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date: 27 September 2020

Abstract and Keywords

This chapter examines the status of positive rights in the U.S. Constitution, paying particular attention to disagreements about the nature of positive rights, the meaning and material foundations of the Constitution, and the significance of judicial enforcement. It first considers how positive rights are commonly defined and distinguished from negative rights, together with the view that positive rights are excluded from the Constitution. It then discusses the argument that there is no coherent distinction between positive and negative rights. Next, it traces the long history of the claim that positive rights are contained or implied in the Constitution, and then addresses the Supreme Court’s jurisprudence with respect to positive rights. The chapter concludes by describing the relatively recent scholarly emphasis on sources of positive rights other than the Constitution as interpreted by the Supreme Court.

Keywords: positive rights, Constitution, judicial enforcement, negative rights, Supreme Court

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