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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Because legal rights are not revealed to us from on high, they must be grounded in some legal text or doctrine. In the US, this generally comes down to the Constitution. Some rights are created directly in the Constitution itself (e.g., copyright and patent rights); however, most of the rights that interest us are contained in the aptly named Bill of Rights, comprised of the first 10 amendments. Most of the Bill of Rights consists of express statements of rights including the right to freedom of speech/religion/assembly, the right to be free of unreasonable searches and seizures, and the like.

There is no question in US jurisprudence as to the existence of rights expressly created by the Constitution. The scope of these rights has also largely been settled, though the Internet age is bringing about a resurgence of freedom-of-speech litigation. The really interesting stuff is happening in the "penumbra" and of the 9th Amendment, which basically says that the Bill of Rights isn't meant to contain an exhaustive list of protected rights (i.e., that rights not enumerated in the Bill of Rights can still be Constitutionally protected).

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.