Academic

O'Rourke on Hohfeld & Constitutional "Rights"

By Lawrence Solum

Allen Thomas O'Rourke (Harvard Law School) has posted Refuge from a Jurisprudence of Doubt: Hohfeldian Analysis of Constitutional Law on SSRN. Here is the abstract:

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.

Recommended. This article provides both a wonderful introduction to Hohfeld and a very useful critique of conceptual sloppiness in the use of the phrase "constitutional right." Anyone who works in constitutional theory will benefit from this, and it will be especially useful for those who are unfamiliar with Hohfeld.

Full post as published by Legal Theory Blog on March 17, 2009 (boomark / email).