Earned Rights



The latest round of abortion restrictions often relies on a reconceptualization of rights: the idea that constitutional protections apply only when they are deserved or earned. State and federal courts have expanded rights for those they deem to be deserving, including unwed fathers, intended and functional parents, and same-sex couples seeking marriage. This Article develops a theory of “equal earned rights,” tracing their development over the course of these decisions. By chronicling the recent history of earned-rights claims, this Article offers a more complete view of how earned rights can function as a tool in constitutional interpretation. This history shows that the concept of “deserving” right-holders can be applied either to constrict or expand liberty, with repercussions that are particularly significant for those who do not conform to popular norms. To approach earned-rights logic in a more principled way, this Article recommends that courts shift their focus from interrogating behaviors and motives to questioning whether a claimant differs in salient ways from those whose rights have already been recognized.

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