Rights Without Reason
Posts in this series.
On The Evolution Of Agency by Michael and related
Free Will, Agency, And Evolution
Goal Directed Agency And Intentional Agency
Great Apes AS Rational Agents
Socially Normative Agency
Socially Normative Agency And Rights
Coming To Grips With Free Will
On Chapter 9 of The Origins OF Totalitarianism by Hannah Arendt
The Mass Migrations Caused By WWI
Denaturalization and Asylum in Interwar Eruope
Stateless In Palestine
Citizenship
On How Rights Went Wrong by jamal Greene
Background For A New Book
How Courts Came To Control Our Rights
Two Views Of Protection Of Rights
Strict Scrutiny And Rational Basis Scrutiny
The Injustice Of Our Rights Regime
Introduction
Social media is full of right-wingers bleating about the infringement of their rights. Sometimes it’s gun nuts blathering about their rights to own every gun. Sometimes it’s some dude whining about being slammed for exercising his free speech right to spew his racist opinions. These blowhards say that no limitation on their rights is permitted, whether it’s criminal penalties, civil damages, or public insults.
Perhaps these oppressed people get their idea about rights from the Declaration of Independence,
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….
But, of course, the Declaration doesn’t confer any rights. Maybe they think the right to mouth off and the right to strut around with guns are God-given. That would explain why they are offended when they encounter consequences for their behavior.
Perhaps they believe these rights spring from the first two Constitutional amendments. But SCOTUS says otherwise in US v. Cruikshank (1875).
The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It ‘derives its source,’ to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, ‘from those laws whose authority is acknowledged by civilized man throughout the world.’ It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution.
…
The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.
….
The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.
The Supreme Court says that neither the right of free association nor the right to keep and bear arms are granted by the Constitution. By that logic, neither is the right of free speech. The cases applying these amendments to the states under the 14th Amendment do not reject this reasoning.
It seems that our rights depend on the interpretation by five members of SCOTUS of a word like “republicerad”, or of whatever they think they know about our tangled history. If so, there is no way to explain anything about our rights. That’s especially true of this version of SCOTUS, which doesn’t even pretend to care about precedent, and invents rules to suit its preferred policy outcomes.
Preliminary Ideas
I’m going to read and write more about our rights. For starters, here are some thoughts. It will be interesting to see how these thoughts hold up against other people’s ideas.
1. Every idea people have about everything was invented by a human being. This is a point made by the early Pragmatist William James; see the last part of this post. This is the second in a three part series on Pragmatism, the other two are here and here. They lay out the basic ideas that help me to understand our world. For those interested in how this philosophy works in our time, take a look at Philosophy And Social Hope by Richard Rorty, a collection of essays by the late Pragmatist.
2. One problem with our Bill of Rights is that the language is unhelpful. Many of them are couched in the negative, leaving open the nature of the positive right. Others use imprecise language, such as “cruel and unusual”. From the beginning these amendments were seen as limits on the national government. When the Supreme Court began to implement the Reconstruction Amendments, it imposed the language in the Bill of Rights limiting the national government on the states. The result was the eradication of the power of the states to participate in the regulation of these rights. This was a major change in our federalism. And we were left with the vague language, now subject only to the interpretation of SCOTUS. Constitutionalizing these ill-defined rights leads to inflexibility in thinking about their content.
3. What exactly do we mean by “rights”? As a starting place, and in keeping with what I take to be the position of First Amendment absolutists and the gun nuts, we mean that no one is allowed to interfere with some action taken by another. For example, the right to own a gun means no one can interfere with anyone else’s right to buy and own a gun, including violent criminals and domestic abusers. The right to free speech means no one can interfere with the right of anti-abortion fanatics to scream outside my neighborhood abortion clinic.
4. Rights are inherently social, not individual. Every right requires a concomitant imposition on everyone else. The existence of rights limits the way our society can regulate itself. For example, anti-vaxxers may make religious liberty claims, while others point out that refusal to get vaccines threatens their children. If the anti-vaxxers prevail, we are all exposed to greater risk of illness and death.
This implies that rights should have a political aspect. Our current system is heavily biased towards a legalistic approach, empowering courts, especially SCOTUS, with undue power. It also focuses on the claims of individuals and ignores the impact on society and the claims of people not in the litigation. Dobbs is a good example: the plaintiff was the state government, and the defendant was an abortion clinic. What about pregnant women? What about their families? What about he impact on society? Alito and four other self-righteous rulers don’t care.
New Series
My next book will be The Evolution Of Agency by Michael Tomasello. I think it indirectly supplies a more useful approach to thinking about social relations, and thus rights. It’s short, and easy reading (mostly).
In this post I discuss the Epistemic Regime as described by Jonathan Rauch, in his book The Constitution Of Knowledge. The Epistemic Regime is the way we arrive at truth in the Pragmatic sense. I think it’s good background for some of Tomasello’s ideas about our species.
I’d like to follow that with books or papers about the theory of rights in the US. I don’t know what that will be yet, and if anyone has a suggestion, please put it in comments; also I’m still on Xitter @MasaccioEW, and slowly moving to BlueSky. @[email protected].
Ed, for background, you might want to take a look at “The American Language of Rights” by Richard Primus, published in 1999.
“Rights are inherently social, not individual”. Thanks for that.
Big stuff. I am grateful for people like you in this world.
I think it’s more than a little odd that the group that is loudest about “rights” is also the group that is advancing minority rule and authoritarian figures.
Or maybe that’s just human beings doing their usual thing?
I highly recommend “Allow Me to Retort: A Black Guy’s Guide to the Constitution” by Elie Mystal. It is provocative and inflammatory and an eye-opening perspective on the Constitution and the law.
I highly recommend reconsidering the use of modifiers “provocative” and “inflammatory” when describing an informed work by a Black American attorney, writer, and political commentator. The overview of the recommended text reads:
What’s truly “provocative” and “inflammatory” is the perspective that Mystal’s writing on the Constitution is labeled so and not what the GOP has been doing to destroy democracy.
Agreed, it was a poor choice of words on my part, thanks.
Bravo, well said.
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I did not know that Elie Mystal had a book out–thanks for that.
I have read it as well and and passed it along to friends and family. It is education too. He’s worth a follow on Xitter (only unfortunately).
Blog,
As an aside, I have it on good authority that listening to him read his book is fun way to consume it.
datnotdat
I would suggest two books.
How Rights Went Wrong: Why Our Obsession With Rights Is Tearing Us Apart by Jamal Greene. Mr. Greene is the Dwight Professor of Law at Columbia Law School. Per Jill Lepore in her forward to the book, echoing Mr. Walker above “… We believe holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting – reducing the law to winners and losers. The resulting system of legal absolutism distorts our laws, debases our politics, and exacerbates our differences rather than help bridge them.” Professor Greene has an Ed Walker-like discussion of exactly what that means for us as well as a way potentially out of the situation.
Constitutional Fate: Theory of the Constitution by Philip Bobbitt. Mr, Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. Justices. like all of us, have been conditioned by others and themselves to a particular viewpoint of the Constitution. Mr. Bobbitt defines six lenses/arguments through which Justices see/portray the Constitution. Professor Bobbitt has an Ed Walker-like discussion about each of the lenses/arguments and their potential meaning. Since we are at the mercy of the majority ruling Supreme Court it is a wonderful book to understand why Justices think the way they do, how they seek to govern us as the third branch of government, and what that means for “rights” as we may perceive them.
Thanks for suggesting the references as I did read/listen to How Rights Went Wrong:.. which really helped me understand the reasoning that goes into deciding about our rights. I disagree with some of the authors’ solutions but that is par for the course.
I will listen to your other suggestion as I want to understand how people arrive at a constitutional philosophy.
My simple take on the Constitution is that it is at its core a “good neighbor” document as it attempts to maintain individual freedoms while offering a framework when that barrier may be breached when something as powerful as the State comes knocking on the door.
Thank you. I believe Ed Walker would enjoy both books.
Philip Bobbitt has other books. One favorite is a tome called the Shield of Achilles. I suspect you would like the book. You can always read book reviews on Amazon to see if it has any appeal for you.
On Rauch’s book, do you mean “The Constitution Of Knowledge” rather than “The Construction…”?
Yes indeed, and I’ll correct it in the text. I’ve been getting it right about half the time, and keep thinking I know it without looking it up again.
Hohfeld on Rights and Privileges, by DAVID M. ADAMS. Archives for Philosophy of Law and Social Philosophy. Vol. 71, No. 1 (1985), pp. 84-95, and the seminal work it summarizes in part, by Hohfeld himself (footnote 1).See also the references in footnotes 2 and 3, which appear relevant to your quest, pictured on the free preview page linked below.
https://www.jstor.org/stable/23679529
Apropos of nothing to do with this thread the first association that popped into my head after reading the title was from Billy Idol: Les yeux sans visage
A book I would recommend as far as the recent distortion of the 2nd Amendment is “Madison’s Militia: The Hidden History of the Second Amendment” by the unfortunately named Professor Carl T. Bogus. He lays out quite a compelling case (in my opinion), that the “historical” basis for Scalia’s claim in Heller that the 2nd Amendment was meant to confer an individual right to own firearms is anything but historical. He goes back to where that language came from – largely borrowed from the language of four state consititutions existing before 1791 and the English Declaration of Rights of 1689. In short, none of them were based on the idea of an individual right.
I tend to look at this from the framework in former Justice Breyer’s book Active Liberty. The book suggests a framework of freedoms (individual rights) and liberties (group rights). Under the fifth function of government (secure the Blessings of Liberty), our constitution gave the government the ability to define who has liberties and freedoms as well as adjust the balance/boundary between individual rights and group rights.
Take driving (a group right, i.e. liberty). If you meet the government created thresholds, you have the right to drive. That right to drive is secured by among other things this large flat space near my house called the 405 freeway. Since the government secured the right to drive and define that right to the 405, I no longer have the right (freedom) to use that flat space to play street hockey.
Breyer used a see saw with freedom on one side and liberty on the other. The government had the ability to define who has the freedom, who has the liberty and ultimately where the boundary separating the two. In Roe v Wade, the courts set the two players (freedom v liberty) and set the boundary. In Dobbs, the court ignored the two previous players and redefined the issue with two new players and therefore a new boundary.
In general, I tend to find that Republicans favor the freedom (no masks, guns legal, etc.) over the liberty (public health, public safety).
The Constitution does not in fact grant any rights. that would imply The Constitution has an inherent authority that does not seem to be granted to it by the people.
The Constitution can only protect the rights of the people from being infringed upon by a government body intent on oppressing the people of a free society.
Granting rights is something a king or emperor would have the authority to do since under them the people only have the ability to do that which is allowed by their authority.
The Constitution is not a king and neither are the elected representatives of the people of the United States of America.
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What a nebulous load of insane drivel. If you return, please make a meaningful comment.
Well that is a well thought out and provocative rebuttal.
I’ll have to think about this before i come with with an answer
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Lol, don’t waste our time. And that is all you have done so far.
Exactly. Did this person even read the post?
Not much of a gambling person, but will bet no.
Monarchs can’t grant rights. They’re innate to one’s humanity. Monarchism only describes a form of government which may limit human expression of their innate human rights.
Monarchs can grant whatever they want. If they want to tell their royal subjects that they’ve been granted rights then that is exactly what their royal subjects have been granted. The narrative belongs entirely to the monarch.
We are in agreement, however, rights can not be granted whether by monarch or document. Rights are inherent in humanity and can only be protected by The Constitution, not granted.
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You’re full of shit about monarchs granting rights — they are not gods. You need to read the UN’s definition of human rights:
If you’re human you have rights. Period. They cannot be taken away, only suppressed or denied.
Your sock puppeting is not helping your position.
Lol, or just get lost and do not return.
Mr. Walker – I have been offline for a few days, so I am just seeing your post. “Rights” are an interesting, not to mention broad and deep, area for discussion and reflection. Taking it back to the anthropological – as sophisticated animals, we have no more “rights” than any other mammals born on to this rock circling a star in space. However, over the last 200-300,000 years, we as humans, have set up hierarchies in social groups, political groups, religious affiliations, etc. that reflect social and economic standards that evolve and develop over time. As Jared Diamond, who wrote Guns, Germs and Steel, has said, these hierarchies only developed after people had enough to eat. That is when the conferring of “rights” began, in my opinion. And this granting of rights inevitably followed who had the most food, weapons, breeding partners, etc. Humans are very basic, need-driven creatures. Thanks for the thoughtfulness and intellectual curiousity you bring to this wonderful site. I look forward to your future posts about rights and other topics!
As I too have been off the site for several days – internet woes – a late addition to the list might be Laurence Tribe’s “Invisible Constitution,” arguing for a discussion of rights conferred (over time, such as the right to privacy) as evidence of the Constitution as a living document. Also the United Nations Universal Declaration of Human Rights is an inspiring, plain-spoken aspirational read.
Thanks to all who have made suggestions. I’ve looked at some and will look at the rest.
Excuse me if this is resolved elsewhere or off topic…
I think I read a few years ago, as part of a dive into the tangled reasoning of Neomi Rao, that the legal profession was trying to ‘clarify’ the balancing of positive and concomitant negative rights. Is this so?
Within that framework, I have wondered if there was a route to looking at the First and Second amendments in terms of what one might call ‘reach’ in a somewhat concrete fashion; the idea is to go to physics. With speech one attaches the volume of the bullhorn or the speed of dispersal. With guns one attaches rate of fire, muzzle energy and muzzle velocity, characteristics of penetration.