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Unpublished Paper
Avoiding the Guillotine: The Need for Balance and Purpose in Determining Fundamental Rights under the Fourteenth Amendment
(2015)
  • Timothy A Campbell, University of Dayton
Abstract

This Article examines the need to bridge the two fields of thought in fundamental rights jurisprudence. This Article argues two points. Broadly, an objective principle to determine fundamental rights is non-existent because rights by their nature are subjective. Hence, the Court must accept some subjectivity, but it needs to install guideposts to direct the judge’s discretion. The Court also needs to adopt a balanced approach that combines rationalism and traditionalism. They need to look at the purpose of the asserted right, the specificity of the asserted right, legal precedent, and history in formulating a balanced approach.

Keywords
  • fundamental rights,
  • fourteenth amendment,
  • legal theory,
  • rights
Publication Date
2015
Citation Information
Timothy A Campbell. "Avoiding the Guillotine: The Need for Balance and Purpose in Determining Fundamental Rights under the Fourteenth Amendment" (2015)
Available at: http://0-works.bepress.com.library.simmons.edu/timothy_campbell/2/