Vol. 16 No.1 (January 2006), pp.1-3

 

THE LOGIC OF CONSTITUTIONAL RIGHTS, by Eric Heinze.  Burlington, VT: Ashgate Publishing Company, 2005. 122pp. Hardback. $99.95/£55.00.  ISBN: 0-7546-2538-9.

 

Reviewed by Georg Vanberg, Department of Political Science, University of North Carolina at Chapel Hill. E-mail: gvanberg [at] unc.edu

 

Eric Heinze’s THE LOGIC OF CONSTITUTIONAL RIGHTS is a short book with a well-defined, narrow purpose. Heinze sets out “to chart the structure of arguments” (p.73) about constitutional rights and to demonstrate that all such arguments have a common logical foundation. Specifically, Heinze argues that claims about “asserted” constitutional rights always involve claims about “harms” and about “consent,” and about the extent to which harm and consent are relevant/irrelevant or sufficient/insufficient for resolving a particular rights claim. Once the structure of these “generic” arguments has been identified, Heinze devotes a major effort of the book to translating the arguments into the language of symbolic logic, thereby underscoring the common “logic of constitutional rights.”

 

The book is organized into five brief chapters. Chapter 1 provides some background definitions and distinctions. Importantly, it lays the groundwork for a key feature of the book. Because the focus of the analysis is on the logical structure of arguments, Heinze treats key concepts as “placeholders” that are free of substantive content. Thus, he sidesteps arguments about what constitutes a “constitutional right” or “harm” (pp.14, 39). Instead, he adopts a convention of framing discussions around the “assertion” of constitutional rights (or harms) by agents involved in a dispute. This feature – which is intimately linked to the aim of the book – eliminates the need to decide thorny questions regarding the substantive content of these terms.

 

Chapter 2 is devoted to identifying the types of “agents” that may be involved in disputes about constitutional rights.  Heinze divides these agents into “parties” (typically the litigants) who make claims about constitutional rights in a case, and into “actors” (who may or may not be the same as the litigants) who have interests that are affected by the recognition, restriction, or denial of an asserted constitutional right. Actors, in turn, can be subdivided into those who would be harmed by the failure to recognize an asserted right (e.g., indigent patients that fail in their attempt to have a right to “free health care” recognized), as well as those who may be harmed by the exercise of a right that is recognized (e.g., individuals harmed by the revelations published by a constitutionally protected free press). Finally, actors do not need to be identifiable individuals; “society” can also be an actor that is allegedly harmed by the exercise of an asserted right. Along with this classification, Heinze develops a vocabulary for translating verbal claims about agents into succinct symbolic statements. [*2]

 

In Chapter 3, Heinze turns to the concept of “harm.” Once again, the chapter is organized around a number of distinctions that are then translated into symbolic notation. Heinze first distinguishes two kinds of harm: harm that is caused to actor A by the denial or restriction of an asserted constitutional right (e.g., inability to procure an abortion by restrictions of abortion rights), and harm that is suffered by actor B as a result of A’s exercise of an asserted constitutional right (e.g., emotional distress suffered by a husband after an abortion procured without spousal consent). In addition to this basic distinction, Heinze develops the concepts of “relevance” and “sufficiency.” Parties can assert that harms are either relevant to the recognition or restriction of an asserted right, or that they are irrelevant. Where harms are judged to be relevant, they may be either sufficient or insufficient to warrant recognition or restriction of an asserted right.

 

Chapter 4 is devoted to the other key concept: Consent. As in previous chapters, the main work of the chapter consists in drawing several distinctions that are then presented in symbolic notation. The first distinction is between actual consent that is given by an actor (“consent in fact”), and consent that is legally recognized, whether or not it has been given in fact (“consent in law”). This distinction creates a fourfold typology: Actual consent that is recognized in law (e.g., a professional boxer consents to being “battered” in the course of a bout and cannot sue), actual consent that is not recognized in law (e.g., a minor consenting to sexual acts), consent that is not in fact given, but that is still recognized in law (e.g., medical procedures performed on an unconscious accident victim), and consent that is not in fact given and not recognized in law (e.g., most criminal acts). Moreover, Heinze asserts, the notion of “consent” can be applied to “society” as well as to individuals through the notion of “public consent.” The remainder of the chapter is devoted to an examination of the relationship between the concepts of harm and consent. Specifically, Heinze argues that the concepts of the relevance and the sufficiency of harm create a connection between harm and consent, such that every argument about harm implies a corollary assertion about consent (and vice versa.)

 

In the last chapter, Heinze uses the various distinctions and typologies created in the first four chapters to identify several “background theories” that underlie specific arguments in support of recognition or restriction of asserted constitutional rights. For example, Heinze argues that “volitional liberalism” is a theory that grounds arguments about constitutional rights in the presence or absence of consent by individuals (p.89). Similarly, he classifies arguments that rest on a government’s claim to determine (independent of actual individual consent or a direct popular referendum) whether certain conduct poses sufficient “harm” to society to justify restrictions on the exercise of an asserted right as a “theory of constitutional democracy” (p.99). The book ends with a classification scheme (p.103) identifying the six “background theories” that, according to Heinze, exhaust the logical structure of arguments about constitutional rights. [*3]

 

The strength of this book, and its main contribution, lies in the careful distinctions Heinze draws in identifying the logical structure of the arguments that can be made in debates over constitutional rights (assuming that the actors involved have the desire to be coherent). The book lays out these alternative arguments clearly, it shows the relationship between competing claims, and provides numerous, well-chosen examples. Ironically, the use of symbolic notation (which serves primarily as an abbreviated form of presenting an argument rather than for the derivation of novel conclusions from axioms) often hinders, rather than eases this exposition by requiring the reader to familiarize herself with notation for distinctions that are already clear in prose form. Nevertheless, the book provides a useful, well-organized, and efficient analysis of the logic of rights claims. For law (or even undergraduate) classes on constitutional law that emphasize the logic of legal arguments, this book would make for useful supplementary reading.

 

It is less clear that the book has direct significance for broader scholarly debates. The distinctions that Heinze draws – while undoubtedly useful in clarifying arguments – are hardly controversial or new. (Once concepts like “harm” and “right” are emptied of substantive content, most scholars would probably agree that arguments about constitutional rights can be framed in the language of harm and consent.) Moreover, Heinze is so disciplined in sticking to his purpose (the book is barely 100 pages long), that he does not engage broader substantive issues or demonstrate the consequences (if any) of his analysis for scholars who are interested in the normative, explanatory, and predictive questions that he sidesteps by treating the key concepts as “empty placeholders.” In short, this book reminds us forcefully of logical distinctions involved in constitutional rights claims, but it fails to convince the reader that the analysis is relevant for broader issues of constitutionalism.

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© Copyright 2006 by the author, Georg Vanberg