The Myth of Rights: The Purposes and Limits of Constitutional Rights

Paperback | February 24, 2012

byAshutosh Bhagwat

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What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases - i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in oursociety is structural. These rights restrain governmental power in order to maintain a balance between citizens and the State, and an appropriately limited role for the State in our society. Of course, restricting governmental power does have the effect of advancing individual autonomy, but that isnot the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed.Professor Bhagwat brings clarity to many difficult controversies with a structural approach towards constitutional rights. Issues discussed include flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the secondBush Administration. The Myth of Rights addresses the constitutional issues posed in these and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot. Readers will understandthat while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.

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What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases - i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in oursociety is structural. These rights restrain gov...

Ashutosh Bhagwat is Professor of Law at the University of California, Hastings College of the Law. He is a graduate of Yale College and the University of Chicago Law School. After law school, he served as a law clerk to Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, and then for Associate Justice...
Format:PaperbackDimensions:310 pages, 9.25 × 6.12 × 0.68 inPublished:February 24, 2012Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199897743

ISBN - 13:9780199897742

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Table of Contents

1. The Myth of Rights: Of Aliens, Corporations, and Guns2. The Nature of Rights: A Theoretical and Historical Overview3. Constitutional Rights and the Structure of Government4. How Constitutional Rights Limit Government Power5. Free Speech and Self-Governance6. The Religion Clauses: Reconciling Accommodation and Separation7. Property Rights and Economic Regulation8. Racial Discrimination and Affirmative Action: The Meaning of Equal Protection9. Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics: Translating Equal Protection10. The Nontextual Constitution: Privacy and Other Unenumerated Rights11. Structural Rights and the War on Terror