Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2015 The Inversion of Rights and Power Philip A. Hamburger Columbia Law School,
[email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Philip A. Hamburger, The Inversion of Rights and Power, 63 BUFF. L. REV. 731 (2015). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1103 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact
[email protected]. BUFFALO LAW REVIEW VOLUME 63 AUGUST 2015 NUMBER 4 The Inversion of Rights and Power PHILIP HAMBURGERt INTRODUCTION No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right? The courts repeatedly say that claims of constitutional rights must give way to government interests. The courts even sometimes say that a compelling government interest justifies the infringement of a right-as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right."' In support of such doctrine, it often is said that rights are "not absolute." t Maurice & Hilda Friedman Professor of Law, Columbia Law School. The author is grateful for comments from Henry Monaghan, Jamal Greene and more generally from the Columbia Faculty Workshop. All quotations in this Article, other than those from the Constitution, are rendered in conventional modern English-that is, they are reproduced with modern spelling and capitalization, and without italicization, and abbreviations are spelled out.