In this essay, I question Professor Fallon's strong rejection of the notion that "rights are trumps" by making four points. First, rights are trumps in the single, but important, sense that they preclude the exercise of powers granted to government by the constitutional text. Second, rights sometimes operate as trumps on governmental powers in the very purse sense that they cut off all consideration of governmental interests. Third, even when the Court considers government interests in dealing with rights, it often does so on such a restricted basis that the description of rights as "trumps" remains accurate. Finally, even accepting the proposition that the fixing of rights inescapably involves a broad-based balancing of government and individual interests, there is a need to state principles for striking the balance at a very high level of generality. In my view, given our long, wise, and textually compelled constitutional heritage of individual liberty and equality, there is much to be said, both descriptively and normatively, for a constitutional vocabulary that proclaims that, at least sometimes, rights are trumps.
Dan T. Coenen,
Rights as Trumps
Available at: http://digitalcommons.law.uga.edu/fac_artchop/139