How Are Rights Identified?

Great Debates
1

Bricker and Dewey seem miffed that I am taking them at what certainly seems to be their word – that no right that is not explicitly spelled out in the Constitution is protected, except perhaps by statute that can be repealed.

Shodan seems to hold that rights are not natural (a stange position for a conservative Christian, but that’s his privilege) but either spelled out in Constitutional guarantees or “created” by “judicial fiat.”

So what I would like to do here is to have the three of them correct any misperceptions I have as to their positions – and anyone else who tends to decry “judicial activism” is invited to clarify their own position too. And we will explore how and where rights are identified/created/whatever-verbed and what the proper limitations on that are.

My own stance is that there are unenumerated rights, which are discovered on a case-by-case basis when a statute, ordinance, or regulation encroaches on them, having been assumed without conscious thought up until that point. How they are identified is in (1) the common consent of all humanity – e.g., the right to marry subject to statute, or to travel, is inherent in being a free person, and few if any reasonable people would suggest otherwise, or (2) by the implications of enumerated rights. E.g., the right to privacy can be founded in the Fourth Amendment guarantees, with contributions from First and Fifth. The security that one has in one’s person, house, paper, and effects against unlawful searches and seizures would be obviated if any governmental instrumentality or private person may violate that security so long as they are not committing what the court deems an unlawful search or seizure. For example, a rotating team of police cannot decide to remain in your home 24/7 just against the chance you might decide to commit a crime, being very careful not to commit an unlawful search in the process. This is similar to but different from the silly “penumbra” doctrine – what it suggests is that the right guaranteed is not delimited by the language, but includes such implications as a reasonable man might draw from them. My classic example that freedom of speech includes the right to be heard by willing listeners.

2

There is a thread going on right now, that supposes there are no rights at all, no justice, unless someone stronger chooses to give them to you. Changing that slightly, Judge Scalia (and others) seem to think the only rights we have are those specifically mentioned in the Constitution and in various laws. In line with the first idea, they can all be revoked at any time by anyone who has enough power to do it. Something about all that does not sit right with me.

3

No, no, no, no, no!

I shouldn’t be responding - I have work to do. Let me quickly type this, get my stuff going, and check back later.

I am a proponent of natural rights and natural law. People are endowed by their Creator with certain inalienable rights, and, that to secure these rights among men, governments are instituted, deriving their just authority from the consent of the governed.

Your and my disagreement lies entirely with how previously unenumerated rights become recognized and protected by government, not whether or not those rights existed before the government recognized them.

And “rights created by judicial fiat” are not legitimate, and have not been created. That is an illegitimate trespass of the courts on the authority of the states and the people.

Unenumerated rights exist, but are not protected by government until recognized by the states, and the people. Courts can neither create nor recognize rights - this is not their function.

Regards,
Shodan

4

Rights are an attribute of ownership; specifically, they are the authority that accrues to ownership of property. That’s why they are natural: you are born with certain property, including your mind and body. Ownership of your mind gives you the right to give and withhold consent. Ownership of your body gives you the right to live and pursue your happiness. These are the rights with which you acquire all others.

5

IMO a right cannot be “given”. A right simply exists, and can be recognised or not.

Where do they come from? I think the most basic right that any organism has is the right of self-preservation. In nature, organisms have evolved mechanisms that give them a survival advantage. Some of these may simply be “safety in numbers”, and others may be teeth or claws. Since nature demonstrates that organisms have developed defensive strategies, it would indicate that organisms have a “right to exist”. This right may be usurped by other organisms. A mountain lion may kill a deer, or a plant may be killed by another plant. This doesn’t mean that the victim doesn’t have a right to exist, but that the killer did not recognise its right to life. (And indeed, the killer is only looking after its own right to survive.)

Of course plants and (most) animals cannot know about rights. The human animal can. We can say, “I’ll recognise your right to exist, if you recognise mine.” Therefore we have laws against murder. From there we can conceive of a right to think what we want to think. That some religions and governments disagree doesn’t invalidate the right; they simply do not recognise them.

6

Why can’t a right be given? For example, in 1400, King Henry IV gave the market at Billingsgate the right to collect tolls. Before then, it didn’t have that right.

If a right “isn’t recognized”, how can it exist? You say “I think the most basic right that any organism has is the right of self-preservation.”, but what does that mean? Obviously, an organism will try to stay alive, and will want to stay alive, but does that mean they have a “right” to live?

7

I’m from a country where there are no rights in the Constitution. I nonetheless have some legal rights and don’t find it odd to talk about some things as rights when they currently have no legal status.

I used to think that if a right were not enforceable then it didn’t really exist in any meaningful sense. I don’t any more. I used to think that in talking about things that were not currently enforceable rights as rights, people were merely expressing a desire that something that was not a right should become a right. Now I think that (sometimes) they are arguing that a right should be recognised as such by the law.

I take a modern contractarian view. A right is a rule which would command unanimity or something near it from rational individuals from behind a veil of ignorance. It can be something that constrains individuals in their dealings with others (no taking slaves) or constrains an individual him/herself (no selling yourself into slavery). It can require government to do certain things (provide fair trials) or limit their power (no taxes based on whether a district returns an opposition member to the legislature).

Some of these might be based on a view of the minimum things required for a person to be meaningfully (rather than formally) free. Some might be recognitions of the limited wisdom available to governments and majorities and the potentially dire consequences of government power in such circumstances.

Things that might well be rights can struggle for acceptance. First - since we’re not behind a veil of ignorance - interests under the status quo can dominate. Secondly, even from behind a veil of ignorance people may disagree due to differing degress of risk aversion or brute ideology (which, because I’m not a Marxist, I think may well persist even in the absence of economic interests). Thirdly, rights change with circumstances. Something that would not be a right in a society that is poorer or where information about the working of society is poorer or where the technology available for governments is inferior could be a right in a richer, more sophisticated society where governments have the capacity to do more harm or good - and inertia might make the recognition of what is a right in these new circumstances slow and painful, as people have pretty fixed ideas about what rights are.

8

Good so far. I was hoping I’d misunderstood you. Thanks for clarifying.

Agreed…

Then who does? If the Constitution says something rather broad like “due process of law” or “equal protection” or “cruel and unusual punishment” or “speedy trial” – then who decides whether in this particular case, “due process of law” has been followed, or “equal protection” has been given or denied, or whether a punishment is cruel and/or unusual, or whether the gap of time between accusation and trial is sufficiently short to constitute “speedy”?

Do you deny rights alleged to be found by judicial decisions in the meaning of the Constitution, though not explicitly defined? The right of free association, for example; the right to marry and/or to procreate; the right to travel? How about the right to be heard by a willing listener? Where do these come from? Do they exist? If so or if not, why? Is there a criterion you suggest for identifying such rights that would exclude “judicial fiat”? If I feel that the City of Podunk municipal ordinance is violating a defined constitutional right, what is my recourse? How about one I claim is to be found there?

9

Would you accept “Rights are a form of intangible property,” Lib? In another related thread, I used the analogy to the title to your property – the deed to your house, the title certificate for your car – being a physical representation of an intangible ownership. Copyright might be another parallel.

Are we more or less in accord there?

10

Johnny, I think you have a handle on it. But in pragmatic terms, which is what I think Scylla’s point is, more or less, a right may be acknowledged, guaranteed, restricted, or refused. And that is where the problems we’ve gotten into come into play.

For example, you have a right to shoot your neighbor for mowing his lawn too early. That right is refused you, i.e., it is not guaranteed or acknowledged but rather its exercise is prohibited, by the power of the legislature to protect his right to life and liberty. The same act prohibits him from shooting you for having too loud a pool party.

Those rights which are guaranteed are supposed to be applied as limitations to the power of the legislature and executive to act in their despite. In other words, the city cannot pass a law nor the police arrest you for advocating a particular point of view – it violates your right to free speech, which is guaranteed. They may regulate it, by requiring that you not advocate that POV by use of a sound truck at 3:00 AM, or by prohibiting you from holding a rally with an expected attendance of 10,000 in your back yard. But such regulations may not be content-specific – simply requiring that any expression of any POV comply with certain regulations regarding time, place, and manner of expression.

Captain Amazing, I think the problem here is in a semantic distinction between rights and privileges. This used to be a very clear distinction which has during my lifetime become confused. There are many things which you may do as of right. There are other things which you have a privilege to do, extended you as a member of a free society. Licensed monopolies, patents, copyrights, the granting of fairs in medieval times, etc., are privileges accorded by the sovereign (i.e., we the people here in America) to one of our number (or a specific group) in support of a public purpose. If invention is valuable to the body politic, then it decides that inventors shall have a right to a return from the fruits of their invention, and so they are permitted to take out a patent. If trade is beneficial to the realm, then a community is privileged to conduct a fair.

Compare this idea – I hypothetically live next door to Lib. He has built a nice home, with garage and driveway, and a sidewalk running along the street line of his property. He has the right to use his property in any way he wishes, subject to reasonable regulation by the community to protect the interests of neighbors. (I.e., he may not build a rickety tower precisely on his side of the property line which will collapse on my house in the first strong wind; that’s a restriction on his property rights in the interests of protecting mine.) He has a right to the use of his sidewalk. But by building that sidewalk, he has accorded me (and the general public) the privilege of walking along it to get from my house to the corner store. He may remove that privilege for reasons that seem good to him, e.g., Hurricane Hildegarde struck last week, and he needs to pile the debris from the storm at the street line to be picked up by a trash hauler, and that blocks the sidewalk. It’s his property; I have the privilege of using it on appropriate conditions (i.e., my privilege of walking along his sidewalk does not give me the privilege of using his bathroom or of sitting in his garden to contemplate my Muse). Does that make sense in those terms?

11

In some discussions, there is a distinction between rights which protect you against certain actions of your government, and rights which entitle you to something from your govenment. An example of the former would be the right of free speech; an example of the latter would be a right to medical care. Both are spoken of using the same term, but there is a distinction.

Some would call only the first case “rights”, call the latter “entitlements” or some such, and only recognize the first as legitimate for identification and definition by judges. The latter, in this view, are only valid for judicial enforcement if properly enacted into law by a competent legislative authority.

I think there is something to this view, although the distinction can be a bit arbirtrary. The right to a court-appointed lawyer, for example, is an entitlement to some state-provided service, but it is in support of the right to a fair trial, which is a protection against the actions of government.

12

The states and the people.

The Court interprets the Constitution, based on the plain text and the original intent. Insofar as they are deriving new rights, instead of interpreting the text so as to apply it to the already-established ones, they are violating their function.

This is a major gray area. Sometimes it is not clear whether the Court is interpreting old or deriving new. The Court ought (in my view) to generally defer to the will of the states, and the people, rather than trespass on it. Thus, if there is no general consensus that a specific right has been recognized, no evidence of original intent that the Constitution is intended to recognize a right, and nothing in the plain text that clearly recognizes it, then the Court ought to have nothing to say on the issue.

It is obviously a matter of opinion as to what constitutes a “speedy trial”. I may say ninety days is plenty speedy, someone else may think six months. It’s a judgement call either way, and the Court is well within its function to make the call. But once they start saying that there is now a right for everyone to own a Maserati at taxpayer expense because they might need it to get to their trial really really quick, they have clearly trespassed on their boundaries.

It is important - indeed, vital - that the members of a Constitutional republic consent to their government’s regulation of their lives. The further and further legal reasoning is removed from a reading of the Constitution available to the average intelligent layman, the further we are getting from informed consent, and the closer we are getting to a violation of the just authority of government.

It is possible to rationalize practically anything. But once the courts make a decision, and the average person thinks to himself “That’s absurd”, but the courts can enforce the decision willy-nilly on the voter, we have taken another step toward something other than democracy. Especially if there is nothing to justify the ruling besides “because I said so”. Even if the speaker is wearing a black robe.

Yes. Keeping in mind, however, that what I am denying is the duty of government to enforce those rights. They may exist, or not. The government ought to have nothing to say about it.

I am not sure, but it sounds sort of like you are assuming that a right isn’t recognized unless the federal government recognizes it. This is not the case.

The right to travel, for instance, may or may not exist, or it may exist but not be recognized. This makes no difference. Assume for the moment that the right to travel is not recognized by the Constitution. Now someone brings suit to try to get the federal government to recognize his right to travel in some way. Assuming that this right is not established by the Constitution - I am not arguing either way - the Court ought properly to refuse to hear the case at all. The proper venue to try to establish recognition of a right to travel is the states and the people.

Regards,
Shodan

13

I guess so, if I’m following you. The idea is that someone somewhere always claims de facto, if not de jure, ownership of all property. Ownership may be identified by who calls the shots with respect to the property in question. In most cases, it is The State, with its laws of eminent domain and asset forfeiture. Typically, especially in modern societies, The State will romanticize the notion of its ownership by calling it “public property” and saying that it is “owned by the people”. Of course, when the people try to build a house on the public property or want to sleep there, they find out who the owner really is. It is my opinion that this form of ownership is a usurpation, and is the ethical equivalent of a mugger claiming to own your wallet. It is in his possession, and he has the gun and therefore the power, but unless you gave your consent for him to take it, he is a thief. I recognize no ethical principle that entitles a man to take your property just because he calls himself magistrate, and that holds even if everybody on earth except you calls him magistrate. God or nature did not give your body or your mind to anyone but you; therefore, no one else is entitled to live your life or waive your consent.

14

I don’t believe that this is the kind of right that’s under discussion. You’re talking about granting power or authority, not rights.

15

Mmm – I disagree. If we form a partnership or a corporation, we hold its assets jointly, but that gives neither of us the right to act with regard to them without the consent of the other, except in accord with previously stated terms – i.e., if you hold 60% interest and I 40% interest, and our agreement states that issue X will be decided by majority vote of shares, then you win – but you may not decide to take partnership assets for your personal use without compensating me for my interest.

Likewise, if I place land in trust for my grandchildren and name you as trustee, while it belongs to them and any profits from it must be paid to or held for them, you have control over that land; the person wishing to buy, rent, or otherwise make use of it must apply to you, not to the kids, and abide by your decision.

If you, I, Gaudere, RTFirefly and Mangetout together buy land, and we decide to name you as trustee over it, with the income from it paid to us proportionately, the same holds – you have custody of it, though not title, and even one of the four of us wanting to make use of it or a part of it must abide by your decision – pending a majority vote revoking your trusteeship.

Public lands are held in trust for the people by the state, its officials acting in a trusteeship capacity. No single member of the body politic can make use of them to the detriment of all others, because they are jointly owned by all citizens – and their custody is in the public officials – whose trusteeship may be revoked at the polls.

New York’s laws on parks state this explicitly – if land is donated to a county, city, village or town as a park, it’s regarded as the property of the people of the state held in trust by the municipality – and the municipality may not alienate it or convert it to a non-park use without the consent of the State Legislature. I.e., the terms of the trusteeship exercised by the municipality, to hold and maintain the land as a public park, may not be superseded at the whim of the municipality, but the land must be held for park use until the representatives of the people selected for that (among many another) purpose authorize those terms to be changed. Since in all other cases the municipality is free to buy and sell land as its judgment indicates wise for the public good, the point behind the trusteeship is quite evident.

16

In the old days, a “right” was something given to a group of people by a higher authority that either let them do something or exempted them from something other people do. So you’d hear that a town had a right to hold a market, or “the rights of the nobles” or “The rights of Englishmen”. That’s why, when Jefferson wrote the Declaration, he talked about inalienable, natural rights.

But, lets take your example of Lib’s house. You’re right. Lib has the right to walk on his sidewalk, use his bathroom, and sit in his garden. You, on the other hand, can’t do it without his consent. But why is that the case?

It’s because the society recognizes it to be the case. The consensus of the society has said, “There is such as thing as ownership. That’s Lib’s house, that’s Lib’s bathroom, Lib’s garden. It’s his to use, and if you use it without his permission, you’ll be punished.” The society could say, if it wanted, “Lib doesn’t have the right to own property, because he’s not the right race/religion/class. If you want to live there, go ahead.”. (and please note I’m not saying that second belief is morally right).

In the same way, our society says, in the first amendment, “You have the right to say what you want, and worship how you want, and print what you want, and assemble how you want.” The reason you can do that is because we as a society recognize that you have a right to speak freely, worship freely, etc. If you were Chinese or Saudi, you wouldn’t have those rights…

The assumption that there are universal “natural” rights is a myth, it seems to me. Rights are relational…they exist between one human being and another, or between one human being and his society, and you only have rights when you’re in a society. If you’re alone in the wilderness, “rights” aren’t an issue…you can do whatever you want, for all practical purposes. (I guess if you wanted, you could say your “rights” are unlimited). “Rights” only become an issue when you meet somebody else, and then you have to decide what each of you will allow the other to do. So long as both of you agree: i.e. “You can fish in that pond, and I can in this pond, you can gather berries from that bush, I will from this other bush. You can’t sing at 3 in the morning, and neither can I”, there’s not a problem. However, if we disagree…if you think you should have both berry bushes, and I don’t, then who has the right to own the berry bush depends on who’s stronger. In this case, it would be physical strength, but it can just as easily be electoral strength, the strength of custom, financial strength or whatever. Any time there’s a difference in power, it’s the stronger of the two groups who makes the rules the weaker has to live by.

Keep in mind, also, that when I say the idea of universal rights is a myth, I’m not saying it should be discarded. It’s a useful myth, and I would rather live in a society that believed it than one that didn’t. I hope I’ve made my stance clearer.

17

There must be a sufficient nexus between the language and the right described.

Obviously, judges must interpret the meaning of “due process” and “speedy trial.” Decisions that directly address the speed of a trial are generally going to be unobjectionable. Decisions that mandate something two or three steps removed from the right are going to be suspect. If a court were to rule, for example, that to protect the right to a speedy trial, the accused has the right to immediately review the prosecutor’s college academic and disciplinary record (after all, the trial strategy may hinge on either challenging the prosecutor’s bias and it will take time for the defense to uncover bias without that disclosure) then the court has taken too many ad hoc leaps from the right to the remedy.

In some cases, I deny their existence. In some cases, the “rights” are actually simply prophylactic measures. Does anyone seriously contend people have a universal, Creator-given right to be informed of their right to post-arrest silence, or their right to have an attorney present during questioning? Those are legal rights, but they are in place only to ensure that the underlying right against self-incrimination is not violated.

Substantial deviations from the existing panoply of recognized legal rights should be the province of the legislature. When a court makes giant leaps, like the prosecutor’s academic record, it is no longer interpreting the existing language; it is effectively legislating – creating new law.

18

Being completely non-religious myself, I cannot fathom the concept of God given rights. Rights are those things which we as a group decide to reserve to ourselves when we compact with each other to form governments. The government may tax us, but it cannot stop us from speaking our mind. I can’t see how any rights can exist in a state of nature-- ie, in the absence of a governmental structure of some sort.

We do reference human nature in defining our rights, as we strive to define a government which allows us to live lives that are happy and fulfulling. But we also reference human nature in defining those areas where we DO want a government to intrude on-- ie, the very natural desire to murder someone who sleeps with our spouse.

19

Rick, thanks. I come very close to agreeing with the “nexus” idea – though I suspect that our views on what is a “close enough nexus” may differ == shock! gasp! :dubious: Shodan? Your thoughts.

John Mace, “God-given rights” was a useful term in a period when most Americans were either Christians, Jews, or deists, or found it useful to represent themselves as being such. But I think the term is not necessarily founded in a theology of “being endowed by their Creator” with them, but rather much more in accord with a metaphysic that presumes that non-material concepts have their place in existence. This is the “natural rights” doctrine – which as I understand it presumes that human society is founded on a fundamental sense of fairness, where I recognize your rights because I want you to recognize mine, and we band together to resist anyone attempting to deprive both of us of what we recognize as each others’ rights. They are conditions that subsist in our dignity as individuals and are accorded recognition by others exactly as we accord theirs the same recognition, in a mutual cross-social state of enlightened self-interest. Would that make more sense to you? (And, Shodan, cross-check me on how that sounds to you, as a conservative theist attempting to deal with non-theists on a level playing field.)

20

I can’t see anything in what you wrote that differs in any meaningful way from what I posted. Unless I’m missing something, it would appear that you and I are in complete agreement.