Craig Konnoth (University of California, Los Angeles (UCLA) – Williams Institute) has posted Heightened Scrutiny for Revoking Rights? The Case of the Proposition 8 Litigation Maryland Law Review, Forthcoming on SSRN. Here is the abstract:
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Should revoking rights be subject to a higher level of scrutiny under federal due process principles? This Essay argues in the affirmative, using the Proposition 8 litigation as a case study. Canonical theories of personhood suggest that our sense of self is formed in part by the rights we have. Empirical behavioral economics shows that revoking a right burdens us more heavily than the failure to afford the right in the first place. This burden is traceable to the harm our sense of personhood suffers when the right is taken away. After reviewing various theories of due process, the Essay argues that personal autonomy principles drives due process doctrine. Thus, the doctrine should recognize the greater loss of autonomy we experience when a legal interest important for our sense of personhood is taken away. The Essay finally considers and rejects various objections to incorporating this analysis into due process doctrine: the revoking rights analysis will not advantage those who will be forced to give up the right to discriminate, nor will it aggrandize judicial power at the expense of states. Thus, this Essay contributes to the current debate on the Proposition 8 litigation by marrying a foundational concept of behavioral economics, the endowment effect, to canonical theories of individual autonomy and due process doctrine.