期刊名称：Reason Papers : A Journal of Interdisciplinary Normative Studies
印刷版ISSN：0363-1893
出版年度：1988
卷号：13
出版社：Reason Papers
摘要：hen a citizen claims that a cong-ressional act or state statute tfiolates his or her rights, what is a judge to do? In recent w years we have witnessed a tumultuous debate about this issue between judicial "conservatives" and liberal^,"^ In Part 1 of this article, I shall desctibe each of these two positions and explain why both are constitutionally suspect. In Part 11, I shall suggest that both of these positions stem from a skepticism about the existence of rights antecedent to government. I shall contend that, whether or not such a skeptical posture is philosophically warranted, it sterilizes a Constitution that was written by persons who believed in the existence of such rights. In Part 111, I distinguish the "external" from the "internal" functions that individual rights should perfonn in constitutional analysis. Finally, in Part N, I address the concerns of some that letting judges pursue justice will inevitably result in the "tyranny of the judiciary,"
