The central purpose of this book is to identify and explain the moral foundations of
constitutional rights, the moral reasons that justify recognizing and applying them
in the legal system of a nation state. A necessary preliminary is to understand what
constitutional rights are. Hence, the fi rst two chapters deal with constitutional law
and constitutional rights respectively. I argue that any adequate theory of constitutional
rights needs to explain four species of rights: rights of governing institutions,
public offi cials, private persons and associations.
Judges sometimes appeal to moral reasons when they interpret the content of an
established constitutional right or decide whether some claimed constitutional right
really exists. Hence, there are many references to Supreme Court cases in Chaps. 3 ,
4 , 5 and 6 . These illustrate judicial reasoning about how moral reasons succeed or
fail to ground an actual constitutional right.
The focus of Chaps. 3 , 4 , 5 and 6 is ongoing political debates about controversial
constitutional rights, some established in United States law and others merely proposed.
It is here that the moral reasons for or against any constitutional right are
most easily identifi ed and their relevance most clear. Many of these debates are
described in some detail and examined with care in these chapters. My examinations
are critical, that is, they go beyond merely describing these debates to an
assessment of the relative importance of the pro and con reasons advanced and to
reach conclusions about whether each of these constitutional rights ought or ought
not to be retained in our legal system or introduced into it.
I do not imagine that I can settle any of these debates. My intentions are to assist
others to continue the ongoing discussion of controversial rights more reasonably
and to reach some theoretical conclusions about when and how moral reasons succeed
or fail to justify any constitutional right. Although the focus of this book is on
constitutional rights in the United States, my theoretical theses and assessments of
the relevant moral reasons will be applicable to the constitutional law of many other
nation states.