Constitutional Rights as Protected Reasons

Stephanie Hall Barclay

Professor of Law at Georgetown University Law Center and Faculty Co-Director of the Georgetown Center for the Constitution.

For very helpful comments, conversations, and encouragement on this draft and earlier versions of this project, the author thanks Joel Alicea, Howard Anglin, Kristina Arriaga, Randy Barnett, William Baude, Rachel Bayefsky, Joseph Blocher, Samuel Bray, Christian Burset, Jud Campbell, Louis Capozzi, Piero Ríos Carrillo, Conor Casey, Nathan Chapman, Aimee Clesi, Nicholas Cole, Steve Collis, Caroline Mala Corbin, Katherine Mims Crocker, Marc DeGirolami, Michelle Dempsey, Alma Diamond, Hasan Dindjer, Richard Ekins, Timothy Endicott, David Enoch, Bridget Fahey, Richard Fallon, John Finnis, Frederick Gedicks, Nazila Ghanea, Sherif Girgis, Raphaël Grenier-Benoit, Simona Grossi, Jeremy Gunn, John Harrison, Michael Helfand, Richard Helmholz, Don Herzog, Steven Heyman, Kristin Hickman, Jessie Hill, Heidi Hurd, Michael Kang, Paul Kerry, Andrew Koppelman, Konrad Ksiazek, Genevieve Lakier, Lia Lawton, Douglas Laycock, Robert Leider, Tyler Lindley, Christopher Lund, Elinor Mason, Michael McConnell, Stefan McDaniel, Bradley Miller, Darrell Miller, Paul Miller, Robert Miller, Christina Mulligan, Jim Oleske, Filipa Paes, James Phillips, Richard Pildes, Jeffrey Pojanowski, Zachary Price, Haley Proctor, Eric Rassbach, Richard M. Re, Bradley Rebeiro, Veronica Rodriguez-Blanco, Zalman Rothschild, Angelo Ryu, Stephen Sachs, Josep Tirapu Sanuy, Micah Schwartzman, Amanda Shanor, Reva Siegel, Geoffrey Sigalet, Lawrence Solum, Anna Stelle, John Stinneford, Mark Storslee, Michael David Thomas, Rebecca Tushnet, Francisco Urbina, Pía Chible Villadangos, Eugene Volokh, Derek Webb, Grégoire Webber, Lael Weinberger, Andrew Willinger, John Witte, Kara Woodbury-Smith, Ilan Wurman, Paul Yowell, Mary Ziegler, the participants at the Women in Legal Philosophy Conference at Villanova Law School, the First Annual UChicago Constitutional Law Conference, the Oxford Public Law Discussion Group, the Oxford University Bonavero Institute of Human Rights Works-in-Progress session, Federalist Society Junior Scholar Panel at Association of American Law Schools, the Salmon P. Chase Colloquium, the Georgetown Law School Works-in-Progress session, the Minnesota Law School Works-in-Progress session, the Pepperdine Law School Nootbaar Fellows workshop, the Northwestern Law School Works-in-Progress session, the Northwestern Law School Public Law Colloquium, and the Stanford Law School Constitution Center Works-in-Progress workshop. For excellent research assistance, the author thanks Nat Deacon, Chris Ostertag, Jacob Feiser, Mathias Valenta, Anneliese Ostrom, and Athanasius Sirilla.

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This Article proposes and defends a new theoretical model of constitutional rights. Virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights. These theories also generally hold out the judiciary as the primary guardian of these rights, whereas the other political branches are often viewed as fulfilling a role of interfering with (or protecting) rights only as much as the judiciary will allow. This Article explains why the existing accounts of constitutional rights are either incoherent or incomplete. And it proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.

Specifically, I argue that a constitutional right is a specific type of what legal philosopher Joseph Raz called a “protected reason.” It has two elements: First, it operates as a first-order reason for action by government officials to protect a private interest that has been specified in a constitution. Second, it operates as a second-order exclusionary reason to prohibit a government from relying on some reasons that would, absent the constitutional rule, weigh against protection of the private interest specified in the constitution. This definition also includes a separation of powers element: I argue that the government’s weighing of first-order reasons with respect to constitutional rights should be entitled to deference from courts. But the following questions can be carefully examined by the judiciary in the context of as-applied challenges: whether the government’s actions advanced a countervailing permitted reason that strictly conflicted with the pro tanto right, or whether the government acted on reasons that should have been excluded. I describe the evidentiary requirements courts can (and do) implement to make an exclusionary reason efficacious in an adjudicative context, though I also explain why that same factual scrutiny does not neatly track to the context of facial challenges.

This Article then brings these arguments together, rethinking doctrines like strict scrutiny, the Supreme Court’s jurisprudence under § 5 of the Fourteenth Amendment, and the global proportionality model. I argue that reconceptualizing rights in the way I propose would preserve meaningful protections for minority groups while reducing both the phenomenon of “conflicts” of rights and concerns about judicial balancing. I also explain how this conception of constitutional adjudication has deep historical roots. This theory is, in other words, one philosophical way of capturing how rights were understood to operate at the time that some of the earliest written constitutions were drafted.

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