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Aspects of law and jurisprudence are analyzed and critiqued, generally in terms of the POOP. Occasionally, non sequiturs!

The metaphysics of rights

Background
For the purposes of this discussion, I'm going to be talking about legal rights rather than moral ones. A legal right, of course, is a right which is protected or guaranteed1 by law; it is distinguishable from a moral right in that it has no normative element. That is, strictly speaking, a discussion of whether or not you have a legal right to X cannot involve questions of whether or not you should have such a right. The existence of  legal rights raises questions of "should" only to the extent necessary to balance competing rights and interests (e.g., my right to swing my fist versus yours to not get punched in the nose), but without access to some sort of objective morality or ethics.
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Now, when you bring a lawsuit alleging that your Constitutional rights have been violated, the court will engage in what is essentially a two-step inquiry:
  1. Does the right you're claiming actually exist? That is, is it a legal right, granted/created under the proper authority?
  2. If so, is your attempted exercise of that right a valid exercise?2
For rights enumerated in the Bill of Rights, the answer to the first question is simple. The second question is the one that raises the need to balance competing rights and interests. Because this part of the inquiry calls for a consideration of a variety of policy arguments, it becomes very easy for the court to sneak its normative judgments into its decisions.

For rights not expressly enumerated in the Bill of Rights, the first step of the inquiry becomes more difficult – the court has to determine whether or not the right you're claiming is really protected. There are a number of ways that courts try to answer this question, most of them involving exegesis rituals and all kinds of hand-waving and posturing. The short of it is that this is a more difficult barrier to pass than the second question because there is generally less support available for a claim like "Right X exists" than for one like "Behavior Y is a valid exercise of right X," not least because policy arguments are more acceptable with regard to the latter.

So, every time a court is asked to decide whether or not a given unenumerated right exists, it will start the analysis from scratch, trying to answer the fundamental question – "Does right X exist?" Which brings me to...

My Beef
Judges generally remember that a given right entitles you to affirmatively exercise it – the right to vote entitles you to vote. What judges tend to overlook is that the thing fundamentally protected by a right – the entitlement created by a right – is not the behavior, but the choice. This distinction is made clear by considering the difference between a right and a duty.

You have a duty to act in a particular way when the law cannot prevent you from acting in that way, but can prevent you from not acting in that way. You might think of paying taxes as a duty (unsurprisingly, some forms of taxes are called duties, as you can confirm every time you see "duty free" stores in airports). Military service might be a duty, like it was for some time in the US and currently is in many places, like Israel. Refusing to pay taxes in the US is unlawful. Refusing to serve in the military in Israel is unlawful. This is the essence of legal duty.

You have a legal right, on the other hand, when the law cannot prevent you from acting in a given way, but also cannot prevent you from not acting in that way. Because I have the right to vote, the government can neither prevent me from voting nor compel me to vote – the choice to not vote is an exercise of the right to vote. To the extent that judges allow the government to restrict my right to vote (if I were a convicted felon, for example), they must do so on protected-exercise grounds rather than existence-of-right grounds.

The problem is that many of the most interesting and controversial issues of the day – the rights to die (physician-assisted suicide), abortion, access to contraception, and the like – are being litigated as if they were assertions of new rights. As a result, courts have spent a lot of time on the first step of the two-step inquiry and often found no textual basis for "creating" the right.

There's a logic gap here. It is as if, were Congress to pass legislation making voting mandatory, courts would be faced with the question of whether or not the right to not vote exists. As I mentioned above, the choice to not X is an exercise of the right to X.

Now, starting with voting rights is a pretty good idea because there's really only one way to vote and only one way to not vote. It's binary, so it makes the logical and semantic steps really clear. Most rights aren't so binary, so the lines get blurrier. For example, the Constitution expressly creates a right to life. Applying the reasoning from above, we see that the right to life necessarily includes the right to not live. It seems intuitive to me that this would include the right to commit suicide, and most modern legal systems decline to treat suicide (or attempted suicide) as a crime. Does my right to suicide entail a right to assistance in committing suicide? If so, does my having that right afford any protection to those who assist me? (Most modern legal systems do criminalize assisting or inducing a suicide.) Though these questions are more difficult, they are still fundamentally questions of balancing competing rights (mine vs. the physician's) and interests (mine vs. the state's).

Logic will not permit a court to say that no right to not X exists – the right to not X is an intrinsic part of the right to X. Instead, a court that wants to uphold a law abridging that right can do so only by refusing to recognize "not X" as a protected exercise of the right to X. Courts are free to do so. But engaging in existence-of-right discourse where protected-exercise discourse is appropriate is either sloppy or dishonest.

It is tremendously important, in law perhaps even more than in other fields, to be asking the right questions and talking about the right things. When dealing with rights, courts very often fail in that. And that's my beef.

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1. This is actually a very significant distinction. In some legal systems, like Japan's, rights are guaranteed to individuals and are enforceable against anyone, including other individuals. In other legal systems, like ours in the US, rights are protected and cannot be infringed by the government, but are (with rare exceptions) unenforceable against non-state parties.
2. Even though I have a right to freedom of speech, my attempt to exercise that right by making defamatory statements about you in public is probably not valid – the laws that let you sue me for slander/libel therefore do not conflict with the 1st Amendment.

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