Stephanie H. Barclay (Notre Dame Law School) has posted Constitutional Rights as Protected Reasons (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article proposes and defends a new theoretical model of constitutional rights. Virtually all the prevailing theories about constitutional rights envision, at some level, judges balancing the importance of various individual rights against the importance of other societal goods in tension with those rights. These theories also generally hold out the judiciary as the primary guardian of these rights, whereas the other political branches are often viewed as fulfilling a role of interfering with (or protecting) rights only as much as the judiciary will allow. This Article explains why the current existing accounts of constitutional rights are either incoherent or incomplete. And it proposes and defends an alternative model that is more consistent with democratic principles and the institutional competencies of the various branches of government.
Specifically, I argue that a constitutional right is a specific type of what Joseph Raz called a “protected reason.” It has two elements: First, it operates as a first-order reason for action by government officials to protect a private interest that has been specified in the constitution. Second, it operates as a second-order exclusionary reason to prohibit government relying on some reasons that would, absent such a rule, weigh against protection of the private interest specified in the constitution. This definition also includes a separation of powers element: I argue that the government’s weighing of first-order reasons with respect to constitutional rights should be entitled to deference from courts, but the question of whether the government acted on reasons that should have been excluded can be adjudicated with much more judicial rigor. I describe the evidentiary requirements courts should consider to make an exclusionary reason efficacious in an adjudicative context.
This Article then brings these arguments together, rethinking doctrines like strict scrutiny, the Supreme Court’s Section Five jurisprudence under the Fourteenth Amendment, and the global proportionality model. I argue that reconceptualizing rights in the way I propose would preserve meaningful protections for minority groups while reducing both the phenomenon of “conflicts” of rights and concerns about judicial balancing. I also explain how this conception of constitutional adjudication has deep historical roots, and is one philosophical way of capturing how rights were understood to operate at the time that some of the earliest written constitutions were drafted.