What is a Right?

Civil rights. Inalienable rights. Human rights. Animal rights. Individual rights. Group rights. God-given rights. Sacred rights. Natural rights. Positive rights. Negative rights. Children’s rights. Parent’s rights. Patient’s rights. Property rights. Personal rights. Basics rights. Fundamental rights.

Just what is a right? Can some rights be more basics or fundamental than others? Which is more important, a basic right or a fundamental right? Do the rights of the many outweigh the rights of the few? Are rights absolute? One could assert whole new kinds of rights and then argue about where they fit in among all the other rights. How about essential rights, or core rights, or perhaps preeminent rights?

Definitions of the nature and origin of rights vary widely – from a gift from God, to one of Thomas Jefferson or James Madison’s tenets, all the way down to “a good thing” – but these disputes can be left to theologians and historians and scatterbrains. Let constitutional scholars debate the fine points of original intent or understanding (of each delegate? or the drafter of a particular clause? or the Convention as a whole? or Congress? or the ratifying state conventions?). What really matters is how rights function within our constitutional system.

A person saying he has the right to XYZ, for instance, is saying that regardless of what other people want, he must have XYZ and society must give it to him. To admit there is such a right is to accept that the opinion of the majority on his having XYZ is meaningless; it is to accept that your opinion on the issue is meaningless, too. As anti-democratic limitations on the scope of majority rule, rights are like provisions of the Constitution. Indeed, they are one and the same, because in a practical sense – the only sense that matters – a right is a government policy that must be so regardless of majority will.

Any constitutional provision can be seen as a right. For example, Article I, Section 9, Clause 5 – “No Tax or Duty shall be laid on Articles exported from any state.” – can as easily be: “Every person has the right to export Articles from any State without a federal Tax or Duty laid on it.” The first part of Article II, Section 2 is the equivalent of “The President has the right to be Commander in Chief of the Army and Navy.” One could say he has the right to veto laws and grant pardons. A Supreme Court Justice has the right to serve for life, and the Supreme Court has the right to original jurisdiction over cases involving foreign ambassadors. The residents of every state have the right to representation by two Senators. People have the right to have their federal laws enacted by a Congress consisting of a Senate and a House of Representatives. There are many more such variations on the theme, but the point is that the Constitution is nothing but a long list of rights, that is, government policies that must be so regardless of majority will.

In addition to provisions limiting the ability of Congress or the President to change the general structure of the government apart from the amendment process, the Constitution contains many specific limitations on government action that are recognizable as rights. The narrow definition of treason means that a person has the right not to be convicted of treason for a crime that does not fit the definition. The privileges and immunities provision is a right, as is the jury trial guarantee. The Constitution protects creditors by prohibiting states from voiding contracts (as they had done under the Articles of Confederation). Congress may not pass a bill of attainder (a legislative pronouncement of guilt) or an ex post facto law (making an act illegal after it was committed). The habeas corpus protection against arbitrary arrest is one of the most important rights protected by the Constitution.

As Alexander Hamilton pointed out in Federalist 84, the Constitution contains these rights and more even without the amendments known as the Bill of Rights. Can the Bill of Rights protection against unreasonable searches somehow supersede the right to a jury trial spelled out in Article III? Does freedom of the press outrank freedom of speech? Is the 3rd Amendment ban on quartering soldiers in private homes more important than the 13th Amendment ban on slavery? Does the order in which they are listed matter, so that freedom of religion is more important than freedom of speech? No, to all these questions. Since the entire Constitution – every rule in the rule book – must be so regardless of majority will, every provision of the original text (where unamended), of the Bill of Rights, and of the later amendments is no more or less important than any other.

Since the entire Constitution – from “We, the people” to “shall have intervened” – is one long right and rights can only be exercised within our constitutional framework, constitutional rights are the only kind with any meaning. As determined, ultimately, by the Supreme Court, an issue is either a political question – meaning it is to be decided by majority vote – or it is a constitutional right – meaning the correct decision, as determined by the Constitution, must be imposed on the American people whether people want it or not. In the latter case, figuring out just what it was the Constitutional Convention decided for us on a particular issue may be difficult to determine, but the task does not involve balancing one provision of the document against another.

Some rules in our society’s rule book cannot outweigh other rules; they are all equally valid. Once understanding that any part of the Constitution, whether expressed as a provision or a right, is a policy that must be so, a person can see the absurdity of trying to balance one right against another. Gone are tussles between rights and responsibilities, positive rights and negative rights, the rights of the many and the rights of the few, personal rights and property rights, human rights and economic rights, group rights and individual rights, fundamental rights and not-so-fundamental rights. No constitutional right can be outweighed by some other consideration, because all constitutional rights are absolute. Either something is mandated by the Constitution or it isn’t.

This essay is adapted from Back to Basics for the Republican Party, a history of the GOP cited by Clarence Thomas in a Supreme Court decision.