Conflicts of Rights: When the Federal Constitution Restricts Civil Liberties

Abstract

“It is elementary that States are free to provide greater protections . . . than the Federal Constitution requires,” California v. Ramos, 463 U.S. 992, 1013-14 (1983), and the same goes for Congress, so far as it operates within its constitutional powers. Indeed many of our civil rights and liberties are protected by statutes or by state constitutions. But this principle has its limitations: sometimes the Federal Constitution can limit the ability of Congress or the States to expand civil liberties. In other words, sometimes the Federal Constitution is not just a floor for civil rights, it is also a ceiling. This occurs whenever civil rights conflict. Thus, conflicts among civil rights present a potentially troublesome form of judicial review since they may limit the ability of the democratic process to provide more freedom. And yet, as we shall see, courts often resolve these conflicts with little more than a flick of the wrist. This Article analyzes claims of conflicts of rights arising under the Federal Constitution and examines the argument that such conflicts do not lend themselves to rational resolution—a contention based, inter alia, on Isaiah Berlin’s thesis of the incommensurability of fundamental values.