The Myth of Rights The Purposes and Limits of Constitutional Rights 1st Edition by Ashutosh Bhagwat ISBN 978-0195377781 0195377788

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Product details: 

ISBN 10:  0195377788

ISBN 13: 978-0195377781

Author: Ashutosh Bhagwat

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 our society 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 is not 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 second Bush 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 understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.

Table of contents: 

1. The Myth of Rights: Of Aliens, Corporations, and Guns

2. The Nature of Rights: A Theoretical and Historical Overview

3. Constitutional Rights and the Structure of Government

4. How Constitutional Rights Limit Government Power

5. Free Speech and Self-Governance

6. The Religion Clauses: Reconciling Accommodation and Separation

7. Property Rights and Economic Regulation

8. Racial Discrimination and Affirmative Action: The Meaning of Equal Protection

9. Discrimination on the Basis of Sex, Sexual Orientation, and Other Characteristics: Translating Equal Protection

10. The Nontextual Constitution: Privacy and Other Unenumerated Rights

11. Structural Rights and the War on Terror

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Tags: Ashutosh Bhagwat, The Myth, The Purposes