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Civil rights--United States, Constitutional law--United States.
publication date
:
1987
lcc
:
KF4749.A2C63 1987eb
ddc
:
323.4/0973
subject
:
Civil rights--United States, Constitutional law--United States.
Page iii
Constitutionalism And Rights
Gary C. Bryner Noel B. Reynolds
BRIGHAM YOUNG UNIVERSITY
Page iv
Library of Congress Cataloging-in-Publication Data Bryner, Gary C. and Noel B. Reynolds Constitutionalism and rights. "Four invited essays were originally presented in January of 1985 as a lecture series inaugurating the celebration of the Bicentennial of the Constitution of the United States of America at Brigham Young University"Intro.
Includes index.
Contents: Constitutionalism and the politics of rights/by Gary C. BrynerThe uncertain quest for welfare rights/by Richard A. EpsteinThe "new" science of politics and constitutional government/by Walter Berns[etc.]
1. Civil rightsUnited States. 2. United States Constitutional law. I. Bryner, Gary C., 1951 II. Reynolds, Noel B. Kf4749.A2C63 1987 323.4'0973 86-23272 ISBN 0-88706-806-5
Brigham Young University, Provo, Utah 84602 "The Political Theory of the Procedural Republic" 1986 by Michael J. Sandel 1987 by Brigham Young University. All rights reserved Printed in the United States of America
Distributed by State University of New York Press, State University Plaza, Albany, New York 12446-0001
Page v
Contents
Introduction
1
I Constitutionalism and the Politics of Rights
Gary C. Bryner
7
II The Uncertain Quest for Welfare Rights
Richard A. Epstein
33
III The "New" Science of Politics and Constitutional Government
Walter Berns
63
IV Constitutionalism and the Rule of Law
Noel B. Reynolds
79
V Civic Virtue: The Founders' Conception and the Traditional Conception
Thomas Pangle
105
VI The Political Theory of the Procedural Republic
Michael J. Sandel
141
Index
157
Page 1
Introduction
It is fortuitous that the bicentennial celebrations of the writing of the American Constitution are coming on the scene at a time when historical and philosophical scholarship have begun to improve dramatically our ability to understand and appreciate that great eighteenth-century achievement. This development is doubly fortunate today because fundamental questions about how the Constitution might be strengthened or revised are increasingly being raised in our legislatures and public discussions. If we are to build wisely on the heritage of the past as we undertake to make adjustments for the future, it is imperative that we fully understand the reasons for our system's successes and failures. This volume of essays and the lecture series from which it is mostly drawn have been conceived as a contribution to that improved understanding.
In contrast to the eighteenth-century Founders, today we ordinarily approach discussions of the Constitution through the concept of rights. But rights have become controversial. New technologies and social arrangements raise difficult questions about rights that were unknown or unquestioned in that earlier day. The volume begins with a systematic discussion of the notion of rights and with careful attention to the development of that concept over the last two centuries. In this introductory essay Gary Bryner emphasizes an account of the contemporary debates about rights and raises several questions that must be answered if we are to make further progress in these discussions. Much more attention, he argues, needs to be given to the mechanisms and structures and procedures that can assure rights in a large bureaucratic state. Particularly important here is a consideration of the paradox that increasing governmental powers in the pursuit of
Page 2
rights may also serve to threaten other rights. Much of the debate that takes place in the name of rights would be better undertaken as a discussion of public choices and priorities that cannot be deduced from the Constitution, but, rather, reflect a willingness to pursue public policies on a more tentative basis.
Our second essayist focuses his attention on one of the newest and most controversial rights concepts as it arises in debates over public welfare programs. Richard Epstein undertakes to explain why it is that the quest for welfare rights has been (and will continue to be) so uncertain. Noting that we have no developed theory of rights to justify the massive welfare schemes of western democracies, he examines some recent attempts to develop such a theory and then goes on to explore the range of logically available alternative strategies. Epstein insists that theorists must recognize the responsibility to assess actual resources in any scheme of welfare rights. The inquiry reveals both a fundamental incompatibility between traditional common law and welfare rights and the fact that economic theory provides no reason to hope that welfare transfer schemes can possibly improve the economic condition of even the poor over the long run. Epstein does finally find one unexpected, second-level justification for welfare expenditures in the fact that much government regulation of capital and labor works against the poor as a public version of the tort of "interfering with prospective advantage." Though he recognizes the inadequate fit between this justification and present welfare schemes, he sees in it at least some substantial justification for a gradualist approach to reducing welfare programs while expanding the economic freedom of the poor.
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