Indeed, Mill’s chief legacy in American constitutional law surely must be the harm principle. We can scarcely have a conversation any longer about the powers of our government and the rights and duties of American citizens without recurring almost reflexively to the idea of “harm.” It is the sort of principle that ought to command self-evident and inarguable assent. Those that can ground their doctrinal innovations in some persuasive claim about harm have earned themselves a ticket to the amusement park of constitutionally legitimate argument. Others then dutifully rush in to challenge the proffered formulation of harm, showing why it misses some or other harm-relevant consideration. But nobody really disputes that harm is the applicable metric. Hill shows lucidly that constitutional law, especially in substantive due process and First Amendment doctrine, has Mill to thank for this.
The ascendancy of the harm principle in American law has led to the twin phenomena of harm-creep and harm-shrink. Contested ideas of harm expand to capture what are claimed to be qualitatively analogous issues (see, e.g., rights of public access and rights of dignity), or to exclude disanalogous issues (see, e.g., offensive speech and hate speech). Since these claims tend to match the moral and political views of the person making them, harm discourse tends to descend into legal-moralist kabuki theater. In religion clause law, there are now claims that certain kinds of harm to third parties said to result from religious accommodation are violations of the Establishment Clause. Here, harm talk is an effort to constitutionalize a contested set of moral views in harm’s name, accompanied by assertions of a doctrinal settlement that does not exist.
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