The thread on the 2nd Ammend. began to discuss rights. This is an interesting and critical subject matter, deserving a thread of its own. We’d often discuss this in social/political philosophy courses, and only come close to something resembling a fair description of what is meant by the term, ‘right.’


What is meant when one says we have ‘rights?’ For example, humans have the right to life - what does this mean?

Where do our rights come from?

How are we to rightly determine the boundaries of our rights?

(I’m wishing this thread luck - too heavy and cumbersome for some!)

From UCLA Con-law professor and 1st Amendment specialist Eugene Volokh:


Given my recent exchange http://volokh.com/archives/archive_2004_06_07.shtml with my friend and colleague Steve Bainbridge about positive and negative rights, I thought it might be interesting to give a slightly broader perspective on rights, at least as that term is used in American law and legal thinking. (None of this is new to Steve, but I thought it might be interesting to some readers.)

The term “right” is a broad one, which encompasses many different kinds of entitlement.

Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).
Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government’s right is a right asserted against other governments). Some people claim that governments can only have “powers,” not “rights,” but that’s not the way American legal usage has operated (see here http://volokh.com/2002_05_12_volokh_archive.html for sources).

Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don’t step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it’s doing something wrong, and the political process would often correct this. So this is something of a right (especially when the judgment is about the government’s proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

Rights can be negative rights, which is to say (quoting Black’s Law Dictionary), “entitling a person to have another refrain from doing an act that might harm the person entitled.” Some examples: Free speech, a negative right against the government; my property rights in my land, a negative right against both the government and private entities.

Rights can be positive rights, which is to say “entitling a person to have another do some act for the benefit of the person entitled.” Some examples: The right to demand that the government enforce your contracts (a constitutional right against the government); the right to public education under those state constitutions that secure such a right (a state constitutional right against the government); the right to get money under an annuity you’ve bought (a contractual right against a private entity); a child’s right to support from his parents (a common-law and statutory right against a private entity).

Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring (a constitutional and statutory equality right against the government) or in private hiring (a statutory equality right against a private party). This may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.
Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

Rights can also be mixtures, or look like one while actually being the other. The right to have a criminal defense lawyer appointed for you (if you’re too poor to afford one) may look like a constitutional positive right, but I think it’s really a constitutional negative right - it’s really the right not to be deprived of your liberty unless you’ve been convicted through a process in which a lawyer has been appointed for you. Similarly, your rights in your property consist of (1) a negative right against private people who would trespass on it, (2) a more limited negative right against the government, preventing it from trespassing on the property unless it takes the property for a public purpose and pays just compensation, and (3) a positive right against the government to protect your property via the court system and the police.
The Constitution and positive rights: As I’ve mentioned above, the federal Constitution does secure a few positive rights. The clearest example is the Contracts Clause, which bars states from impairing the obligation of contracts, and thus mandates states to provide a forum for enforcing contracts. Under this Clause, people do have “[a] right entitling [them] to have another [the government] do some act for the benefit of the person entitled.” (The Court has provided only weak protection for this right, which I think is a mistake, but the right still is a positive right.)

Likewise, the Takings Clause bars the government from interfering with my right to exclude others from my property. If I own some wooded land, the government can’t just say “You must allow everyone onto the land.” I think it follows that the government also can’t simply refuse to enforce trespass laws, for instance by saying “The police and the courts shall not enforce civil or criminal trespass laws against those who trespass on others’ woodland property, or who tear down fences protecting others’ woodland property.” Such a deprivation of legal protection would be close to legally destroying my property right. (It wouldn’t be exactly the same, because it would still leave me with some negative right to be free of legal punishment for defending my property through force.) I think that such a denial of property protection probably would violate the Takings Clause.

In any case, the Contracts Clause example at least illustrates that the quotes Steve Bainbridge gives http://www.professorbainbridge.com/2004/06/the_distinction.html about the Constitution’s securing only negative rights are not completely correct - they are generally right, but they admit of some exceptions.
Many state constitutions provide more positive rights - two prominent examples are the right to sue in court, and in many constitutions the right to a public education.

Conservatives and positive rights: Finally, this helps me elaborate on my point about the rights to property and enforcement of contracts being positive rights that even conservatives and many moderate libertarians generally endorse.
Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say “Come eject these people who are trespassing on my property.” That’s generally seen by conservatives as a right, even if not always a legally enforceable one. It’s the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say “Issue a judgment awarding me damages for my ex-partner’s breach of contract.” That is a legally enforceable right, secured both by common-law and by the federal constitution. It’s the positive right to get (and these days without paying for the entirety of the court’s expenses) a certain government service.
You can go to the government and say “Educate my child for free.” That is a legally enforceable right, secured by state statutes and many state constitutions. It’s the positive right to get a certain government service - one that’s more controversial among many libertarians and some conservatives, though also one that’s broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say “Give me medical care.” That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.
All of these are claims of positive right. Indeed, one can distinguish them on various grounds - for instance, one can argue that government enforcement of property and contractual rights simply “facilitates] private ordering” (see this post of Steve’s http://www.professorbainbridge.com/2004/06/my_tcs_column_o.html) or “provide[s] public goods” (see this other post of Steve’s). I’m not sure that these are perfect distinctions, but I do think there’s much to them. As I said, I generally oppose many proposed positive rights against the government. http://www.professorbainbridge.com/2004/06/the_distinction.html

But none of these distinctions change the fact that
a right to get the government to enforce your contracts (secured by the Contracts Clause and by the common law and statutes of all states),
a right to get the government to protect your property by awarding you injunctions and damages against trespassers (secured by the common law and statutes of all states, and I think by the Takings Clause),
a right to get the government to protect your property by sending out the police or the sheriff to eject trespassers (accepted as a matter of practice everywhere, even where it’s not legally enforceable through a lawsuit against the police department, and I suspect actually legally enforceable in many states), and
a right to get the government to protect you by sending out the police when you call for them (accepted as a matter of practice everywhere, subject to manpower constraints and other limitations, though generally not legally enforceable)
are all positive rights - “right[s] entitling a person to have [the government] do some act for the benefit of the person entitled” (though indirectly also for the benefit of society) - that conservatives and moderate libertarians would generally endorse.

So I return to my earlier point http://volokh.com/archives/archive_2004_06_07.shtml: “[P]rotection of private property and freedom of contract” is indeed a core function of government. Conservatives are right to stress its importance. But it is not the antithesis of positive rights against the government. Rather, it necessarily involves such positive rights (at least in the view of conservatives and most moderate libertarians, and in the American legal tradition of protecting property and contract).

Good stuff, RSU. And nice overview, Barrister.

I’ll add that talk of rights can fill volumes. What is symptomatic of recent generations is that the rights menu seems to be ever-expanding. Counting old, more seasoned rights, I have heard lately of the right to own a gun, the right to have gay sex, the right to a living wage, the right to smoke, the right to abortion, the right to non-traditional marriage, the right to contract for sex, the right to ingest hallucinogenic drugs, etc.

I notice a disturbing pattern. Rights are essentially entitlements in one way or another, and the demand for entitlements continues apace. The ‘gimme, gimme’ gimme’ attitude - buttressed by the hedonism and consumerism of our generation - has made its way into the discussion on rights.

Which brings me to my next point - what happened to talk of ‘duty’?

Others have written about this, but there was a time when most folks were pre-occupied with the responsibilities that are incumbent on a free society, rather than constantly asking for more rights and entitlements.

No more. Few people are concerned with their duties - it’s all about rights.

And that has transformed the American Republic more than anything, I think. It was once about sacrifice, discipline, duty to a higher cause, respect - not it’s about self-gratification and trying to get society to give you a blanket endorsement to satisfy all your wants by granting you all kinds of new rights.

My two cents.

Rights are not granted by government. They are inherent in a democracy. Rights can only be restricted by government.

In the rest of the world. 2nd. and 3rd. world nations) rights are granted to the masses by those in power. They are also resticted by those same individuals.


Beautifully articulated, sir. I think I’m getting misty. I can’t wait to jump into this one later. Except I’ll probably just repeat what you said :slight_smile:

Hey Thunderbolt, your making me use that two volter of mine again! I will have to muse on this one a bit, but I do hear what you are saying. I will briefly watch MTV or the Entertainment channel at times and it does seem many people are consumed by self gratification. What duties should we aspire to? To be productive members of society? To lend a hand through charity? Just curious on your sense of duty.

thunderbolt, while I agree to a certain extent, I largely disagree. On a technicality. That technicality is that the Bill of Rights was never intended to be a comprehensive list of rights. Alexander Hamilton was concerned that it would come to be viewed as such, and for that reason opposed an explicit Bill of Rights. Instead, the Bill of Rights was intended to establish a certain philosophical base-line of rights, and also to help insure that the government could not infringe on certain liberties without explicitly violating the trust of the people. But all rights are delegated to the States and the people, and can only be restricted through law. Therefore, I do not need a law that says I can dance in the street in a pink tutu. If the law is silent on it, I am implicitly granted the right. What many people are protesting now is that the government has taken away certain rights.

I do, however, agree that we are feeling more and more entitled as a society, and that can’t be a good thing.

Hold on, it sounds like we are mixing two issues:

  1. The growing list of rights that people feel they are entitled to.

  2. The concept of entitlement.

Item number two is the kicker. A lot of entitlements are very costly. I’m not entitled to an expensive home, an expensive car and 20oz steaks every night, but if I can afford it, then it is my right to spend my money on these items if I wish.

In the “do what you want as long as it doesn’t affect anyone” world of freedom, I don’t care if there are same sex marriages. Does it really cost me anything or impose on my own life?

People often bristle when someone elses right is counter to their own values, which would preclude choosing that right for themselves. Is it your sense of values that is being trampled when you object to the rights that others claim (assuming they are not claiming entitlements)?

Many proposed rights are opposed for religious or moral reasons. However, in a land that supports freedom of religion or belief, how can you decide which set of moral reasons to impose? This is the morass we get into when we start to intercede in peoples choices.

With respect to duty, that has nothing to do with rights. Rights are simply rights. If you feel compelled to do something in response to having those rights, then nothing is stopping you from doing so. Regardless, your taxes and adherence to the law are really the only duties you should probably owe, in my opinion. That is enough of an imposition for me.

I’m not interested in anyone elses morals when I make my decisions. I’m not interested in anyone elses religion when I make my decisions. If I make a choice that isn’t intefering with your own rights, then don’t bug me if you don’t agree with it. In my opinion, you don’t have the right to impose your moral judgements on my decision making process.


To be clear, I never thought the Bill of Rights was an exhaustive list and my complaint was not that people were demanding right outside of those listed in the BOR.


“Many proposed rights are opposed for religious or moral reasons. However, in a land that supports freedom of religion or belief, how can you decide which set of moral reasons to impose? This is the morass we get into when we start to intercede in peoples choices.”

So you have absolutely no objection to the legalization of prostitution, gay marriage, bigamy, polygamy, polyandry, public nudity, public acts of sex, and consensual cannibalism, all of which are private, consensual choices made by adults?


All laws can pretty well be seen as imposing your moral views on others – it just depends on how you define “morals.” Even negative rights are an imposition of a value judgment, in that you are adjudging individual freedom more highly than some other goal, such as someone’s vision of fairness or efficiency. The only real differentiating factor is that some laws are more obviously moral judgments.

[quote]thunderbolt23 wrote:

So you have absolutely no objection to the legalization of prostitution, gay marriage, bigamy, polygamy, polyandry, public nudity, public acts of sex, and consensual cannibalism, all of which are private, consensual choices made by adults?


Public nudity and public sex acts are, by definition, not “private” choices, as they are PUBLIC displays. But actually, I would have little problem with legalized nudity. As far as cannibalism, if someone left in their will that their body were to be eaten, I’d have no problem with that. Just don’t distribute it through the grocery store.

And just to be clear: I have no problems with gay marriage or polygamy.


You’re making my argument for me.

Why would the public ever want to prohibit public nudity or public sex in the community? What is the reason to outlaw that kind of behavior in a public place?

If an individual wants to walk around naked in public, why should the community restrict him from doing so - after all, that would be the community imposing a moral value on an individual that doesn’t agree with that particular moral value. Right?

What Vroom suggests in an absolute freedom from the community imposing its religious/moral values on individuals.

I lean towards having the government stay out of my decision making process whenever possible.

Cannabalism? You mean there are people that want to have their flesh eaten by other human beings? What kinds of nonsense is this? Have I proposed that everyone can do anything without regard for others and their own rights? No, I have not.

Same sex marriages? None of my business really. Polygamy? None of my business really if that is what people want. Prostitution? Possibly a different animal because of the frequent and damaging abuse of young woman who are forced into it. If you could eliminate the abuse and have people truly choose prostitution, what business is it of mine if you choose to be paid for sex? This doesn’t mean I want you selling sex in front of or to my children, but if you do it in a proper manner why would I care?

I’m not going to go out and campaign to change the laws because they have zero impact on my own desires or choices. Legalizing cannabis? Why not? It isn’t a harmful drug with respect to addiction, violence and loss of control like alcohol is.

Except where someone elses rights or choices have been damaged, none of these things is really your concern. You may make it your concern because you want to impose your values (or your religion) on others, but recognize that this is what you are doing.

So, yes, many things that are controlled should be controlled because they do impact others negatively. Littering is a good example. Drinking and driving is another. Keeping highly addictive drugs illegal is fine by me.

Rights and laws are the grease that helps us determine how we can live and interact together with a minimum of conflict. If we learned not to care what other people do with their own lives so much, we could have less laws controlling our actions.

Keep in mind, I’m not saying your viewpoint is wrong or that mine is right. It’s just a fact that the more militant you are about imposing your values the more militant others are about avoiding your values… and battles ensue with creation or removal of laws regulating these behaviors. In many cases, in my opinion, a complete waste of time, effort and taxpayer money.

Piss off, I know how I’d like to spend my money, and sending it to the government to fund arguments over who can do what (when other people are not reasonably affected by such actions) is not it.

So, yes, I am for individual rights…


I am understanding you. But a few things.

Cannibalism: yes, it happens, just recently happened in Germany.

“Except where someone elses rights or choices have been damaged, none of these things is really your concern.”

Sure they’re my concern, if I think the activities harm the community.

After all, you said yourself that you don’t want anyone selling sex in front of your children. Why not?

The same argument could go for homosexuality - some people wouldn’t want it on display in front of their children. Isn’t this as acceptable as not wanting consensual prostitution?

That’s the problem with absolutes - they don’t go very far in practice. People regulate all kinds of things in the name of public morality and always have.

You do too - “Littering is a good example”.

I respect your viewpoint - I know some civil libertarians quite well and they fell the same.

More later.

TB, just a quick note. The phrase “harm the community” is a bit fuzzy.

If this is REALLY the issue, then simply removing it from the visibility of the community should be good enough… as opposed to an outright ban. However, many controls are not remove it from the community, but outlaw it altogether.

Anyway, decency is a funny issue. Do you think other people become indecent because they’ve seen indency? In some countries clothing is more optional and in some it is more controlled. What a waste of time. Sure, you might be afraid that the sight of a boob will scar you for life, but hey, decency is simply what you are currently used to.

Maybe my religion calls for public nakedness… :wink: