Constitutional Rights and the Structure of Government

Abstract This chapter argues that the gap between historical and modern understandings of rights matters a great deal, because when modern courts actually enforce the Bill of Rights and the rest of the Constitution (notably the Thirteenth, Fourteenth, and Fifteenth Amendments — generally called the Civil War Amendments), their decisions are heavily shaped by the traditional understanding of rights as collective measures designed to control governmental abuse of power. In fact, the influence of the original, collective view of rights on modern law remains profound, indeed overwhelming. To explain this point fully the chapter further develops two topics. First, it discusses in more detail how and why legal, constitutional rights differ from natural, individual rights of autonomy, focusing in particular on the close relationship between rights and structural limits on governmental power. Second, it argues that despite the other, radical changes that occurred in the constitutional system as a consequence of the Civil War and Reconstruction, the role of rights in our legal system did not change fundamentally. In particular, even though for a period of time in the early 20th century the Supreme Court was enforcing a more individualistic version of constitutional rights, that approach has largely (but not entirely) been abandoned in the modern, post-World War II era.