rights definitions distinctions derivation. misunderstandings about rights the assertion of a right...

RIGHTS

DEFINITIONSDISTINCTIONSDERIVATION

MISUNDERSTANDINGS ABOUT RIGHTS• THE ASSERTION OF A RIGHT = THE

EXISTENCE OF A RIGHT• RIGHTS ARE SELF-EVIDENT• THE ASSERTION OF A RIGHT ENTAILS

NOTHING BEYOND THE ASSERTION• THERE ARE NO SUBSTANTIAL

DISTINCTIONS BETWEEN KINDS OF RIGHT

• ALL RIGHTS HAVE EQUAL STATUS

DEFINITIONS

• BASIC DEFINITION– CLAIM BASED UPON AN IMPORTANT VALUE,– RECOGNIZED BY THE COMMUNITY,– IMPOSING A DUTY ON ANOTHER TO ACT OR

FOREBEAR,– THEREBY PROTECTING THE CLAIMANT IN

THE PURSUIT OF THE VALUE.• RIGHTS CONFER POWER AND PROTECTION• RIGHTS LANGUAGE IS OFTEN ADVERSARIAL

ALTERNATIVE DEFINITION

• A RIGHT ENTAILS AN OBLIGATION OR DUTY IMPOSED ON ANOTHER, REQUIRING A CONSENSUS IN IDENTIFYING THE BEARER OF THE DUTY, TO ACT OR FOREBEAR IN A WAY, WHICH PROMOTES THE GOOD EMBODIED IN THE RIGHT FOR THE WELFARE OF THE CLAIMANT.

DISTINCTIONS

• MORAL– [WISHES] APPEAL TO THE ENLIGHTENED

CONSCIENCE– “HUMAN RIGHTS” FLOW FROM HUMAN NATURE

• LEGAL – [POWER TO SUE] APPEAL TO CODES OF LAW

• POSITIVE– IMPOSE A DUTY TO ACT

• NEGATIVE– IMPOSE A DUTY TO FOREBEAR [BEHAVE WITH

RESTRAINT]

ADDITIONAL DISTINCTION

• INDEFEASIBLE RIGHTS– RIGHTS WHICH OTHERS CANNOT

JUSTIFIABLY OVERRIDE

• INALIENABLE RIGHTS– RIGHTS WHICH THE BEARER MAY NOT

RENOUNCE

DERIVATION OF RIGHTS

• GOODS [THAT ARE VALUED]– Colonists Coming to America (17th & 18th

Centuries)• INDISPENSABLE GOODS/VALUES TO

ACHIEVE SPECIFIC GOALS– Colonists Developing Goods/Values for Self-

Determination (18th Century)• ASSERTION OF MORAL RIGHTS [WISHES]

– U.S. Declaration of Independence (1776)• CODIFICATION OF LEGAL RIGHTS

[STRUCTURED PROTECTIONS AND THE ABILITY TO SUE]– U.S. Bill of Rights (1791)

WHY A BILL OF RIGHTS

• A MAJOR PART OF DEMOCRATIC INSTITUTIONS

• REDUCES CITIZEN VULNERABILITY• PROTECTS CITIZENS FROM EXCESSES• EMPOWERS CITIZENS• GIVES CITIZENS A VOICE• GIVES CITIZENS STANDING• ALLOWS CITIZENS TO PARTICIPATE IN THE

DETERMINATION OF THEIR DESTINY

U.S. CONSTITUTIONAMENDMENT XIV; SECTION 1• ALL PERSONS BORN OR NATURALIZED IN THE

UNITED STATES, AND SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED STATES AND OF THE STATE WHEREIN THEY RESIDE.

• NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH ABRIDGES THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES;

• NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW;

• NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS.

FUNDAMENTAL RIGHTS

• ENTITLED TO THE CONSTITUTION’S PROTECTION

• “OBJECTIVELY, ‘DEEPLY ROOTED IN THIS [SOCIETY’S] HISTORY AND TRADITION,’ AND ‘IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY,’ SUCH THAT ‘NEITHER LIBERTY NOR JUSTICE COULD EXIST IF THEY WERE SACRIFICED.’”– Washington v. Glucksberg. U.S. Supreme Court

(1997).