Academic journal article Harvard Law Review

Rights in Flux: Nonconsequentialism, Consequentialism, and the Judicial Role

Academic journal article Harvard Law Review

Rights in Flux: Nonconsequentialism, Consequentialism, and the Judicial Role

Article excerpt

Judges and constitutional theorists have long debated the best means of understanding constitutional rights. Two paradigms borrowed from philosophy can help make sense of the breadth of individual rights doctrines in constitutional law. On one approach, consequentialism, a rights claim is a single variable in a larger equation of interests to be balanced. A competing approach, under the broad heading of nonconsequentialism, maintains that more categorical normative principles mandate rights protection even if not supported by consequentialist analysis. Nonconsequentialists believe that some other principles--such as liberty, dignity, or equality--can ground constitutional protection of individual rights that override the result of pure interest balancing. These two paradigms are far from absolute, but they helpfully situate both the constitutional discourse and judicial decisions concerning the protection of individual rights. Judicial opinions may lean more heavily on one paradigm or the other, either in the rhetoric they employ or in the substantive rules they establish.

This Note identifies and seeks to explain an apparent asymmetry in the Supreme Court's rights jurisprudence: decisions expanding individual rights often use nonconsequentialist reasoning and rhetoric, while decisions narrowing individual rights often do so through consequentialist balancing. This picture is consistent with many doctrinal frameworks, though there are of course counterexamples of consequentialist rights expansions and nonconsequentialist rights contractions. As a general matter, however, this Note posits a model of nonconsequentialist rights expansions and consequentialist rights contractions. (1)

The source of this asymmetry, this Note contends, is the Supreme Court's unique institutional role as the primary expositor of constitutional rights in U.S. law. When the Court expands individual rights--by either establishing a new right or broadening an existing one--nonconsequentialism is an apt approach given several of the Court's institutional features. One example is the challenge to legitimacy posed by the countermajoritarian difficulty: a Court that expands rights based on nonconsequentialist principles can more easily justify its countermajoritarian role. Another is the relationship between constitutional decisionmaking and social movements, given the broader public appeal of nonconsequentialist reasoning. And a third is judicial majorities' desires to entrench the new rights that they create: nonconsequentialist rights expansions may be less susceptible to later abridgement than consequentialist ones.

Narrowing of constitutional rights, by contrast, has a more natural affinity with consequentialism. The constraint of stare decisis and the legitimacy interest in avoiding seemingly political decisions each favor narrowing a constitutional right not by revisiting first principles, but instead by invoking countervailing interests that justify narrowing the right's scope. (2) For rights-narrowing decisions, as for rights-creating and rights-expanding ones, the key to understanding the asymmetry in the Court's approaches may rest less with the paradigms themselves and more with the institutional features of the Court's role.

Two brief disclaimers are in order. First, this Note does not argue that particular philosophical views motivated specific judicial decisions. Second, it intervenes in neither philosophical debates on different theories' merits nor legal debates on the rightness of specific decisions. It instead seeks only to illuminate how the Court's institutional role shapes its deployment of the competing philosophical paradigms in individual rights cases.


Consequentialism and nonconsequentialism are both broad paradigms accommodating of diverse theories. As a result, differences in substantive outcomes and even, to some extent, methodologies, exist both between and among the two paradigms' adherents. …

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