Point-Counterpoint: The Nature of Rights
Point: The Moral Aristocracy
By Billy Joe Mills
We are a generation that believes in our rights - our right to underage drinking, abortion, smoking pot, wealth, higher education and others.
Prior to Roe v. Wade, individual states voted on whether abortion should be legal; each state could decide what policy best suited its residents. The issue of abortion was democratically decided. In Roe, the Court made abortion a Constitutional right; it elevated the invented right of privacy to the same status as the speech in this column.
By doing so, it usurped the right of the people to vote on issues not patently settled by the Constitution. They concluded that the wisdom of nine robed sages was superior to the collective wisdom of millions of American voters. The justices, after all, have law degrees. (It is not a coincidence that Rohrscheib will soon graduate from law school).
History has an analogy to Roe: the Dred Scott case created the right of whites to own blacks as property, striking down the Missouri Compromise.
This does not mean the Court should never overrule the will of the majority and force social progress. Brown v. Board of Education was correctly decided because it realized what had been settled by the Civil War and the 14th Amendment: the world's leader of democracy cannot be legitimate unless the races are equal under the law.
Substantive due process and the magical discovery of rights will allow conservatives to summon their own set of rights. This will haunt liberal rightists. In 2000, conservatives invented the right to determine the outcome of the Bush v. Gore election. In Kansas, conservatives are trying to create the right to have their religion taught in schools, under the guise of Intelligent Design.
Concocted rights allow the possibility of conflicting rights. Inevitably, an invented liberal right will collide with an invented conservative right. For instance, the religious right wishes to dream up the right to life of the unborn, which will crash into the right to privacy of a pregnant woman.
Both are arbitrary, whimsical and egotistical opinions. They assume their morals to be universally optimal for all states and all Americans. Both sides cannot be correct, thus we must leave constitutionally unsettled issues to the voters.
The Constitution is not inert. It was not perfectly crafted to suit an eternity of posterity, as Scalia wants us to believe. But it is also not an open door for liberals or conservatives to pull down vague Platonic rights from the clouds to educate us masses on what our morals ought to be, as Rohrscheib wants us to believe.
The Court should judge based on the totality of social scientific facts, minimizing the arbitrariness of the justices' opinions (citing Professor Carmen).
Our best rights are simple or procedural: freedom of speech, due process, trial by jury and a few others. But, when rights are conjured up they become no more persuasive or permanent than legislation. Rights inventors do not believe in the democratic process, they distrust the morals and intelligence of us, the voters.
They sit as philosopher-kings. They are the moral aristocracy.
Counterpoint: In defense of liberty
By Josh Rohrscheib
My friendship with Billy Joe Mills began as a continuation of arguments from Professor Ira Carmen's Constitutional Law class. Today we are presenting two views on the nature of rights and we both owe Professor Carmen a great debt for challenging us to look for our own answers to these questions.
The Constitution is a living document that responds to the dominant trends in society. Consequently, the interpretation of rights also evolves over time.
Modern right-wing political rhetoric castigates those judges with the audacity to recognize these changes in society by accusing them of "legislating from the bench" and being "activist judges," and my favorite, that these judges are "making up rights."
These rights are not "made up" or "pulled out of thin air." They simply exist as they have for hundreds of years. John Locke called these natural rights. John Adams wrote, "you have rights antecedent to all earthly governments: rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the universe."
Even as they declared our independence, the founders did so citing certain unalienable rights of life, liberty, and the pursuit of happiness.
During the debates over the Bill of Rights, the Federalists feared listing certain rights could eventually deny by omission the broad range of liberty retained by the people. In response to this fear, Madison crafted the Ninth Amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The Ninth Amendment was a key source in protecting the right of privacy. Forty years ago in Griswold v. Connecticut, the Court overturned a statewide ban on selling contraceptives because it violated the privacy right of married couples. While some would say the Warren Court was "making up" the right to privacy, by any modern standard this sort of government regulation is far too invasive.
It is irrational to insist that merely because the word privacy does not appear in the constitution, there is no Constitutional right to privacy. Privacy interests are also protected by the First, Fourth, Fifth, and Ninth Amendments. According to Justice Brandeis, "privacy is the right to be let alone - the most comprehensive of rights, and the right most valued by civilized man."
It is curious that conservatives, who in one breath claim to advocate small government, in the next contend that protections from tyrannical government intrusion do not exist unless those protections are specifically expressed word for word in the Constitution.
These are often the same conservatives who believe the government power should be just narrow enough to fit through the bedroom door.
For the moment I find comfort in a legal truism I heard from one of my other favorite professors, "the Constitution means whatever the hell five Justices on the Supreme Court say it means at any given time." Champions of personal liberty can only hope the new Roberts Court will continue to interpret the constitution respecting our continued evolution as a society.
Published in the Daily Illini on February 8, 2006