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Much of contemporary constitutional thought assumes that the only rights individuals have are either those that they are given by the legislature or those that are explicitly specified in the Constitution of the United States (or in a state constitution). Such a view of rights is based on the jurisprudential philosophy known as legal positivism, a view that has dominated academic discussions about legal rights for at least fifty years and that has begun to wane only in the last fifteen years.' In this Paper, I will try to explain how adherence to this legal positivism taints and distorts constitutional discussions in general and discussions of associational freedom in particular.

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Randy E. Barnett, Are Enumerated Constitutional Rights The Only Rights We Have? The Case of Associational Freedom, 10 Harv. J. L. & Pub. Pol'y 101 (1987).