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.
Professor Bhagwat 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.
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