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Revoking Rights University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2015 Revoking Rights Craig J. Konnoth University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Human Rights Law Commons, Law and Race Commons, Legal History Commons, Sexuality and the Law Commons, and the Social Welfare Law Commons Citation Information Craig J. Konnoth, Revoking Rights, 66 HASTINGS L.J. 1365 (2015), available at https://scholar.law.colorado.edu/articles/711. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: 66 Hastings L.J. 1365 2014-2015 Provided by: William A. Wise Law Library Content downloaded/printed from HeinOnline Thu Jul 20 19:14:11 2017 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Revoking Rights CRAIG J. KONNOTH* In important areas of law, such as the vested rights doctrine, and in several important cases-including those involving the continued validity of same-sex marriages and the Affordable Care Act-courts have scrutinized the revocation of rights once grantedmore closely than the failure to provide the rights in the first place. This projectclaims that in so doing, courts seek to preserve important constitutionalinterests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greaterdegree than a failure to afford rights at the outset. On the other hand, the institution revoking rights is more likely to exhibit impermissible behavior when taking away ratherthan failing to provide the right. This is the first of two articles, and tackles the first of the project's claims. It examines the autonomy interests of the rights holder that are implicated in rights revocation. It relies on philosophical understandings of ownership, backed by empirical research, to argue that our identities and indeed, our ability to think of ourselves as separate beings apartfrom the collective, are partially based on what we possess at a given point in time. The rights we possess both allow us to do things that aid in ourflourishing and allow us to conceive of ourselves as individuals. Important legal concepts, such as the vested rights doctrine, among others, rely on this understandingof rights. However, the notion of rights,possession, and revocation are all constructed and subject to contestation. Courts and other institutional actors often face adversaries making (conflicting) rights claims. They must determine when a change in rights allocation is a rights revocation or a restoration of the status quo ante. In taking sides, courts and legislatures adopt rights revocation/restorationframes, claiming that the winners have rights that are being restored, and that losers never had rights to begin with, or that their rights existed temporarily subject to correction. In so doing, institutionalactors also shore * Sharswood Fellow and Lecturer in Law, University of Pennsylvania Law School. J.D., Yale, 2oio; M.Phil., University of Cambridge 2oo7. The author wrote this Article while he was Deputy Solicitor General at the California Department of Justice. For their helpful comments and thoughts, my thanks to Gregory Ablavsky, Tobias Barrington Wolff, Mitchell Berman, Robert Ellickson, Doug NeJaime, Holning Law, Sophia Lee, Noah Zatz, Jonathan Michaels, Russell Korobkin, Michael Boucai, Geoffrey Upton, Satyanand Satyanarayana, the Williams Institute Fellows Workshop, and the faculty workshop series at UCLA Law School. Thanks to the staff of the Hastings Law Journal for wonderful editorial and research assistance. The views and errors in this Article are my own. [13651 1366 HASTINGS LAW JOURNAL [Vol. 66:1365 up their own legitimacy, often at the cost of each other. This dynamic provides an insight, not just into the work that rights do in constructing individuals, but also in developing institutionallegitimacy. It shows how institutions themselves exploit rights claims in order to -consciously or not-further their own agendas. June 20151 REVOKING RIGHTS TABLE OF CONTENTS IN TROD U CTION .............................................................................................. 1367 I. RIGHTS OWNERSHIP AS CONNECTEDNESS .............................................. 1375 A . E MBEDDED R IGHTS ................................................................... 1377 B. TAKING AWAY EMBEDDED RIGHTS ......................................... 1382 C. AN ALTERNATIVE CONCEPTION OF OWNERSHIP ...................... 1384 II. CONNECTEDNESS IN LEGAL DOCTRINE ................................................. 1385 A. RIGHTS CONNECTEDNESS IN LEGAL HISTORY .......................... 1386 -. "Vesting" of Property........................................................ 1387 2. Pre-American Accounts of Blood Ownership ................ 1392 3. Blood Ownership in Nineteenth Century America ......... 1395 a. British Ownership in PostcolonialAmerica ............. 1395 b. Slave Property Ownership .......................................... 1398 c. Blood Ownership and Connectedness in the Post- Civil War Confiscation Debates ................................. 1399 B. DOCTRINAL ASPECTS OF VESTEDNESS AND THE CONNECTEDNESS APPROACH TO OWNERSHIP .......................... 1404 -. DoctrinalCriteria of Vestedness .................................. 14o6 a. D eliberative Function ............................................... 14o8 b. Legitim izing Function................................................. 1409 c. Bargainingand Dignity Recognition ......................... 1409 2. Vested Rights Applied: The Same-Sex Marriage C ases ................................................................................... 1 411 C. VESTEDNESS OUTSIDE THE VESTEDNESS CONTEXT ................. 1417 -. Other Contexts Where Rights Connect ............................ 1417 2. N FIB v. Sebelius ................................................................ 1419 III. RHETORIC AND RIGHTS, REVOCATION, AND RESTORATION ................. 1427 A. CONCEPTUALIZING RIGHTS REVOCATION ................................. 1428 B. CONSTRUCTING RIGHTS AND REVOCATION ............................... 1431 i. C onstructingR ights ........................................................... 1432 2. C ompeting R ights .............................................................. 1434 3. ConstructingRevocation ................................................... 1435 C. INSTITUTIONAL CONFLICT AND LEGITIMACY CLAIMS- DESCRIBING THE PERPETRATORS ............................................... 1438 C ON CLU SION ................................................................................................ 1442 INTRODUCTION Can the government take away rights or benefits from individuals or entities once they have been granted? In recent cases involving hot button issues such as same-sex marriage litigation as well as Medicaid expansion and in more mundane welfare or child custody cases, courts and HASTINGS LAW JOURNAL [Vol. 66:1365 advocates have argued that in certain situations, the answer is no. Their reasoning relies on a long history of judicial hostility to rights revocation. This Article contends that this hostility is based on an understanding that already endowed rights are embedded in, connected to, and constitute individuals or entities-their personhood and identities-in a way that rights that have yet to be granted are not. Taking away previously granted rights fundamentally alters the nature of the existence and identity of the individual or entity, and must therefore be closely scrutinized. Given this understanding, the battle often shifts to the question of what a right is, or what should be understood as a revocation- questions that are subject to social, legal, and political contestation, the consequences of which often determine the outcome in these cases. This understanding of endowed rights as deeply shaping one's identity and being has deep roots, both philosophical and empirical, as Part I explains. The philosophical account proceeds in two different ways. On the one hand, we exercise rights we possess to develop our personhood. On the other hand, these rights are part of who we are, shaping our sense of self. These claims are empirically supported by phenomena that developmental and behavioral psychologists refer to as self-anchoring and the endowment effect. I call this the "connectedness" account of rights ownership to distinguish it from other concepts of ownership that do not depend upon the connection between the individual and the property or right. Part II turns to legal concepts and doctrines that have long
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