon paper ed. 1960) (discussing Hegel's Science of Logic).Google Scholar

10 Abraham speaks of “positive” as opposed to negative rights, but in order to help keep clear the difference between the two oppositions I've just mentioned, which as I'll explain I believe is important, I will reserve “positive” for liberty and use “affirmative” for rights.Google Scholar

11 DeShaney v. Winnebago County, 489 U. S. 189, 196, 195 (1989).Google Scholar

12 See, e. g., Reich, Charles, “Midnight Welfare Searches and the Social Security Act,” 72 Yale L. J. 1347 (1963); id., “The New Property,” 73 Yale L. J. 733 (1964); id., “Individual Rights and Social Welfare: The Emerging Legal Issues,” 74 Yale L. J. 1245 (1965).Google Scholar

13 But see Village of Belle Terre v. Boraas v. Belle Terre, 416 U. S. 1 (1974).Google Scholar

14 See C. B. MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1960).Google Scholar

15 A point, indeed, that was obliquely noticed by Circuit Judge Richard Posner in a predecessor case of DeShuney. See Jackson v. City of Joliet, 715 F.2d 1200, 1203 (“No one [among the framers of the Fourteenth Amendment] thought federal constitutional guarantees… necessary to prod states to provide the services that everyone wanted provided.”)Google Scholar

16 See id. (“The modern expansion of government has led to proposals for reinterpreting the Fourteenth Amendment to gaarantee the provision of basic services such as education, poor relief, and, presumably, police protection, even if they are not being withheld discriminatorily.”)Google Scholar

17 See note 3.Google Scholar

18 See Frank I. Michelman, “Justification (and Justifiability) of Law in a Contradictory World,” in Justification (Nomos XXVI) 71, 93 (J. Roland Pennock & John R. Chapman eds. 1986).Google Scholar

19 Emphasis in original. Jürgen Habermas, Between Facts and Norms, trans. William Rehg (forthcoming 1996) (English translation of Faktizität und Geltung) (Frankfurt, 1992).Google Scholar