dlaycock at MAIL.LAW.UTEXAS.EDU
Sun Jan 26 08:19:12 PST 1997
Eugene's comment that he is a "free exercise minimalist" raises the
fundamental question of constitutionalism. I do not have the sense that
Eugene is a free speech minimalist, a takings clause minimalist, or a
right-to-bear-arms minimalist. So how can he legitimately be a free
How can it be legitimate for him to minimize the rights he doesn't
much like, and maximize the ones he likes best? Can constitutionalism
function if we pick and choose which constitutional rights to minimize?
Doesn't the minimization of unpopular constitutional rights mean that the
whole effort to insulate some rights from the political process has failed,
and that each constitutional right will be seriously enforced (not
minimized) only so long as it retains sufficient political support?
I point this at Eugene only because he crystallized the point so
neatly, but he is not in any sense an individual target. The belief that we
can ignore the rights we don't like without undermining the rights we do
like -- the belief that for each constitutional right, we can make an
independent first-order determination of how seriously to enforce it --
seems to be endemic. I have always found this inconsistent with the very
concept of constitutional rights.
I assume Mark Tushnet would say that of course rights will remain
viable only so long as they have sufficient political support, and who could
be so naive as to think otherwise. Fair enough, but the point of
constitutionalism is to create a substantial counterweight to that tendency.
Casual acceptance not only of the raw power, but of the legitimacy of
picking and choosing which rights to enforce, takes most of the weight out
of the counterweight. Why is it not a fundamental principal of
constitutionalism that interpreters are obliged to take all constitutional
rights with equal seriousness?
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