| Rights have besieged political theory for too long. These normative doctrines have not only jeopardized liberty but also cut short democracy frustrating democratic debate. This dissertation proposes to reject them. Instead, political theory ought to move to a particular regime of Justification. Rather than asking what areas or interests are beyond the scope of state regulation, we ought to ascertain the state's reason or justification for its actions. We should turn our attention away from individuals and groups focusing on the polity's rationale for acting. I proffer a particular theory of Justification that looks to legislative purpose contending, in the spirit of J.S. Mill, that the state can only seek to minimize demonstrable, non-consensual harm. Once we adopt it, rights turn out to be obsolete.; After laying out the problem of rights, I analyze Ackerman's neutrality thesis, Habermas' discourse theory, Rawls' public reason, and Oakeshott's civil association. I criticize these contemporary accounts of Justification and draw from them a more workable justificatory constraint. I argue that the democratic polity can only seek to prevent, regulate, mitigate demonstrable, non-consensual harm. By rejecting rights, my theory of Justification better balances the values of equality, freedom, and democracy.; Having outlined my account in ideal theory, I argue that constitutional law has taken a turn to it rejecting the core rights of the private sphere: property, religion, and privacy. During the New Deal, the Court effectively repudiated the right to property permitting regulation of the economy. Much of the Court's jurisprudence on religion has denied the special status of religion treating such groups as mere voluntary associations. In Lawrence v. Texas (2003) the Court repudiates morals legislation laying the groundwork for the rejection of privacy. In fact, a thorough appreciation of this turn to legislative purpose also relieves the need for a separate equal protection (suspect class/classification) analysis proffering a more satisfactory theory of judicial review. |
