AuthorSchauer, Frederick


  1. An Anomaly

    When someone's land is taken by the government, even if rightly in order to build a road, school, or hospital, the landowner is entitled to compensation for this rightful deprivation of the owner's right to property. (1) But when someone's First Amendment, equal protection, or due process rights are rightly deprived because of a clear and present danger or a compelling interest, the person whose rights have been rightly deprived gets nothing. This is the anomaly that motivates this Article.

    More abstractly, the question to be addressed here is about the rightful deprivation of rights, a question arising whenever rights are understood as nonabsolute--overridable--even within their scope of application. Consider two examples, both of which will be developed at greater length in what is to come. First, imagine a speaker whose otherwise-protected speech induces an angry and potentially violent reaction from a hostile audience. Under existing doctrine, law enforcement is required as a first resort to take action against the hostile audience and not the speaker. (2) But if such action is unavailing, and a genuine "clear and present danger" of mass violence still exists, then speakers can be restricted, even if they have done nothing wrong. (3) Assuming that there actually is a clear and present danger, then restricting speakers' First Amendment speech rights is rightful. And the speakers get no redress, even though they have been deprived of speech rights no less than property owners whose property rights are deprived by state takings. (4) The rightfully deprived holders of property rights are entitled to compensation while the rightfully deprived holders of First Amendment rights are not.

    Or consider Grulter v. Bollinger, (5) whose likely doctrinal obsolescence (6) as this is being written does not obscure the basic analytic point. Barbara Grutter applied to the University of Michigan Law School and was rejected. (7) Her subsequent lawsuit was based on the apparently sound empirical claim that, given her qualifications, she would likely have been admitted but for the affirmative action policies of the University of Michigan Law School. (8) In the Supreme Court, Justice O'Connor's majority opinion implicitly acknowledged that Crutter had been denied her equal protection rights by virtue of having been the victim of a policy that preferred other applicants because of their race. (9) But those rights were not absolute, the Court concluded, and thus the Michigan Law School, by demonstrating a compelling state interest in taking race into account, had acted rightly. (10) Grutter's equal protection rights had been denied, but rightly so. Grutter was consequently entitled to nothing, despite the denial of her rights, because the rightfulness of the denial precluded compensation, once again in marked contrast to the compensation routinely available to those whose property rights are similarly rightfully denied.

  2. On Rightful and Wrongful Deprivations

    The anomaly just described emerges from the premise of there being rightful deprivations (or restrictions) (11) of rights. Although describing rights deprivations as "wrong" has a felicitous symmetry, felicitous turns of phrase are often misleading, as with characterizing rights deprivations as "wrong." (12) Both positive law and generations of philosophy have recognized that rights may be overridden by other rights or policy considerations of great strength. (13) When that is so, a restriction of rights is not wrong, but may, on balance, be rightful.

    Even when rights are rightfully restricted, however, the right holder has still lost something. The holder of a free speech right that is overridden by a clear and present danger" has still lost the ability to exercise a constitutional right. And so too when holders of equal protection rights have those rights overridden by compelling state interests, or when due process and free exercise rights are similarly overridden. (15) In all such cases, the rights deprivation is rightful, but the rightfulness of the deprivation is not inconsistent with the right holder having been deprived of the ability to exercise a right.

    The question, then, is whether the loss of a right does or should entitle the rightfully restricted right holder to some form of redress, or even compensation. We might suppose that to be so, and that those whose rights are overridden in the interest of other rights or for the public good are as entitled to redress or compensation for their loss of rights as is the landowner whose land is rightfully taken for the public good. (16) Yet the law rarely entitles the right holder whose rights are rightfully deprived to compensation or other redress.

    In addressing this question, the analysis will be about rights against the state, in particular the most familiar constitutional rights. (17)

    And although the analysis proceeds from the premise that there are rightful deprivations of rights, this is not to deny that many, perhaps most, deprivations of constitutional and related rights arc simply wrong. Most acts of discrimination on the basis of race, gender, and sexual orientation are wrongful deprivations of the right to be free from such discrimination. (18) Similarly, restrictions on political communication designed to entrench the power of political leaders and immunize them from criticism are legally and morally wrongful deprivations of the right to freedom of speech. (19)

    But although many rights deprivations are indeed wrong, others are not. (20) A quarantine aimed at preventing the spread of an epidemic will restrict rights to personal liberty and freedom of movement but may be necessary as a matter of morality and public policy. (21) And when the state takes private land by eminent domain in order to build a highway, a school, or a hospital, it infringes rights to private property in order to enhance the general welfare. (22) And so too with some of the justified restrictions on free speech, equal protection, and due process rights noted above.

    Even though a taking of land for a legitimate public purpose renders the deprivation of property rights justifiable, the positive law of most industrial democracies still provides for compensation to landowners as redress for the deprivations of those property rights. (23) And philosophers have long argued that the victim of a rights deprivation should be entitled either to redress or some form of repair, with rights deprivers being required to put those who have had their rights deprived in as good a position, or almost a good a position, as they would have been had the deprivation not occurred. (24) Indeed, sometimes even an apology or sincere expression of regret--"I feel your pain"--might count as a form of redress.

    Although redress of some sort seems intuitively plausible when rights have been deprived, that intuition is rarely reflected in the positive law when the rights deprivation is considered rightful. In contexts other than the taking of property, the legitimacy of a justification for infringing a right appears ordinarily to extinguish the right holder's claim to compensation or other tangible redress. When legitimate interests in national security, for example, are taken to justify what would otherwise be a "restriction on freedom of speech," (25) those who endorse such a restriction are rarely heard to suggest that those who are restricted are entitled to any redress at all. When the interest in diversity overrides the right to be free from decisions made on the basis of one's race, as in Grutter, (26) existing law again offers no compensation or redress for those whose rights have been justifiably infringed. And when the Religious Freedom Restoration Act allows the rights it entrenches to be overridden in cases of compelling state interest, it says nothing about what might be owed to those who rights are so overridden. (27)

    This Article starts with an abstract exploration of the structure of rights, paying particular attention to the claim that rights can be overridden (or outweighed) and still count as, and function as, rights. Then, drawing on the philosophical idea of a moral residue, it examines the claim that duties may persist--create a residue--even when those duties are overridden. And if that is so with respect to duties and obligations, then so too with rights. Accordingly, the argument then turns to overridable rights, and to the peculiarity of thinking that there is no analog to the idea of a moral residue in the case of rights that are rightfully overridden, with property and its associated takings doctrine being the noteworthy exception. (28)

    Although the failure to provide redress for those whose rights have been sacrificed to other rights or to the public interest might seem inconsistent with "taking rights seriously," and although that failure might suggest that our existing practices of noncompensation and nonredress are in need of radical revision, this Article concludes with an alternative and less conventional understanding of the nature of a right and of what the right holder gets by virtue of holding a right.

    And if this alternative and unconventional picture of the nature and structure of rights is sound, it may provide not only a plausible justification for the seemingly anomalous failure to compensate those whose rights have been rightfully infringed, but also to suggest that perhaps it is compensation in the case of property and not noncompensation in the case of other rights that is truly the anomaly and truly in need of additional justification.


      It is a commonplace that rights may be overridden. (29) Susceptibility to override is not a necessary feature of rights. Some rights may be absolute--infinitely stringent in the face of considerations inclining in the opposite direction. (30) And some theorists have argued that rights are by definition absolute, such...

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