No "Right" Without a Corresponding Legal Remedy

[Bricker]

Several past discussions here have included posters claiming a “right” to do something or other… smoke pot, commit suicide, marry a person of the same sex as they are, display a particular bumper sticker on their car parked on their employer’s property, and so forth.

Claims like this irritate me, because it is unclear what the source of the right is, or the authority for the proposition that there is such a right. Often, I suspect the “right” in question arises simply from the claimant’s deeply held desire to do the act in question; if you really really want to do something, apparently you have a right to it.

Because we cannot seem to agree on what rights God granted us - indeed, we cannot agree that there is a God, much less what specifics He may have had in mind for his creatures - I believe it is less than fruitful to discuss God-given rights, natural rights, or I-really-really-want-to rights.

If you have a corresponding remedy, then you have a right. If you do not, then you don’t. In the latter case, you should shut up about how you HAVE rights, and instead talk about how you should work for legislation to SECURE whatever-it-is as a new right.

• Rick

[Polycarp]

I do have pity for poor Jacob Marbury – he should have gotten his commission!

Good point, Rick. I found my analysis of “rights” in a number of points – the droits de l’homme “natural rights” theory that seems to have underlain the Federalists and the writing of the Constitution and the Bill of Rights, and the idea of “equal justice under law” that is the motto and attempted goal of the U.S. court system as a whole.

Not all rights are enumerated. Those spelled out by the Constitution are undoubtedly protected by it. But there is this Borkian blot of unspecified rights that certainly exists but is exceedingly difficult of definition.

All we can do is to identify them on a case-by-case basis, which is what the court system is good at – applying legal principles to specific cases.

That such rights exist is fairly easy to demonstrate: you and I undoubtedly have the right to marry the woman of our choice, presuming the feeling is mutual and that no legal impediments exist. (Delimiting rights does not abrogate them – it simply places a working definition for what the abstract term means.) We have the right to move whither we choose, presuming we have the means to do so and have a dwelling place at the end of the road. There are a half dozen other unenumerated rights that have been identified as such in court cases. I presume that bodily autonomy might be included in that list – we have the right to deal with our own bodies as we choose, subject to protections against acts contemplated in insanity, etc. – I think it would be quite valid to throw out a law that requires one to submit to the removal of a limb or organ because the state in its wisdom requires it for a transplant to another deemed more deserving of it. And I could make a good solid Fourth Amendment case on that – albeit it’s looking at a “penumbra” situation.

Now, if any one person has a given right, then, ceteris paribus, each other person has the same right – even if the mode in which he chooses to exercise it is not one that meets with majority approbation. And therein lies the crux of our dispute.

In other threads, you and Shodan, for whatever reasons, have suggested (probably through loose use of language) that governments create rights – and the jurisprudence of this country from Day 1 has been dead set against that. The most governments can do is guarantee or abrogate rights.

And the remedy you speak of in the OP lies in bringing suit to enforce one’s rights under the rather broad language of the Constitution. There are modes and statutes specifically tailored to do precisely that. Granted that people may claim rights that seem to be a “stretch” even for a fairly flexible reading of those passages – they have the unquestioned right to make such a claim, and to have the courts decide if it is a valid one or not.

And therein lies the problem that plagues these threads. It’s extraordinarily difficult to distinguish a claim of a right believed to be valid by the claimer, from the assertion that such a right is guaranteed by the Constitution but not yet borne out by decisions, from the claim that such a right has been found to be valid by the court system. Perhaps a little more precision in language might be appropriate – but I’d hope that we can agree on some basic principles about the construction of rights-based jurisprudence.

Your comments?

[Mtgman]

@Bricker

If you have a corresponding remedy, then you have a right. If you do not, then you don’t. In the latter case, you should shut up about how you HAVE rights, and instead talk about how you should work for legislation to SECURE whatever-it-is as a new right.

This makes no sense. Could you explain further? How do remedies drive rights? I thought remedies were created to allow for people whose rights were infringed to be made whole. If someone came up with a new way of infringing upon some old right then a remedy would be tailored for the situation. In other words, rights preceed remedies.

Could you expound on your view that there are no rights unless remedies have been crafted by the legislatures? I have a little card on my desk which notes that in Texas a “mother is entitled to breastfeed her baby in any location in which the mother is authorized to be, under the provisions of Chapter 165, Texas Health and Safety Code.” Nothing in Texas Health & Safety Code Chapter 165(PDF) establishes a remedy for anyone infringing on this right of the nursing mother. No mention of harassing breastfeeding mothers being a misdemeanor, or leading to civil fines or penalties. There is no enumerated remedy I can find, does this mean Chapter 165 does not confer a right?

Enjoy,
Steven

[My_Darn_Snake_Legs]

Do you mean that there are lots of rights floating around out there and that the only ones that we have any reason to formulate into Rights are the ones that are countervened in some way?

If this is your intent, then I guess I don’t agree with you.
If this isn’t your intent, then you’re going to have to restate it since I agree with Steven. It don’t make no sense.

–==Mike==–

[BrainGlutton]

In one of the Federalist Papers, I forget which one, Publius argued against adding a Bill of Rights to the Constitution, on the grounds that a complete enumeration of our ethical rights would be impossible, and a constitutional enumeration of our legal rights would imply the state has legitimate authority to abrogate any rights not so enumerated. I presume the Ninth and Tenth Amendments were intended as ways to get around this problem – but neither one has ever been the basis for any important decision of constitutional law.

Was Publius right, I wonder?

From the Wikipedia (http://en.wikipedia.org/wiki/Rights):

At its most fundamental, a right is a claim, on other persons, that is acknowledged and reciprocated among the principals associated with that claim. The most basic of rights is a principle of interaction between people which amounts to the simplest version of the Golden Rule (do unto others as you would have them do unto you). In other words, it is a mutually beneficial agreement between two or more people; each of them agrees to behave in a certain way towards the others so that they will behave in the same way towards him/her.

Other than that, an entity (person or group) can make any sort of claim on other persons, but those claims remain simple assertions until the other persons acknowledge that claim as binding upon them. At that point, the claim becomes a privilege (a one-sided acknowledged claim). If all parties (including the originating claimant) also agree to reciprocate acknowledgement of such a claim, it becomes applicable to all, that is, applicable to everyone in the same sense and at the same time, and thus a right.

On that basis, additional structures [of social interaction] can be erected.

Legal rights

In jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society. Compare with privilege.

Generally speaking a right corresponds with a complementary obligation that others have on the same object or realm; for instance if someone has a right on a thing, simultaneously another party or parties have an obligation to do something (or to abstain from doing something) in order to respect that right or to give concrete execution to that right. Property rights provide a good example: society recognizes that individuals have title to particular property as defined by the transaction by which they acquired the property granting the individual free use and possession of the property. In many cases, especially regarding ideological and similar rights, the obligation depends on the legal system in its entirety, or on the state, or on the generical universality of other subjects submitted to the law.

The right can therefore be a faculty of doing something, of omitting or refusing to do something or of claiming something. Some interpretations express a typical form of right in the faculty of using something, and this is more often related to the right of property. The faculty (in all the above mentioned senses) can be originated by a (generical or specific) law, or by a private contract (which is sometimes exactly defined as a specific law between or among volunteer parties).

Other interpretations consider the right as a sort of freedom of something or as the object of justice. One of the definitions of justice is in fact the obligation that the legal system has toward the individual or toward the collectivity to grant respect or execution to his/her/its right, ordinarily with no need of explicit claim.

Rights can be divided into individual rights, that are held by citizens as individuals (or corporations) recognised by the legal system, and collective rights, held by an ensemble of citizens or a subgroup of citizens who have a certain characteristic in common. In some cases there can be an amount of tension between individual and collective rights.

With reference to the object of the right, a common general distinction is among:

intellectual rights, which include:
civil rights
religious rights
rights of opinion
real rights (from the Latin word “res”, thing), which include:
property rights
rights of use
liberties
See also: human rights, positive rights, negative rights, exclusive rights.

Particular systems can (or could in the past) include special rights like:

fief rights, which included:
economical rights (like the right to collect taxes)
performance rights (like the jus primae noctis or corvee)

http://en.wikipedia.org/wiki/Human_rights:

Human rights (natural rights) are rights which some hold to be “inalienable” and belonging to all humans, according to natural law. Such rights are believed, by proponents, to be necessary for freedom and the maintenance of a “reasonable” quality of life.

If a right is inalienable, that means it cannot be bestowed, granted, limited, bartered away, or sold away (e.g., one cannot sell oneself into slavery). The issue of which rights are inalienable and which are not (or whether any rights are inalienable rather than granted or bestowed) is an ancient and ongoing controversy.

<snip>

Origins of rights
Human rights can be divided into two categories: positive and negative human rights. Every negative human right can be expressed as a positive human right, but not vice versa. For example, the right of a newborn to a caring parent can only be expressed positively.

Positive human rights follow mainly from the Rousseauian Continental legal tradition, and are things to which every person is entitled and for which every state is obligated. Examples of such rights (not all are universally agreed upon) include: the rights to education, to a livelihood, and legal equality. Positive rights have been codified in the Universal Declaration of Human Rights and in many 20th century constitutions.

Negative human rights follow mainly from the Anglo-American legal tradition, and are rights which denote actions that a government should not take. These are codified in the United States Bill of Rights and the English Bill of Rights and the Canadian Charter of Rights and Freedoms include freedoms of speech, religion and assembly.

There are a number of theories of where rights come from. The theory espoused by the US Declaration of Independence and ingrained in Anglo-American legal thought is that rights arise from natural law. This theory is considered antiquated in moral philosophy.

Religious societies tend to try to justify human rights through religious arguments. For example, liberal movements within Islam have tried to use the story of Adam in the Qur’an to support human rights in a Muslim context.

There are a number of controversies regarding human rights. One is what rights are included as fundamental human rights, or even if there is such a thing. Another controversy is how best to enforce human rights and in particular the relationship between human rights and national sovereignty. One point of view is that human rights are universal and therefore it is proper for any national to attempt to enforce human rights through international courts or domestic law. The opposing view is that having human rights override national sovereignty is a form of imperialism in which powerful countries dictate which rights they consider most important against less powerful countries. Canada attempts to resolve this tension by allowing legislative primacy on a temporary and renewable basis notwithstanding that the law infringes the Canadian Charter of Rights and Freedoms.

[Shodan]

@Polycarp

Not all rights are enumerated. Those spelled out by the Constitution are undoubtedly protected by it. But there is this Borkian blot of unspecified rights that certainly exists but is exceedingly difficult of definition.

<snip>

In other threads, you and Shodan, for whatever reasons, have suggested (probably through loose use of language) that governments create rights – and the jurisprudence of this country from Day 1 has been dead set against that. The most governments can do is guarantee or abrogate rights.

I guess I understand the distinction, but I don’t see how it affects the issues.

Whether we speak of “creating a new right” or recognizing one that has existed since the dawn of time does not affect who is responsible for doing it.

Maybe there is a unenumerated right to X. Or maybe, there is no right to X, but it can be created with the appropriate measures. In either case, it needs to be decided up front who can decide that the right to X exists or has been created.

What you and I disagree on is who can make that decision - whether the courts, or the legislatures or the people, and how, whether by statute, referendum, or Constitutional amendment only, or also by Court decision.

@Polycarp

And the remedy you speak of in the OP lies in bringing suit to enforce one’s rights under the rather broad language of the Constitution. There are modes and statutes specifically tailored to do precisely that. Granted that people may claim rights that seem to be a “stretch” even for a fairly flexible reading of those passages – they have the unquestioned right to make such a claim, and to have the courts decide if it is a valid one or not.

And therein lies the problem that plagues these threads.

I think the problem is disagreement that the only or most appropriate remedy is to bring suit before the Court. I would argue that this is only appropriate in attempting to remedy the denial of an already existing right, and not in trying to have the courts establish a new one (or recognize an unenumerated one).

I guess I would agree that citizens have the right to try to get the courts to establish/recognize rights. But I don’t think they ought to prevail when they do so. They should only prevail by getting a majority of other citizens, and/or their representatives, to agree that this is a right deserving of protection. You can have the Constitution amended to say “The right to X shall not be abridged”, or pass a law protecting my right to X. But you cannot (IMO) get the courts to discover or establish a previously unenumerated right.

So I see “the problem that plagues these threads” as two-fold;
[ul][li]We don’t agree on where the duty lies to recognize a previously unenumerated right. You say the courts can do it, I say they can’t (or shouldn’t).[/li][li]You think a right not previously recognized as a natural but unenumerated right can be established even if the majority does not see the need, and even if there is no clear reference to it in the Constitution, nor any indication that it was part of the original intent of the establishing Constitutional clause. You mentioned yourself the difficulty in seeing what our complete set of rights are in the amorphous Borkean blob of natural law. Who has the duty to resolve those difficulties? AFAICT, you say it ought to be primarily the justices of the Supreme Court. I say it ought to be a majority of voting citizens and/or their elected representatives.[/ul]Your pardon if I have mistated your position, but this is what you sound like to me. [/li]
Bricker - when you say “no right without a remedy”, are you talking solely about rights already recognized, for which there is some remedy under law? If you mean “you only have rights if the courts have found that you do and what they are”, then I understand you, but I don’t think it affects the debate.

Do you mean the distinction between “I have a right to marry my boyfriend” vs. “I should have the right to marry my boyfriend” vs. "“The courts should recognize my right to marry my boyfriend” vs. “The courts should create my right to marry my boyfriend”?

Regards,
Shodan

[Homebrew]

If you have a corresponding remedy, then you have a right. If you do not, then you don’t.

To borrow the phrase from Lib, “scribbles on paper”.

[minty_green]

@Mtgman

I have a little card on my desk which notes that in Texas a “mother is entitled to breastfeed her baby in any location in which the mother is authorized to be, under the provisions of Chapter 165, Texas Health and Safety Code.” Nothing in Texas Health & Safety Code Chapter 165(PDF) establishes a remedy for anyone infringing on this right of the nursing mother. No mention of harassing breastfeeding mothers being a misdemeanor, or leading to civil fines or penalties. There is no enumerated remedy I can find, does this mean Chapter 165 does not confer a right?

Wouldn’t be the first time the Legislature passed a law that was all rhetoric and no remedy. Nevertheless, that section reads to me like it provides an affirmative defense against criminal charges, presumably public nudity or indecency laws. In that sense, at least, the statute does provide a “remedy” for the right conferred. Note also that the statute only recognizes a right to breastfeed, not to be free from disapproving comments and such. Full-blown “harrassment,” however, is likely to qualify as a crime (perhaps assault, terroristic threat, or disorderly conduct, depending upon the specific acts and/or statements involved) whether or not it is motivated by anti-breastfeeding animus.

[Mtgman]

@minty green

Wouldn’t be the first time the Legislature passed a law that was all rhetoric and no remedy. Nevertheless, that section reads to me like it provides an affirmative defense against criminal charges, presumably public nudity or indecency laws. In that sense, at least, the statute does provide a “remedy” for the right conferred. Note also that the statute only recognizes a right to breastfeed, not to be free from disapproving comments and such. Full-blown “harrassment,” however, is likely to qualify as a crime (perhaps assault, terroristic threat, or disorderly conduct, depending upon the specific acts and/or statements involved) whether or not it is motivated by anti-breastfeeding animus.

I’m not sure I’m clear on how this section provides a remedy against private parties infringing on the breastfeeding mother’s right. Wouldn’t be the first time I did not manage to properly interpret legalese however. It would cleary establish an affirmative defense against any misguided state/county attempts to bring charges against the nursing mother, but aside from the general prohibitions on people who operate places of public accommodation(which is a narrower scope of venues than “anywhere the mother is authorized to be”) only being able to restrict access on legal grounds, where is the remedy if the infringement is due to the act of a private individual?

This is really more for my own curiosity than the lynchpin of my arguement. My arguement, rights necessarially preceed construction of remedies and are not invalidated if no such remedy has yet been constructed, still stands, even if my particular example is deficient. The right to vote was extended to former slaves after the Civil War. This right was frequently infringed via Jim Crow laws of various varieties. No remedies existed for many years to make whole those victims of Jim Crow, this did not mean their right to vote did not exist during that time.

Enjoy,
Steven

[minty_green]

@Mtgman

I’m not sure I’m clear on how this section provides a remedy against private parties infringing on the breastfeeding mother’s right.

It doesn’t. Of course, the First Amendment doesn’t provide a remedy against private parties infringing on your right to free speech, either. Generally speaking, at least in the U.S., “rights” are something we have against the government, not each other.

[Mtgman]

@minty green

It doesn’t. Of course, the First Amendment doesn’t provide a remedy against private parties infringing on your right to free speech, either. Generally speaking, at least in the U.S., “rights” are something we have against the government, not each other.

So what is the legal muscle behind decisions forcing private clubs and such to accept African-American members, or female members? The statute in question(Texas H&S Chpt 165) seems to create a protected class called “breastfeeding mothers”. Would these protections not extend, as have protections for minorities and genders, into the private sphere?

Enjoy,
Steven

[minty_green]

So what is the legal muscle behind decisions forcing private clubs and such to accept African-American members, or female members?

The federal Civil Rights Act, which was enacted by Congress under authority of the 14th Amendment and the interstate commerce clause (and upheld by the Supreme Court under the commerce clause, without passing judgment on Congress’ authority to legislate private activity under the 14th Amendment).

The Texas Legislature could (at least potentially) have granted breastfeeding mothers the right to breastfeed without that right being infringed by private persons, but it would have to have said so. And, as Bricker points out in the OP, it would have to create a remedy for private infringement or the guaranteed “right” would be substantively meaningless.

[Dewey_Cheatem_Undhow]

Rather than type my fingers numb, I incorporate by reference my posts in the following thread:

Rights? What’s a Right?

It will come as little surprise to regular readers of this forum that I think the title of this thread precisely captures the reality of the situation (indeed, Bricker is practically quoting an old con law professor I had in law school). A right that cannot be exercised is no right at all. It cannot be said to exist in any meaningful way.

[Bricker]

@Polycarp

And therein lies the problem that plagues these threads. It’s extraordinarily difficult to distinguish a claim of a right believed to be valid by the claimer, from the assertion that such a right is guaranteed by the Constitution but not yet borne out by decisions, from the claim that such a right has been found to be valid by the court system. Perhaps a little more precision in language might be appropriate – but I’d hope that we can agree on some basic principles about the construction of rights-based jurisprudence.

Your comments?

This is a cogent analysis, I think. Clarity of language would go a long way towards solving the initial bickering and zeroing in on the precise claim being made.

“I have a right to …” is simply too vague a statement, and each reader views such a statement through the tint of his own glasses.

I would suggest, however, that because the term “right” carries - at least to my ear - a confident and definitive aura, it’s simply not useful to characterize things like “the inherent rights of man” as rights in any discussion other than the most hopelessly theoretical. The advantage of this view is that while you and I may differ on “the inherent rights of man” - do they include food, shelter, and HBO, or just basic cable? - the existence of rights which may be enforced under the law is subject to far fewer ambiguities.

[minty_green]

@Dewey Cheatem Undhow

A right that cannot be exercised is no right at all. It cannot be said to exist in any meaningful way.

I’d limit that to whether it exists in any meaningful way legally. The rhetoric of “rights” is pretty important when it comes to shaping public opinion and policy.

[Polycarp]

@Mtgman

So what is the legal muscle behind decisions forcing private clubs and such to accept African-American members, or female members? The statute in question(Texas H&S Chpt 165) seems to create a protected class called “breastfeeding mothers”. Would these protections not extend, as have protections for minorities and genders, into the private sphere?

Enjoy,
Steven

Nope, it doesn’t construct a protected class, it merely establishes that Texas recognizes a “right to publicly breastfeed.” You and I and Sister Mary Immaculata have the same right – we may not have equipment or circumstances to exercise it, but it does exist as an abstract right.

[John_Mace]

Seems like this thread boils down to a request for posters to say “there should be a right to X” instead of “there is a right to X” when referring to rights not explicitly guaranteed by law.

Good luck…

We have a right to say it anyway we want!

Just kidding, of course. It drives me crazy, too.

[Polycarp]

@Dewey Cheatem Undhow

Rather than type my fingers numb, I incorporate by reference my posts in the following thread:

Rights? What’s a Right?

It will come as little surprise to regular readers of this forum that I think the title of this thread precisely captures the reality of the situation (indeed, Bricker is practically quoting an old con law professor I had in law school). A right that cannot be exercised is no right at all. It cannot be said to exist in any meaningful way.

I see your point, in a pragmatic context. However, in the assertion of previously unrecognized supposed rights, the issue becomes important. If I understand Shodan correctly, for a court to rule in favor of such a claim is in his eyes “creating a right” – but in my eyes, it’s giving proper legal recognition to an existing right which had not yet been given such recognition, rectifying an error of the past. The ideal example for this is slavery – I doubt that many people here would hold that any person prior to 1865 had the natural right to the ownership of another human being, whether or not the law permitted it. The 13th Amendment corrected that situation by recognizing the right of all persons not to be owned by someone else. It did not create that right; it validated it, established it as a legal precept if you prefer.

Hence for, e.g., Homebrew to allege that there exists a right to marry another unmarried unrelated willing adult without reference to the body gender of the individuals involved, is not in his eyes (and mine) an attempt to “create a right to gay marriage” but to obtain the recognition of the law for an existing right that has been up until recently denied – on the principle that equal protection calls for any two people (subject to the appropriate disclaimers) to enter into a marriage contract. (And I am not frigging interested in arguments based on claims about the right to marry an 18-person commune, your sister, a five-year-old, your pet golden retriever, your car, or your toaster. They are red herrings to the issue at hand.)

Can you see the distinction? (I hope, Shodan, that this answers a question that has caused some bad blood between us lately.) If a right in fact does exist and has been denied someone, that is a quite different kettle of fish from the creation of a right where none was before.

[Mtgman]

John: I’d liken this view on rights to the reality of constitutional philosophies. You can scream and yell about strict constructionalism all you want, but if the judges on the bench aren’t strict constructionalists then you’re SOL. Just like someone who believes they have a “right” but those lovely legislatures, even if they have constructed such a “right” in the legal statutes, haven’t constructed a way for you to exercise it. Both are just SOL.

Enjoy,
Steven

[Bricker]

@Polycarp

Can you see the distinction? (I hope, Shodan, that this answers a question that has caused some bad blood between us lately.) If a right in fact does exist and has been denied someone, that is a quite different kettle of fish from the creation of a right where none was before.

If someone claims the existence of a “right” that is not recognized at law, how might another person refute that argument?

I would simplfy the issue: before the 13th Amendment came along, people had the right to own other people. Subsequent to it, they did not.

• Rick