Rights? What's a Right?

Great Debates
61

As a practical matter? No.

As a fundmental principle matter? Yes.

I think I have a right to free speech sitting in Tiananmen Square but I would hardly be surprised to get tossed in jail for exercising it in a way that made the Chinese government unhappy.

Take another example. I think women should enjoy the same rights and protections under the law as men do. Absolutely and without question (the law shouldn’t distinguish). Obviously there are places in the world where this is not the case. I think they are patently wrong but I understand that it would be foolish in the extreme to have my girlfriend flaunt their laws in their own country (however wrong they may be) and not expect undesirable consequences.

62

You may not have explicitly said anything to the contrary but you are defending a strict constructionalist viewpoint which (correct me if I’m wrong) equates to: “If the US Constitution doesn’t explicitly grant you a right or protection you cannot infer that you possess such a right or protection.”

By that thinking I by all means should have the right to own a missile launcher as the Constitution explicitly grants me the right to keep and bear arms. I should be able to slander people at my discretion and shout fire in crowded theaters on a whim. The Constitution grants me an explicit right to free speech and that right is not mitigated in any way.

You say you agree to interpretations of the Constitution as being necessary and acceptable (or at least that is what I gather from your recent post in reply to me). Are you saying those interpretations only extend in one direction…that of restricting rights granted? If you can accept that as being reasonable why can’t you accept that it can (and should) go the other way and grant rights that can be inferred from what is written?

63

Let me further clarify the issue: if the things I described above were to happen, would a law abridging one’s right to speak be unconstitutional? Why or why not?

64

Your post is a parody of strict constructionist ideals. I defy you to find a strict constructionist who claims the text does not need interpretation. It is no mistake that Justice Scalia titled his book detailing his views on the subject “A Matter of Interpretation.”

When the Supreme Court starts creating rights out of thin air, it is not engaged in interpretation. It is engaged in authorship, which is a very different thing. That it does so under the pretext of interpreting “due process” does not change that fact.

I have absolutely no problem with the court describing the scope and applicability of the textual provisions of the constitution. The court does so out of necessity. The equal protection clause, for example, would literally invalidate every law ever written if it was taken absolutely literally. Strict constructionism, contra to some characterizations, is not the same thing as biblical fundamentalism.

65

If the US gov’t decides what’s a right, and the US gov’t gives us the right to petition the govt, as well as to vote then we have the right to request whatever right we want. In any case what NEW rights have been added to the constitution since the BoR anyway? I can’t think of any cases where a new right was created (not just expanded, eg 15th amendment) through popular demand for it.

66

Indeed. Couldn’t agree more. We democratically (well, semi-democratically, I guess, considering who got to vote) gave away buttloads of power to officials with no direct accountability to the voters. You’re simply trying to take it back because you’d rather it hadn’t been given away in the first place. Get cracking on that constitutional amendment, I guess.

Not really, given the extremely limited government that prevailed throughout the 19th century, plus the U.S. Army camped out on the steps of the Southern legislatures that were most enthusiastic about denying due process and equal protection. If substantive due process was really all that wacko-bizarro-antitextual claptrap you claim it to be, you’d think the courts would have had a hard time swallowing it when the argument was first presented to them. Instead, they pretty much shrugged their shoulders and said “Of course it’s ends as well as means.”

Sure I have–I’ve endorsed the Supreme Court’s own forumaltion, that SDP protects rights and activities that are “fundamenal to our concept of ordered liberty.”

You’re very serious about ends, but you just don’t care enough to ever bother to rethink your favored means when the ends are truly evil? Pardon me if I don’t join you in your outcome-indifferent philosophy.

That strikes me as a pretty big abdication of one’s moral responsibility as a human being. Surely, you would concede that there are circumstances so extreme where “any means necessary”–in the original sense of the phrase, not your rather bizarre application of it to the basic principle of judicial review–become not just acceptable, but a moral imperative? C’mon, think Nazis and slavery and nasty stuff like that.

Entirely correct.

Entirely incorrect. Indeed, I’ve specifically noted that Justice Scalia is absolutely correct in his analysis that the Lawrence majority basically chucked standard due process analysis straight out the window. I’d have been much happier if they explicity analyzed the under the normal SDP tests, and I’m not at all sure why they did not. The consequence of that failure–and that ridiculously vague analysis–is likely to lead to an explosion of pointless litigation.

But to get back to your immediately preceding point, it ought to be pretty darned obvious that recognizing the potentially unlimited power of government is hardly an endorsement of any and every specific exercise of that power. There is, after all, a vast difference between can and should.

Welcome to the real world, amigo. It’s a scary place, where people you’ve never even met wield vast power, both actual and potential, over every detail of your life. You trust in the goodwill of Justice Scalia; I trust in the goodwill of Justice Kennedy. Life goes on, paying no heed to legal philosophy.

67

The notion that the founders thought they were giving away “buttloads of power” to the judiciary is silly. Madison described them as being the weakest branch of government, having neither the power over the purse nor the sword. **

In over one hundred years of history, do you really think the first time someone suggested the court do something just because it could came during the Lochner era? I suspect that the founders and the first courts, or anyone within a couple of generations of them, would have considnerd such thing to indeed be wacko-bizarro-antitextual claptrap. **

Yeah, and that’s a really meaningful limitation. :rolleyes:

That sort of thing is better suited to poetry than to judicial reasoning. **

Refusal to take up any means to accomplish a particular end is not indifference. There are other means at my disposal – lobbying, civil disobedience, protest, etc, etc, etc. **

Even the abolitionists didn’t suggest slavery was unconstitutional. They – rightly – fought their battles in the political arena. **

Which doesn’t make it right.

And if you’re serious, I wonder why you bother to participate in these discussions. If legal philosophy is unimportant, why are you here?

68

First of all, Dewey is clearly not lawful evil. Lawful evil entails a dedication to law purely out of self-interest, and actively seeking to bend the law to one’s own benefit. I would characterize Dewey as borderline between lawful good and lawful neutral - he believes order and law make for a better society (lawful good), but his dedication to the structure of the law is highly resistant to evidence that said structure is leading to bad outcomes (lawful neutral). To be completely lawful neutral one’s devotion to the law should be entirely indifferent as to the degree of justice to be found in the law, something I don’t think can be attributed to our friend.

On the other hand, minty just as clearly is neutral good, not chaotic good.

But enough of this silliness.

Consequentialist that I am, I don’t believe there are any innate rights. However, given the obvious fact that we are far better off living in organized societies operating under the rule of law, I do believe that we are morally required to establish and recognize numerous legal rights (both positive and negative, though by and large the negative ones are more important). First and foremost of these rights is what I have termed in other threads “the right to do whatever you damn well please so long as no one gets hurt.” Or, to put it another way, if the state is to be justified in infringing upon a person’s liberty, it must needs be able to demonstrate a compelling interest in doing so. Sadly, the framers of the US Constitution did not consult with me before composing their document, or this would not only be a moral truth, but a fact of American law. Of course, given that I do not live under the jurisdiction of US law, my desires on this matter are purely for the benefit of my fellow humans in that fair land, and are not self-interested in the least. :smiley:

That said, I do also think that the founding documents of the US indicate a great enthusiasm for Liberty writ large. Because of this, I believe it is entirely appropriate for the courts to interpret those documents liberally when examining what liberties are protected, and hence I have no problems with the basis for the Lawrence decision.

69

I never said it was unimportant. It’s quite important to the should I described above, keeping the system functioning justly and efficiently. It’s fairly well irrelevant to the can, since human philosophy is no more than a social restraint on the actual power that the government has to screw up each and every one of our lives.
“Chaotic good?” For some reason, I kinda like that. :slight_smile:

70

And if the Chinese government does not “grant” a right to free speech, does that mean that the Chinese have no basis for demanding nor requesting free speech. Likewise, if the Chinese government “grants” no right to travel, then the Chinese must stay in China, since they have no right to move and no right to change the government.

THUS, if the above is true, then the USA has NO CAUSE, WHATSOEVER, to EVER protest any “civil rights violation” ever undertaken by the Chinese government against their own people. Likewise, the Nuremberg trials should never have taken place. The USA should never have protested the treatment of any citizen of the USSR by the Soviet government. There is no basis, at all, for any opposition of the Khmer Rouge, since they were the government of their era. If the contention that “rights” are “created” by a government is true, then it is impossible for a government to commit any crime against any of its citizens. Likewise, it is outright WRONG for any citizen of a country to try to obtain civil rights in a country that does not “grant” them.

71

If there is no such thing as inherent rights, the steed need justify no infringement at all. If there is no such thing as inherent rights, then the state is correct in doing whatever it damned well pleases to its playthings–I mean subjects.

Upon what basis is any justification necessary if no such thing as inherent rights exist?

72

There are two types of rights being talked about here, one drawn from legal theory, the other from moral theory.

Rights, in a legal theory, are granted by government. They exist because the government has seen fit, for whatever reason, to grant them to whomever it grants them to.

Rights, in a moral theory, exist because the moral theory from which they flow demands them. They exist regardless of whether any government acknowledges them. Their origins depend on the origin of the underlying moral theory; they could flow from God, or from “first principles”, or “the social contract”, or whatever other basis your favorite moral theory uses to construct its moral code.

We use the moral theory of right when discussing what rights a government ought to guarantee; that is, when we evaluate the morality of a government. Dewey’s presentation of strict constructionalism seems to argue that judges ought not engage in a moral analysis of the legal rights guaranteed by the government when making rulings – that judges ought to be ignorant of this moral dimension of rights, or at least give it a lesser weight. If I understand Dewey, the only people who are generally entitled to exercise moral discretion in government are voters.

I contend that we select judges to be more than mechanical interpreters of the law; we select them to be moral agents. To expect them to act without regard to the moral implications of their acts is unconscionable to me.

73

Nonsense. Just because there are no inherent rights doesn’t mean that might makes right or that can equals should. My own thoughts on normative ethics tend to be a little bit inconclusive, but I lean heavily towards consequentialism - not classical utilitarianism per se, but something not all that far from it. (My chief disagreement with Mill et al, if you must know, is that I think ‘happiness’ in the Millian sense likely to be a far more complex notion than he allows for, with various aspects of it not entirely commensurable with one another, thus complicating the calculus. But I digress.) From this background, it follows that we are morally obliged to organize our society in such a fashion that the lives of the citizens are as good as they can be, and this entails strong legal protection for personal liberties. In a way, this is similar to Rawls’ view, though the foundational justificatory structure differs a fair bit.

Put another way - morality demands that we place legal strictures upon the government so that it cannot make people’s lives miserable without compelling cause.

74

I think our main discrepancy is that you treat rights like some mystical entity inherent to all humans, whereas I treat them more as a legal term. It seems to me that your way is too subjective. For example, you might say we have the natural right to liberty. Someone in China (especially in the government) might disagree. Neither of you is correct since there’s no standard to go by.

To address your points, if a government doesn’t give people a means of changing the government, they have the option (not through any “right”, just through free-will) to try and do away with that government, or to force it to change, or to disobey it.

National governments are not subject to eachothers standards of rights except by power. Thus, any nation, if it wants to, can rightfully protest what it percieves as a violation of human rights. However, that’s only meaningful if it has the muscle (economic, military, or otherwise) to back it up. The international arena is essentially a state of nature, in which every nation has the right to do whatever it wants unless it violates an agreement.

75

Poly

In my philosophy of ethics (i.e., libertarianism), rights are authority that accrues to ownership of property — including property that is intrinsic (such as your body and your mind) as well as property that is acquired peacefully and honestly. All coercion may be defined as the usurpation of rights and vice-versa. Within this worldview, all rights manifest as one epiphenominal entity: the right to be free from coercion (initial force or fraud). And within this worldview, freedom is in fact defined as the absence of coercion.

Others — e.g., Dewey — are free to think I am a monster, a weirdo, or a mental inhabitant of some utopian fantasy for holding these views, but I hold them nonetheless. Both the law and rights are sibling subset disciplines of ethics. It is not necessary that rights be defined in some legal context (all such contexts are entirely arbitrary), and it is therefore a violation of Ockham’s Razor to do so. Rights need only be defined ethically.

What most people refer to as “rights”, I refer to as “permissions”. Governments, for example, give you permission to do this or deny you permission to do that, appealing either to scribbles on paper or some other arbitrary authority (such as military might). Such permissions may be granted by a thief who is stronger than you and holds your property. The sort of rights that I refer to are quite different from permissions. A thief, for example, has no rights — his ownership is illegitimate and therefore ethically worthless.

76

Lib.: As we’ve discussed, I don’t necessarily buy into your “propertarian” view of abstract principles. But we do agree in seeing freedom as the absence of coercion, including by the (IMHO unjust) application of law.

I see rights as naturally inherent in, and comprising, this concept of freedom. I believe it was Sam Stone who pointed out the Hobbesian sense in which one’s “natural rights” include the abiluity to coerce – to take by force or fraud from another, and that (as the Preamble suggests) the proper function of government is to make one man’s rights secure from another’s ability to coerce.

Accordingly, governments cannot “grant” rights – all they can do is guarantee and affirm them, or abridge and/or deny them.

It’s in this context that the debate Dewey and I have been conducting begins to make sense. In his view, the only rights with which you are endowed are the ones guaranteed in the explicit wording of the Constitution, along with such privileges (inaccurately termed rights) as the Congress and the state constitutions and legislatures may be graciously pleased to extend to you – for the time being, at least.

I differ with this strenouosly. And, despite his oft-repeated suggestion that there are no limits to my position, I maintain that there are certain rights which are universally acknowledged as such, provided that the question be asked in the first place. And that it is these which the Ninth and Fourteenth Amendments protect. In the Lawrence case, discussions of which led to this thread, for example, one’s privilege to decide whether to date, if so whom to date, how intimate a relationship to form with that person, and whether or not to have sexual relations with that person, are not subject to abridgement by the state (with carefully delineated exceptions relating to public conduct, protection of the young, and so on). Placed in these abstract terms, with no suggestion that a male-male relationship is the proximate cause of the question, I believe that virtually every American would agree with the premise. The right to paint one’s penis green and exhibit it to schoolgirls, on the other hand, would not be recognized by much of anyoine as an inherent right of Americans. It is in this sense that I believe there are quite reasonable limits on such definitions of rights, a point with which Dewey apparently differs strongly.

77

Polycarp, actually, as I understand strict Libertarian philosophy painting your penis green and exhibiting it to any schoolgirls who wandered within range would be a protected activity as long as you did not use force or fraud in the course of the painting or exhibition.

78

Nah, it would depend on who owned the sidewalk.

79

The convenient thing about your position, Poly, is that it is completely and utterly unfalsifiable. You claim “universal acknowledgment” of certain principles without the need to prove that such values are held universally – or even by a bare majority. Your blithe assertion of universality does not make it so.

At least my position tangibly demonstrates the universality of a given right – a particular right must be widely held to garner two-thirds votes in Congress and three-fourths ratification by the states.**

Apparently not, given that many states have (er…had) sodomy laws which did not suggest a “male-male relationship,” and many states have laws which regulate sexual conduct in ways unrelated to public conduct and child protection (adultery laws, etc). I think your notion that “virtually every American” would agree with those abstract terms is just wishful thinking on your part.

80

DEWEY:

“…I think your notion that “virtually every American” would agree with those abstract terms is just wishful thinking on your part…”

Don’t you think Poly was referring to how “virtually every American” would presently (ie, now and in the last decade or so) view the issue?

The fact that laws (generally unenforced) languish in the books year after year does not so much demonstrate popular support as the fact that no legislator wants to become known as “that guy who’s for anal intercourse and adultery”–because it’s a delicate and rather distasteful subject-area, NOT because the electorate believes it’s an area deserving policing by The State.

As an aside…while we’re on the subject of “distasteful”…Polycarp posts on the SDMB a great deal, and I have never found his posts less than well-reasoned, evidentiarily defensible (when there is substantial agreement on what constitutes relevant evidence), and respectful in tone. To diss him as making conveniently blithe and unfalsifiable assertions is (a) your perfect right to do; and (b) not to your credit.

Poly doesn’t need my defense. But I needed to make it.