David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Constitutional analysis often contains ambiguity surrounding the word "right" and other legal concepts. The Supreme Court uses the word equivocally to mean a claim, liberty, power, or immunity. The Court also invokes amorphous concepts such as "right of privacy." This article offers an analytical framework to resolve such ambiguity. First, the article explains a canonical theory developed by Professor Wesley Hohfeld to clarify similar ambiguity in private law and shows how Hohfeldian analysis extends to constitutional law. Second, the article applies Hohfeldian analysis to four notable Supreme Court decisions, including Texas v. Johnson and Grutter v. Bollinger, and clarifies the word "right" in each. In sum, this article clarifies the nature of constitutional rights and provides a powerful tool for resolving conceptual ambiguity in constitutional analysis.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Michel Rosenfeld (2010). The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community. Routledge.
Grant Huscroft & Bradley W. Miller (eds.) (2011). The Challenge of Originalism: Theories of Constitutional Interpretation. Cambridge University Press.
Moshe Cohen-Eliya & Iddo Porat, American Balancing and German Proportionality: The Historical Origins.
Francis Wharton (1884/2001). Commentaries on Law: Embracing Chapters on the Nature, the Source, and the History of Law, on International Law, Public and Private, and on Constitutional and Statutory Law. Gaunt, Inc..
Added to index2009-03-15
Total downloads8 ( #163,493 of 1,096,570 )
Recent downloads (6 months)1 ( #258,571 of 1,096,570 )
How can I increase my downloads?