Rights Against Rules: The Moral Structure of American Constitutional Law
The Bill of Rights, by means of open-ended terms such as “freedom of speech,” “equal protection,” or “due process,” refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers’ beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers’ views. Bracketing this disagreement, however, it is surely correct to say – as Dworkin and many other prominent constitutional scholars have said – that the Constitution, through the openended clauses of the Bill of Rights, incorporates parts of morality. Yet there is also a sense in which this “moral reading” of the Constitution is mistaken, or at least needs to be qualified. Constitutional rights have a special formal structure – a formal structure so familiar to us that this structure, and therewith its significance, have become invisible. I will call this structure the “Basic Structure.” Constitutional rights are rights against rules. A constitutional right protects the rights-holder from a particular rule (a rule with the wrong predicate or history); it does not protect a particular action of hers from all the rules under which the action falls. As a consequence of the Basic Structure,a constitutional right has only derivative moral content – or so this article will try to show. To say that X’s treatment pursuant to a rule R violates X’s “constitutional rights,” or that the treatment is “unconstitutional,” does not entail that the treatment itself is morally wrong, or morally problematic, or that there is moral reason to overturn the treatment ceteris paribus, or that the treatment violates X’s moral rights, or that moral wrong has been done to X, or anything like this. All the statement entails is that there exists moral reason to repeal or amend the rule R.