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Matters of Principle: Legitimate Legal Argument and Constitutional Interpretation

Richard S. Markovits
Copyright Date: 1998
Published by: NYU Press
Pages: 466
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  • Book Info
    Matters of Principle
    Book Description:

    The United States is generally believed to be a liberal, rights-based culture. In such a society, according to Richard S. Markovits, arguments of moral principle dominate legal discourse. Markovits analyzes various rights related to our society's basic duties of showing appropriate, equal respect for all creatures capable of moral integrity and appropriate, equal concern for their actualizing this potential. By taking moral- and legal-rights arguments seriously, the book counters the tendencies of legal academics to substitute non-right-focused policy analysis for rights analysis and of judges to indulge their own political preferences under the guide of executing arcane, morally-disconnected "legal analysis." Ranging widely and covering in depth such flashpoint issues as educational rights, minimum real-income rights, privacy rights, abortion, parenting, sexual liberties, and the right to die, Matters of Principle is a deeply engaged and thoughtful work, certain to be controversial and much debated.

    eISBN: 978-0-8147-9640-5
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction
    (pp. 1-11)

    This book presents a coherent, comprehensive account of morally-legitimate legal argument in our culture. In essence, it develops an anthropological, secular version of natural-law jurisprudence. Its approach is anthropological and secular in that it substitutes empirical observation (that, admittedly, is philosophically informed) for purely-abstract theological or philosophical reasoning. The central jurisprudential conclusion of the book is that our society is morally committed to making “arguments of moral principle” the dominant form of legal argument and that such arguments will yield internally-correct answers to all legal-rights questions. I argue that the contrary abstract positions taken by virtually all contemporary legal philosophers,...

  5. 1 Legitimate Legal Argument and Constitutional Interpretation: My Position
    (pp. 12-89)

    This chapter develops a model of legitimate legal argument in the United States and investigates its implications for Constitutional interpretation in this country. Its account of legitimate legal argument is based on the premise that in our culture legitimate argument about “what the law is” is not autonomous. To be legitimate, an argument about the internal-to-law right answer to a legal-rights question must be consistent with our culture’s moral commitments. For this reason, the chapter begins by arguing that ours is a liberal, rights-based culture. In particular, it argues that our society isrights-basedin that moral rights act as...

  6. 2 Alternatives
    (pp. 90-194)

    Chapter 1 set forth my position on legitimate legal argument and legitimate Constitutional interpretation in the United States. This chapter compares my position with the positions others have taken on the moral principles to which we are committed, legitimate legal argument in our culture in general, and the appropriate kinds of arguments for American courts to use when interpreting the United States Constitution. Since the twelve alternatives this chapter discusses differ significantly from each other, it should be no surprise that my reasons for rejecting each of them are somewhat different. Nevertheless, two of my objections apply sufficiently often to...

  7. 3 The Duty of Appropriate, Equal Respect: Some Constitutional-Law Implications
    (pp. 195-271)

    This chapter analyzes various issues raised by a liberal State’s duty of appropriate, equal respect. Chapter 4 focuses on its duty of appropriate, equal concern. Since the duty of appropriate, equal concern is a corollary of the duty of appropriate, equal respect, it is somewhat misleading to consider these two duties in separate chapters. I have done so despite this fact because the two duties raise significantly different analytical, empirical, and doctrinal issues.

    Chapter 3 has seven sections. The first elaborates on the respect-related obligations of a liberal State. The second explains and illustrates the appropriate way for courts to...

  8. 4 The Duty of Appropriate, Equal Concern: Some Constitutional-Law Implications
    (pp. 272-373)

    A liberal State is obligated to show appropriate, equal concern for all moral-rights holders for whom it is responsible—most importantly, to show such concern for their actualizing their potential to become and remain individuals of moral integrity. This obligation has two basic implications. First, a liberal State has a duty to take all appropriate steps to enable such moral-rights holders to make meaningful choices about whether to fulfill their obligations, which personal ultimate values to support, and how—given their obligations, rights, values, tastes, talents, and opportunities—to lead their lives. Second, a liberal State has a duty to...

  9. Conclusion
    (pp. 374-376)

    The moral identity of the United States is defined by its standardforliving, not by its standard of living.

    More specifically,

    (1) our society is a liberal, rights-based society, which is morally committed to basing its moral-rights discourse on the moral principle that all moral-rights holders are entitled to appropriate, equal respect and appropriate, equal concern for their actualizing their morally-defining potential to become and remain individuals of moral integrity;

    (2) our society is also morally committed to making arguments derived from this principle the dominant type of legal argument;

    (3) such arguments of moral principle are supposed to...

  10. Notes
    (pp. 377-444)
  11. Author Index
    (pp. 445-447)
  12. Case Index
    (pp. 448-450)
  13. Subject Index
    (pp. 451-455)
  14. About the Author
    (pp. 456-456)
  15. Back Matter
    (pp. 457-457)