Revisiting “rights”

I wrote an article some time ago with regards to rights and in particular the Second Amendment for which its advocates often claim that the Constitutional Rights are absolute. So it is worth revisiting the concept of absolute (inviolable) versus legal rights.

RIGHTS

It should be remembered that the Constitution is a LEGAL document which largely frames our form of government. It does spell out some rights as well in the context of this legal document.

In the legal arena and philosophy, there are legal rights and then there are what can be considered inalienable rights. There is a long philosophical history of the distinction going back in more recent eras to John Locke, Rousseau and Hume (as well as being debated by Mills and Bentham in England). The general distinction, in short, is that inalienable rights are rights that are non-transferable, non-sellable. Locke famously penned the phrase “life, liberty and property.” Sound familiar? But Locke was also proceeding from a mercantilist based nation and property was certainly a major aspect of English common law. Jefferson leaned more toward the Hume and Rousseau version and penned “life, liberty and the pursuit of happiness” in the Declaration of Independence. (As an aside, it is useful to note that the Declaration is NOT a governing document. It is a declarative list of grievances which were cited as justification to the world for the American colonies to separate from the British empire and become independent).

Inalienable rights have also been called ‘natural rights’ and viewed by some to spring from ‘natural law’ which, for religious persons is handed down by the deity and for non-religious be be part of our natural state as human beings. This could spin out to a completely different discussion so we will stay close to the distinction between legal rights which are created by society and the governing state presumably, in our case, under a democratic legislature of representatives — versus — inalienable rights. [1]

In the Declaration of Independence, Jefferson wrote that we have the inalienable rights to “life, liberty & the pursuit of happiness.” Per the distinction above, these are non-saleable, non-transferable and would fit the definition of inalienable. Jefferson purposely did not use the word “property” as Locke did.

When Madison wrote the US Constitution, nowhere in it did he use the term inalienable. The Constitution IS our governing document. It organizes the government and spells out rights and responsibilities. The Constitution also includes all of its amendments- not just the familiar first ten known as the Bill of Rights. There are other amendments bestowing rights such as the 15th guaranteeing the right to vote -at the time for black men as only men could vote then, but was followed by the 19th which gave women the right to vote.

We have a right to vote which has often been infringed upon. There are also many regulations and rules regarding voting. We have a right to free speech, but it too is regulated such that you cannot libel or slander someone or shout fire in a crowded theater or incite violence. So the rights IN the Constitution are not inalienable.

[1] https://www.britannica.com/topic/human-rights/Natural-law-transformed-into-natural-rights