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Academic

: Legal Theory Blog

West on Unenumerated Duties

By Lawrence Solum

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Robin L. West (Georgetown University Law Center) has posted Unenumerated Duties (University of Pennsylvania Journal of Constitutional Law, Vol. 9, p. 221). Here is the abstract:

The article aims to make problematic the relative absence of questions about the affirmative duties of legislators to pass laws to achieve various welfarist ends in liberal constitutional theory. The duty to legislate for the public good is a bedrock of both classical and modern liberal theory, yet there is almost nothing in liberal constitutional theory about the possible constitutional grounding of the moral duties, whether enumerated or unenumerated, of legislators. The full explanation for this absence rests on a set of jurisprudential assumptions that lead moral questions about governance to be understood solely as adjudicative questions of law. Yet it has become quite clear that governmental officials can on occasion be in profound breach of their non-justiciable duty to provide "protection of the laws." If that matters, then constitutional lawyers and scholars ought not wall themselves off from the ensuing dialogue regarding the nature of that duty and its breach.

I was at the conference on unenumerated rights at the University of Pennsylvania, when west presented this paper, which is highly recommended.

Full post as published by Legal Theory Blog on September 15, 2008 (boomark / email).