You are on page 1of 1

[W01032509]

Synopsis: Simon Chap. 1

p. 1 of 1

TITLE: Stephen A. Simon, Universal Rights and the Constitution, (State University of New
York Press, 2014).
THESIS: There is ambiguity regarding how jurists view the foundation of individual rights. The
current legal landscape purports to eschew universal arguments, yet many decisions rely upon a
combination of universal and particular arguments. Jurists should be more transparent about their
use of universal argumentation.
MAJOR POINTS:
A fundamental ambiguity in American constitutionalism arises from the question of how
particular and universal arguments are employed in the process of decision-making.
Particular arguments refer to reasoning based upon a nations political and legal context.
They provide reasons for people to accept decision that they might otherwise reject on
purely substantive grounds.
Universal arguments refer to reasoning beyond the context of a specific nation. Such
arguments provide Judges, in certain situations, with reasons to rule against popular
opinion or political enactments.
Universal arguments are often equated with natural law. Natural law is often downplayed
because it is frequently associated with religious faith and the prioritization of property
rights. However, universal rights do not necessarilyimplyspecificpositionson
theologicalorpoliticalissuesandtheydonotalwaysoperateinamechanisticfashion.
The exclusivist approach to interpretation requires Judges to employ only particular
arguments.
The universalist approach to interpretation allows Judges to appeal to the force of
universal standards or principles.
Justicesoftenintermingleuniversalandparticularargumentswithoutexplainingthe
relationshipbetweenthetwo.
Theeffectivenessofauniversalargumentisreducedwhenitisambiguouslycombined
withotherparticulararguments.
Theschoolofaspirationalismconsidersrightstoembodyabstractmoralprinciples
andtheactofjudgingtorequiremoralreasoning.Aspirationalistsfailtoacknowledge
therolethatuniversalargumentsplayintheirmoralanalysis.
Jurists should use a dual-stage review. Most cases will only require the first stage, which
employs particular arguments. These arguments will allow a judge to discern what a
constitutional provisions requires. In rare occasions, jurists should employ the second
stage of argumentation, universal argumentation, in order to explain why a publicly
accepted action is unacceptable.
Universal arguments should only be used to set the outer bounds of policy.
Universal arguments are employed by jurists to a much greater extent than most would
admit. Jurists and scholars should acknowledge the substantial role that universal
arguments play in policy and decision-making.
Transparency, regarding the use of universal argumentation, would make it easier for
other legal actors to follow precedent.

You might also like