What’s a right? What’s not?

Carefree, Arizona

Philosophical basis for rights

The Declaration of Independence gives us a general theory of rights, and the Constitution provides specifics. Liberty is inherent to the individual. So rights are about things that belong to you, such as your views, your chosen path, and your life.

It’s about knowing what’s your and what’s not yours. Your rights don’t belong to those in authority, so protecting your rights means prohibiting the government from doing certain things.

The Bill of Rights stops the government from telling you that you can’t say certain things, that you can’t worship a certain god, or that you can’t own a gun. And the government can’t declare you guilty of a crime unless guilt has been established through due process. The ninth amendment says that your rights are not limited to the ones specifically mentioned in the Constitution. And the fourteenth amendment clarifies that the law protects everyone equally.

Civil Rights

In other words, rights are about not taking things away from you. This goes for civil rights too. The Civil Rights Act of 1964 says equal protection under the law means businesses can’t deprive you of equal access to public accommodations because of race, sex, etc.

It’s important to note that the Civil Rights Act doesn’t require businesses to give anyone a job. Instead, civil rights means that if a business chooses to create a job then they must respect each applicant’s equality under the law.

Rights vs entitlements

But saying the government must give you something (or mandate that someone else must give you something) is qualitatively different from saying you can’t be prohibited from doing something. Just because something is an entitlement rather than a right, though, doesn’t mean the government shouldn’t do it. But it does mean that unlike rights, the government doesn’t have to do it.

By entitlement I mean a government benefit, not someone who wants special treatment. Health insurance is a good example. Healthcare is an entitlement, not a right, because healthcare is about what someone gives you.

The government mandating that private companies must provide an insurance product is problematic, though. If the government decides that everyone should have health insurance as an entitlement then it would be more straightforward if the government provided it directly – by giving everyone Medicare, for example.

Other cases

Because health insurance is not a right, the government can’t prohibit business owners like Hobby Lobby from refusing to provide insurance coverage for birth control, which violates their religious beliefs. It would be different if Hobby Lobby chose to provide insurance that included birth control for some employees. Then equal protection would create a case for giving every employee equal access. But if Hobby Lobby chooses not to provide coverage for birth control to anyone then the government can’t force them to violate their religious principles.

Same sex marriage, on the other hand, is a right. The government can’t stop you from marrying the person you choose. And equal protection under the law reinforces that.

But what about gay wedding cakes? This is a civil rights issue. It’s the baker’s choice to offer services to the general public – the government isn’t mandating that the baker start a business. Refusing to comply with equal access under the law is no different from a restaurant refusing to seat an African-American customer.

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The most important question for Neil Gorsuch

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Phoenix, Arizona

Resisting President Trump’s Supreme Court nominee is bound to be a losing game. The seat will be filled at some point, and Trump is not going to appoint a liberal justice.

But there are different strands of conservatism. George Will brings up an interesting question that should be asked of Supreme Court nominee Neil Gorsuch.

Quoting Lincoln, Will describes the Constitution as a frame of silver for a golden apple, which is the Declaration of Independence. That is, the Constitution details how we protect the Declaration’s ideal that everyone has equal natural rights.

Will criticizes President Reagan’s failed Supreme Court nominee Robert Bork. Bork disparaged the ninth amendment, which says that there may be more rights than are explicitly stated in the Constitution.

Will also criticizes late Supreme Court Justice Antonin Scalia‘s claim that democracy means majority rule with protection for “minorities only because the majority determines that there are certain minority positions that deserve protection.”

Scalia’s ideology seems to disparage natural rights. And certainly it ignores James Madison‘s statement that one purpose of the Constitution is that “the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

Scalia’s disregard for individual rights when the majority see fit not to grant these rights represents a powerful strand of conservatism – particularly social conservatism. And President Trump appears to be in this camp.

But other conservatives emphasize the word “unalienable” in the Declaration’s statement that everyone is “endowed by their Creator with certain unalienable Rights.” And considering Madison’s remarks in Federalist #51, the only way that Scalia-style conservatives can truly claim to be originalists is by denying that the Declaration of Independence is all that important to the Constitution which followed.

Will hopes that Gorsuch’s originalism will differ from Bork and Scalia’s by recognizing that natural rights are unalienable, meaning the majority can’t take them away. But note that is is about protecting natural rights, not the judiciary usurping Congress. This is Will’s conservatism.
We don’t yet know what kind of conservative Gorsuch is. I hope Congress asks him.