Academic journal article The University of Memphis Law Review

Logic from the Supreme Court That May Recognize Positive Constitutional Rights

Academic journal article The University of Memphis Law Review

Logic from the Supreme Court That May Recognize Positive Constitutional Rights

Article excerpt

I. INTRODUCTION: BACKGROUND AND PURPOSE......................638

II. ANALYSES OF BAZE V. REES AND GLOSSIP V. GROSS...............642

III. THE PRINCIPLE FROM BAZE AND GLOSSIP: A CONSTITUTIONAL END IMPLIES THE EXISTENCE OF CONSTITUTIONAL MEANS TO REALIZE THE END...................645

IV. THE ARGUMENT USED TO ESTABLISH THE GENERAL PRINCIPLE IS ANALOGOUS TO THE LOGIC APPLIED BY THE COURT TO RECOGNIZE UN-ENUMERATED CONSTITUTIONAL RIGHTS IN GRISWOLD V. CONNECTICUT.....646

V. A SUPREME COURT DECISION WHICH SUPPORTS THE GENERAL PRINCIPLE......................................................648

VI. AN ONGOING STRUGGLE THAT COULD LEAD TO A TEST CASE FOR THE GENERAL PRINCIPLE.............................650

VII. CONCLUSION.........................................................................657

"Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality [that is, the necessary means] that permits a life of dignity and well-being, [that is, to a protected right]....

I. INTRODUCTION: BACKGROUND AND PURPOSE

Professor Christopher Serkin recently characterized the general understanding of the nature of rights protected by the United States Constitution as follows: "The Constitution is typically thought to create only negative rights-rights that constrain the government from acting in certain proscribed ways." This is especially true in the judicial branch;3 however, as the discussion below demonstrates, the United States Supreme Court ("the Court" or "Supreme Court") might be prepared to recognize tightly constrained positive constitutional rights.4

In an earlier article, I argued that the Constitution does recognize and protect positive rights and, in fact, that the positive right-negative right dichotomy is illusory.5 What appears to be a negative right can be rearticulated into what appears to be a positive right6 and vice versa.7

A recent Supreme Court case exemplifies the illusory nature of this distinction. In McCullen v. Coakley,8 the Court stated the issue to be decided as follows: "Petitioners are individuals who approach and talk to women outside [abortion clinics], attempting to dissuade them from having abortions. The statute prevents petitioners from doing so near the facilities' entrances. The question presented is whether the statute violates the First Amendment."9 This issue can be phrased in positive right language as: Must the state provide space on the public sidewalk in which the petitioners may approach and talk to women outside such facilities? It may also be phrased in negative rights terms as: May the state deny petitioners the right to approach and talk to women outside such facilities? The Court ultimately held that the state may not "clos[e] a substantial portion of a traditional public forum to all speakers."10 The Court could have rephrased this as a positive right, namely, that the state must keep open an adequate portion of a traditional public forum to all speakers. A preference for the negative version is traditionally prevalent in court opinions; however, change may be on the horizon.

The Supreme Court may be moving away from its history of refusing to recognize and protect positive constitutional rights. The Court's opinion in the recent case Glossip v. Gross provides support for the existence of positive rights protected by the Constitution and for the illusory nature of distinguishing between positive and negative rights.11

Although there are no authoritative definitions of positive right and negative right, there are attempts to correlate negative rights with a prohibition or limitation of government action. Thus, the First Amendment provision that "Congress shall make no law . . . abridging the freedom of speech" is held out as recognizing a negative right that only prohibits Congress from enacting legislation limiting the speech of persons protected by the Constitution. …

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