George P. Fletcher
- Published in print:
- 2003
- Published Online:
- November 2003
- ISBN:
- 9780195156287
- eISBN:
- 9780199872169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195156285.003.0010
- Subject:
- Political Science, American Politics
This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election ...
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This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election of senators, various forms of suffrage, and Prohibition – and those now being proposed, such as the victims’ rights amendment and a proposed amendment to outlaw flag‐burning – are discussed. The tension between the concept of a “civil society” and such values as freedom of speech and freedom of religion is also examined in a comparative context.Less
This chapter examines the role of constitutional amendments in American legal culture. Amendments that have already been approved – such as those that instituted the income tax, the popular election of senators, various forms of suffrage, and Prohibition – and those now being proposed, such as the victims’ rights amendment and a proposed amendment to outlaw flag‐burning – are discussed. The tension between the concept of a “civil society” and such values as freedom of speech and freedom of religion is also examined in a comparative context.
Ashutosh Bhagwat
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.001.0001
- Subject:
- Law, Constitutional and Administrative Law
What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases — i.e., that rights protect autonomy. That understanding, however, is wrong; it is, ...
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What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases — i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in our society is structural. These rights restrain governmental power in order to maintain a balance between citizens and the State, and an appropriately limited role for the State in our society. Of course, restricting governmental power does have the effect of advancing individual autonomy, but that is not the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed. This book brings clarity to many difficult controversies, with a structural approach towards constitutional rights. Issues discussed include flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the second Bush Administration. The Myth of Rights addresses the constitutional issues posed in these and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot. Readers will understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.Less
What is a constitutional right? If asked, most Americans would say that it is an entitlement to act as one pleases — i.e., that rights protect autonomy. That understanding, however, is wrong; it is, indeed, The Myth of Rights. The primary purpose and effect of constitutional rights in our society is structural. These rights restrain governmental power in order to maintain a balance between citizens and the State, and an appropriately limited role for the State in our society. Of course, restricting governmental power does have the effect of advancing individual autonomy, but that is not the primary purpose of rights, and furthermore, constitutional rights protect individual autonomy to a far lesser degree that is generally believed. This book brings clarity to many difficult controversies, with a structural approach towards constitutional rights. Issues discussed include flag-burning, the ongoing debates over affirmative action and same-sex marriage, and the great battles over executive power fought during the second Bush Administration. The Myth of Rights addresses the constitutional issues posed in these and many other areas of law and public policy, and explains why a structural approach to constitutional rights illuminates these disputes in ways that an autonomy-based approach cannot. Readers will understand that while constitutional rights play a critical role in our legal and political system, it is a very different role from what is commonly assumed.
Nathaniel Persily
- Published in print:
- 2008
- Published Online:
- October 2011
- ISBN:
- 9780195329414
- eISBN:
- 9780199851720
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195329414.003.0001
- Subject:
- Political Science, American Politics
Whether a conflict deals with racial integration or abortion, school prayer or gay rights, flag burning or the right to die, the most polarizing controversies of today's politics often find a home in ...
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Whether a conflict deals with racial integration or abortion, school prayer or gay rights, flag burning or the right to die, the most polarizing controversies of today's politics often find a home in the courtroom as well as in the legislative chamber or candidate debate. This book examines these and other constitutional controversies by focusing on the opinions the American public has expressed in the last half century of polling on these issues. The data presented and analyzed here inform the debates in the respective literatures. The chapters that follow present public opinion data to describe what the American people have believed about these issues over the past half century and to infer from this how, if at all, court decisions have influenced the public's views.Less
Whether a conflict deals with racial integration or abortion, school prayer or gay rights, flag burning or the right to die, the most polarizing controversies of today's politics often find a home in the courtroom as well as in the legislative chamber or candidate debate. This book examines these and other constitutional controversies by focusing on the opinions the American public has expressed in the last half century of polling on these issues. The data presented and analyzed here inform the debates in the respective literatures. The chapters that follow present public opinion data to describe what the American people have believed about these issues over the past half century and to infer from this how, if at all, court decisions have influenced the public's views.
Peter Hanson
- Published in print:
- 2008
- Published Online:
- October 2011
- ISBN:
- 9780195329414
- eISBN:
- 9780199851720
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195329414.003.0009
- Subject:
- Political Science, American Politics
In the nearly two decades since Texas v. Johnson, public opposition to flag burning did not changed. But support for an amendment to overturn the decision did wane, and the public no longer views ...
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In the nearly two decades since Texas v. Johnson, public opposition to flag burning did not changed. But support for an amendment to overturn the decision did wane, and the public no longer views flag burning as a high-priority issue. The public was not persuaded by the Supreme Court's arguments that flag burning is a legitimate form of political speech, but many people are loath to tinker with the Constitution—even to prevent something they despise. Without public support, the Senate has not been able to muster the two-thirds vote required for a constitutional amendment. Supporters of the amendment are more likely to be Republican, moral traditionalists, people who are highly patriotic, and those with less education. Opponents of the amendment are more likely to be Democratic and people with high levels of education.Less
In the nearly two decades since Texas v. Johnson, public opposition to flag burning did not changed. But support for an amendment to overturn the decision did wane, and the public no longer views flag burning as a high-priority issue. The public was not persuaded by the Supreme Court's arguments that flag burning is a legitimate form of political speech, but many people are loath to tinker with the Constitution—even to prevent something they despise. Without public support, the Senate has not been able to muster the two-thirds vote required for a constitutional amendment. Supporters of the amendment are more likely to be Republican, moral traditionalists, people who are highly patriotic, and those with less education. Opponents of the amendment are more likely to be Democratic and people with high levels of education.
George P. Fletcher
- Published in print:
- 1995
- Published Online:
- October 2011
- ISBN:
- 9780195098327
- eISBN:
- 9780199852901
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195098327.003.0007
- Subject:
- Philosophy, Moral Philosophy
In the course of the twentieth century, flag desecration came to be understood as symbolic speech offensive to observers. In 1989, the Supreme Court declared state legislation prohibiting flag ...
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In the course of the twentieth century, flag desecration came to be understood as symbolic speech offensive to observers. In 1989, the Supreme Court declared state legislation prohibiting flag desecration unconstitutional on the grounds that causing offense does not override freedom of expression. In response, Congress passed legislation prohibiting flag desecration as inherently wrong, even in private. In 1990, the Supreme Court, unable to accept an arbitrary statue, interpreted the law as preventing offense and declared it unconstitutional. Viable flag protection legislation must be directed at the means in which the message is expressed rather than at the message. Such legislation could be based upon a neutral interest in protecting rituals that promote national solidarity. Three strategies for implementing legislation to protect the flag are the insistence on the use of “effective alternative means” of communication, developing a collective sense of public decency and defining the duties of respect that the individual owes the community.Less
In the course of the twentieth century, flag desecration came to be understood as symbolic speech offensive to observers. In 1989, the Supreme Court declared state legislation prohibiting flag desecration unconstitutional on the grounds that causing offense does not override freedom of expression. In response, Congress passed legislation prohibiting flag desecration as inherently wrong, even in private. In 1990, the Supreme Court, unable to accept an arbitrary statue, interpreted the law as preventing offense and declared it unconstitutional. Viable flag protection legislation must be directed at the means in which the message is expressed rather than at the message. Such legislation could be based upon a neutral interest in protecting rituals that promote national solidarity. Three strategies for implementing legislation to protect the flag are the insistence on the use of “effective alternative means” of communication, developing a collective sense of public decency and defining the duties of respect that the individual owes the community.
