A Right-Based Critique of Constitutional Rights†

Abstract

'Individuals have rights, and there are things no person or group may do to them. The author shows that there is no necessary inference from the premises of a right-based moral theory to the desirability of constitutional rights as a particular political arrangement. Right-based theories are not always articulated in a linear structure of this kind, moving from abstract rights through a series of derivative rights, each one supported by and more concrete than the last. For rights may be the very thing that the members of the society are disagreeing about, the very issue that they are using majority voting to settle. Philosophers disagree among themselves and citizens disagree among themselves about issues of rights and justice. They disagree about welfare and taxation, about free speech and the rule of law, about equal opportunity and substantive equality. People disagree about how participatory rights should be understood and about how they should be balanced against other values.

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