Rights Theories in the American Constitutional Tradition

After nearly two centuries of American constitutional law judges and scholars continue to disagree as to the nature and source of constitutional rights. Thus there is also disagreement as to the nature of the judicial task in constitutional cases. In this paper I identify three basic approaches to constitutional rights: The textualist theory supposes that judges can resolve constitutional disputes by relying upon the text of the constitution. The traditionalist theory asserts that political and cultural traditions are the true sources of constitutional rights. And the rationalist theory of rights states that we must fashion our constitutional liberties from our own moral and political theories. I argue that the textualist theory is untenable and that the traditionalist theory is ill-defined. The rationalist theory is coherent, but sheds no light upon the necessary choice of a particular moral or political theory.