This lecture was published as Individual Rights and the Powers of Government in the Georgia Law Review, Vol. 27, No. 2 (Winter 1993), pp. 343-390.

Abstract

My basic thesis is that, in American constitutional law, rights typically do not operate, as we often assume, as conceptually independent constraints on the powers of government. We have no way of thinking about constitutional rights independent of what powers it would prudent or desirable for government to have. Balancing tests offer an obvious, banal example: the interests supporting claims of right are balanced against interests in upholding governmental power to determine what rights we actually have. But there are other, deeper interconnections as well. Throughout our structure of constitutional discourse, I shall argue, rights are conceptually interconnected with, and occasionally even subordinate to, governmental powers.

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