Good and Bad Rights
Marie A. Failinger
mfailing at PIPER.HAMLINE.EDU
Tue Mar 30 17:38:42 PST 1999
Prof. Gillman's historical argument is one I will look forward to seeing.
As a matter of theory, another way to get at the question I was trying to
pose may be this: are there rights which our tradition (and you can pick
whether you're a narrow traditionalist, into Founders and such, or a
broad traditionalist, incorporating the whole shebang) (and perhaps Prof.
Gillman's book will shed light on this) has understood as
intrinsically valuable, apart from their functional use in our polity
(ensuring democracy, balance of powers, etc.)?
Should the Court be willing to protect intrinsically valuable rights in
different ways than
merely functional rights? And could we define what those rights are?
For example, is the activity of using a gun intrinsically valuable, or
would the 2d amendment protect guns only in order to prevent
government oppression and ensure self-protection? If the activities of
speech and religion are, say, intrinsically valuable, would privacy be as
well, including sex, or are they only functionally valuable?
Or, if ALL rights are protected because of their functional value,
should form (protection of rights) follow function closely, so that quite
complex constitutional schemes might be developed for each right as well
as within rights? (So that, for instance, employee speech might be
regulated differently than political speech, etc., as is currently the
Or, should all rights be protected by contextual approaches because
function is dependent on context?
I guess that's enough for now.
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