The Meaning of “Rights”
August 27, 2009
We hear a lot about “rights” in American discourse. Just watching Sportscenter, I heard the term “animal rights” (in reference to Michael Vick), which got me thinking. What is a right?
Civil rights. Animal rights. Equal rights. So-called “reproductive rights.” “Gay rights.” The right of privacy. We hear lately that everyone has a “right to healthcare”.
From America’s founding document: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
I did a Wikipedia search on the subject just to see what was there, and the summary was brief and, in my opinion, incomplete, but it still mentioned a couple of the concepts I will discuss below.
So, what’s a “right”, anyway? What does it mean when someone asserts their rights? Especially when they assert a right that is not currently recognized in law?
People use this term in various ways to mean various things. However, I believe that most people think they mean the same thing that the Founders of this nation meant in the Declaration of Independence quoted above (“unalienable rights”). (As a legal note, “unalienable” means that it cannot be traded, transferred, surrendered, or sold.)
A “right,” as generally asserted (whether the speaker knows it or not), is a claim of a duty on the government or some other person. “Negative rights” are rights that restrict another person or government from doing something to you. “Positive rights” are rights that require some other person or government to do something for you.
The founders of this nation, in crafting the Declaration of Independence and later the Bill of Rights, generally referred to negative rights. Thus, the freedom of speech was a restriction on the government from interfering with your ability to speak your mind (politically), except where the rights of others were concerned (such as slander, etc.). Therefore, it is impossible for a private person or company to violate your constitutional freedom of speech. You could be in a public park giving a political speech on a soapbox, and someone comes up from behind and stuffs a rag in your mouth and restrains you from removing it, and they would not be violating your constitutional freedom of speech. That person would be committing another crime, but he could not possibly violate your freedom of speech because that right is solely against the government. Thus, when a private company requires its employees not to speak about certain things, the company cannot be violating the constitutional freedom of speech (though they might be violating some other rights). If I had a dime for every time I heard someone in the media claim that a private entity was violating his/her freedom of speech, I’d have a pile of dimes to remind me of the many times people in the media irritated me.
Positive rights are foreign to the Constitution (as originally construed). Your freedom of speech did not and does not require the government to buy you a bullhorn and provide you with free billboard space so that you can air your message. It is your responsibility to exercise your rights and to find a way to do so, and the government need not lift a finger in your aid. However, the interpretation of the Constitution has gradually shifted from negative rights to positive rights in certain ways (which I think is problematic, but that’s for a different post). Your right to assistance of counsel formerly was interpreted to mean that the government couldn’t interfere with your ability to hire a lawyer in a criminal case. Today, it is interpreted to mean that a lawyer must be provided to you. You hear people argue that everyone has a “right to healthcare” (not on a constitutional basis, but on a moral basis), as though the government is required to provide you with healthcare. But a right to healthcare is not currently recognized in law (yet), so where does such a right come from if not the Constitution or duly enacted statutes?
There are two generally recognized sources of rights: God (or some transcendent order, such as “Nature”), or simply the human-created societal norms and positive law (we make them up as we go, and the law evolves to adopt what we want). According to the former, if we look back on the slave trade, we might say that the southern black slaves in early America always had a right to freedom which was theirs from God, and other people were violating that right. Those who subscribe solely to the latter, i.e. legal positivists, must maintain that during the colonial era, black people in the south did not have a right to freedom because the law did not recognize that right, and there is no other source for “rights”.
This is why theists have the upper hand, philosophically speaking, in rights-talk. Theists can say that citizens already have rights, before the government recognizes them, and that the government should recognize those rights because it is obligated to do so. The legal positivist must maintain that the citizens have no rights until the government recognizes them, and that the government is under no obligation to recognize any rights for anyone. Thus, when the legal positivist says “the government ‘should’ recognize my right to ___”, he is really merely saying “I want to do ___,” and we are under absolutely no obligation to do what he wants, simply because we don’t want to. Thus, when an atheist homosexual claims that we should recognize his right to get married, it is perfectly philosophically justifiable to respond, “Tough.” (It’s even easier to demonstrate that God has not endowed him with a right to marry whoever he wants, but that probably won’t satisfy him.) Therefore, back to healthcare, someone might try to argue that God or Nature has endowed each person with a right to have healthcare provided by their government (a tough case to make), but he cannot claim that all people currently have or should have (as opposed to “want” or “will have”) a right to healthcare if he is a legal positivist.
In law school, I had a neo-marxist legal positivist professor who claimed that when the conservatives won a court case, he did not want to hear them afterward explain with reasons why they deserved to win the case. He said that, in his worldview, it is more legitimate for them simply to say “we won.” To him, there were no true rights, no right answers, and therefore no reasons or legitimacy. When people like my professor start obtaining powerful governmental positions, look out! They feel no obligation or reason to respect any of your rights, save for their own self-interest.
There is much more to say about the American “rights” discourse, but this is just meant to get you thinking about how you use the term…