APA Newsletters

Fall 2000
Volume 00, Number 1

Newsletter on Philosophy and Law

Recent Law Review Articles of Interest

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Luban, David. "The Warren Court and the Concept of a Right," 34 Harvard Civil Rights—Civil Liberties Law Review 7-37 (1999).

Luban argues that, even though the Warren Court’s activist legacy has fallen on hard times, with most contemporary appellate court judges and legal scholars embracing the rhetoric of judicial restraint, to the point of dismantling many Warren era precedents, the Warren Court has nonetheless produced a lasting achievement through its conception of a legal right. Instead of distinguishing between the judicial activism of the Warren bench, whereby judges may sometimes appeal to their own moral values in interpreting general constitutional language, and the currently prevalent philosophy of judicial restraint, under which judges should rest content with inferences from framers’ intent or plain language of a statute or constitutional provision, Luban suggests recasting the Warren Court’s work in light of an activism/reactivism dichotomy. From this perspective, the question is whether judges should secure rights through ex ante or indirect remedies, or confine themselves exclusively to reactive remedies—e.g., ex post punishment or compensation demands directed against rights violators.

The Warren Court’s answer was a resounding ‘yes’ to the broader range of options for securing rights. Thus, Miranda v. Arizona constituted an ex ante preventative measure to secure defendants’ Fifth Amendment rights by altering police behavior prior to possible violations of those rights, and the exclusionary rules prohibiting use of illegally obtained evidence constituted an indirect strategy for securing suspects’ Fourth Amendment rights by removing the incentive for violating them. Reactive remedies, by contrast, would only allow for compensatory litigation against the State, or punishment of individual police officers, without actually securing the right in question. Luban uses these cases, together with Griswold v. Connecticut, to make a case for the claim that reliance on ex ante and indirect remedies justifies the courts in recognizing secondary rights (e.g., a defendant’s Miranda rights) as a legitimate means for protecting primary rights, those easily recognizable in constitutional texts. This is, of course, a recipe for a form of judicial activism, but activism firmly grounded in the Court’s obligation to protect either constitutionally enumerated rights, or the social values which (as in Douglas’s Griswold opinion) explain the underlying purpose of having such rights explicitly enumerated in the first place. This is the form of judicial activism we should continue to embrace today.

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APA Newsletters

Fall 2000 Volume 00, Number 1

Fall 2000
Volume 00, Number 1