scholarly journals A Philosophical Argument for a Bill of Rights

2000 ◽  
Vol 30 (1) ◽  
pp. 77-98 ◽  
Author(s):  
CÉCILE FABRE
Keyword(s):  
The State ◽  
Moral Rights ◽  
Legal Rights ◽  
Constitutional Rights ◽  
Philosophical Argument ◽  
Bill Of Rights ◽  
Fundamental Interest ◽  
Liberal Tradition ◽  
Democratic State

This article seeks to show that the rights which protect people's autonomy should be entrenched in the constitution of a democratic state. It is firmly located in egalitarian liberal tradition, as it takes for valid the following claims: (1) people have a fundamental interest in autonomy; (2) people have rights that their interest in autonomy, and the interests to which it gives rise, be protected and promoted; (3) people's respective interests in autonomy must be protected equally. The argument for a bill of rights unfolds as follows: first, it is argued that we have autonomy-protecting rights not only against private individuals but also against the state, and the meaning of having such rights against the state is explained; then it is shown that it is legitimate to turn certain autonomy-protecting moral rights into legal rights, and that doing so in the case of the rights we have against the state amounts to turning them into constitutional rights; lastly, two objections to the argument deployed earlier are countered.

LIBERTY AND THE CONSTITUTION

Legal Theory ◽  
2015 ◽  
Vol 21 (3-4) ◽  
pp. 156-241 ◽  
Author(s):  
Michael S. Moore
Keyword(s):  
Political Philosophy ◽  
Constitutional Law ◽  
Supreme Court Decision ◽  
The State ◽  
Moral Rights ◽  
Legal Rights ◽  
American Constitution ◽  
State Coercion ◽  
Constitutional Right ◽  
Do So

ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced by the state when the state is motivated by improper reasons (prominent among which are paternalistic reasons); and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell.

The Rights of Irregular Migrants

2008 ◽  
Vol 22 (2) ◽  
pp. 163-186 ◽  
Author(s):  
Joseph H. Carens
Keyword(s):  
Public Education ◽  
Civil Rights ◽  
The State ◽  
Legal Rights ◽  
Immigration Laws ◽  
Irregular Migrants ◽  
Democratic State ◽  
Wide Range ◽  
Background Assumption

This article considers the question of what legal rights should be possessed by those who reside and work in a democratic state without the legal authorization of the state, given the background assumption that the state is morally entitled to exclude such migrants. I argue that irregular migrants are morally entitled to a wide range of legal rights, including basic human and civil rights, but also rights to wages, workplace protections, and even rights to public education for their children. In order for these rights to be realized in practice, I argue, states ought to create a firewall between those charged with protecting and enforcing these rights and those charged with enforcing immigration laws.

When the State Speaks, What Should It Say?

2012 ◽  
Author(s):  
Corey Brettschneider
Keyword(s):  
Freedom Of Expression ◽  
The State ◽  
Hate Groups ◽  
New Approach ◽  
State Action ◽  
Democratic State ◽  
Theory Of Value ◽  
The Right ◽  
Equal Citizenship ◽  
The Ideal

How should a liberal democracy respond to hate groups and others that oppose the ideal of free and equal citizenship? The democratic state faces the hard choice of either protecting the rights of hate groups and allowing their views to spread, or banning their views and violating citizens' rights to freedoms of expression, association, and religion. Avoiding the familiar yet problematic responses to these issues, this book proposes a new approach called value democracy. The theory of value democracy argues that the state should protect the right to express illiberal beliefs, but the state should also engage in democratic persuasion when it speaks through its various expressive capacities: publicly criticizing, and giving reasons to reject, hate-based or other discriminatory viewpoints. Distinguishing between two kinds of state action—expressive and coercive—the book contends that public criticism of viewpoints advocating discrimination based on race, gender, or sexual orientation should be pursued through the state's expressive capacities as speaker, educator, and spender. When the state uses its expressive capacities to promote the values of free and equal citizenship, it engages in democratic persuasion. By using democratic persuasion, the state can both respect rights and counter hateful or discriminatory viewpoints. The book extends this analysis from freedom of expression to the freedoms of religion and association, and shows that value democracy can uphold the protection of these freedoms while promoting equality for all citizens.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

Environmentalists, Nuclear Waste, and the Politics of Passive Exclusion in Germany

2001 ◽  
Vol 19 (4) ◽  
pp. 43-63 ◽  
Author(s):  
Christian Hunold
Keyword(s):  
Public Policy ◽  
Public Sphere ◽  
Nuclear Waste ◽  
Environmental Movement ◽  
The State ◽  
Radioactive Wastes ◽  
Liberal Democratic ◽  
Democratic State ◽  
Ecological Democracy ◽  
Over Time

In this essay I examine the dispute between the German GreenParty and some of the country’s environmental nongovernmentalorganizations (NGOs) over the March 2001 renewal of rail shipmentsof highly radioactive wastes to Gorleben. My purpose indoing so is to test John Dryzek’s 1996 claim that environmentalistsought to beware of what they wish for concerning inclusion in theliberal democratic state. Inclusion on the wrong terms, arguesDryzek, may prove detrimental to the goals of greening and democratizingpublic policy because such inclusion may compromise thesurvival of a green public sphere that is vital to both. Prospects forecological democracy, understood in terms of strong ecologicalmodernization here, depend on historically conditioned relationshipsbetween the state and the environmental movement that fosterthe emergence and persistence over time of such a public sphere.

Thomas Jefferson’s Virginia Criminal Law Bill

2018 ◽  
Author(s):  
Markus D. Dubber
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
Criminal Code ◽  
The State ◽  
Modern State ◽  
Historical Account ◽  
Liberal Democratic ◽  
Democratic State ◽  
Penal State ◽  
State 1

Part III of Dual Penal State uses dual penal state analysis to generate a comparative-historical account of American penality. With comparative glimpses at Germany and, to a lesser extent, England, it distinguishes between two responses to the shared challenge of legitimating state penal power in a modern liberal democratic state: (1) the failure to appreciate the legitimatory challenge of modern state penal power in particular (United States) and of modern state power in general (England); and (2) the failure to address the legitimatory challenge of modern state penal power as an ongoing existential threat to the legitimacy of the state (Germany). Chapter 6 undertakes a critical analysis of Jefferson’s 1779 draft of a criminal law bill for the State of Virginia, concluding that it fell well short of a criminal code that reflected the ideals of the American legal-political project as spelled out, for instance, in Jefferson’s Declaration of Independence of 1776.

The Crisis of Minorities in Ethnic States: The Case of Palestinian Citizens in Israel

1998 ◽  
Vol 30 (3) ◽  
pp. 321-346 ◽  
Author(s):  
Naditn Rouhana ◽  
Asʿad Ghanem
Keyword(s):  
Equal Opportunity ◽  
International System ◽  
The State ◽  
The Political ◽  
Political Structure ◽  
Ongoing Debate ◽  
Group Rights ◽  
Liberal Democratic ◽  
Ethnic Affiliation ◽  
Democratic State

The vast majority of states in the international system, democratic and non-democratic, are multi-ethnic (Gurr 1993). A liberal-democratic multi-ethnic state serves the collective needs of all its citizens regardless of their ethnic affiliation, and citizenship—legally recognized membership in the political structure called a state—is the single criterion for belonging to the state and for granting equal opportunity to all members of the system. Whether a multi-ethnic democratic state should provide group rights above and beyond individual legal equality is an ongoing debate (Gurr & Harff 1994).

Rights and Citizenship

1981 ◽  
Vol 31 ◽  
pp. 12-23
Author(s):  
J. Roland Pennock
Keyword(s):  
Citizenship Education ◽  
Ethical Issues ◽  
The State ◽  
Legal Rights ◽  
Casual Reader ◽  
General Topic

This discussion of rights and citizenship is part of a series falling under the general topic “Ethical Issues and Citizenship Education.” Although it contains little directly dealing with how to go about the education of citizens, it does embody material that would be desirable for citizens to know and to understand. Citizenship as well as rights will be discussed in the pages that follow, but the bulk of this particular contribution to the series will deal with rights. (Specifically sections 3-7 deal solely with rights.) The relation between the two is greater than might otherwise appear to the casual reader, for it is as citizens that we claim our most important rights, our rights against the state. Our legal rights have derived from our citizenship. As citizens we enjoy the right to have our rights enforced — as a matter of right, not just as a privilege that could be legitmately taken away from us at the whim of some arbitrary ruler.

From Property Rights to Liberty Rights: We the Corporations, A Review Essay

2021 ◽  
Vol 95 (2) ◽  
pp. 335-340
Author(s):  
Laura Phillips Sawyer
Keyword(s):  
Civil Rights ◽  
Civil Liberties ◽  
Political Process ◽  
Constitutional Rights ◽  
Bill Of Rights ◽  
State Action ◽  
Unequal Treatment ◽  
The People ◽  
The Right ◽  
We The People

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live one's life fully, such as the freedom of religion, speech, or association. The vim in Winkler's argument is that the court blurred this distinction when it applied liberty rights to nonprofit corporations and then, through a series of twentieth-century rulings, corporations were able to advance greater claims to liberty rights. Ultimately, those liberty rights have been employed to strike down significant bipartisan regulations, such as campaign finance laws, which were intended to advance democratic participation in the political process. At its core, this book asks, to what extent do “we the people” rule corporations and to what extent do they rule us?

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