Wednesday, February 08, 2006

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


Anonymous Anonymous said...


First of all, I want to compliment the two of you on very well-written arguments. This is one of my absolutely favorite subjects in the realm of human relations. It's nice to know that the Law School here is actually fostering thought on the part of its students.

There are a number of concepts that address these questions that immediately come to mind:

First of all, it is my firm belief that government does not, in any way, *provide* people with rights. A right is something that people are granted by God (or, in the case of the secular, are intrinsic to the human state.) The two things that govenments are capable of doing amount to either taking away rights or, for a more benign state, protecting its citizenry from the coercive action of those who would remove such rights.

It seems to me that a good number of the controversies currently floating around come down to a basic question--what ARE the rights inherently possessed by humans?

The Declaration of Independence mentions three.

Life, which is pretty-well defined for anyone who is actually breathing on their own and not eating through a tube.

Liberty--now here's a good one. What exactly does this mean? Obviously it does not mean doing whatever one wants, since allowing this would allow one citizen to coerce another. A lot of the arguments on this one stem from the exact spot where one person's liberty ends and the other person's begins.

Pursuit of Happiness. Here's definitely a WTF moment. What do you two think this means?
Sometimes I think I've got it, other times, not.

Josh's mentioning of privacy being equated with being left alone may miss the mark, in my opinion. I think it is *possible* (although not very likely) for a government to have extended information on a person's activities without using it for any malicious purpose.

I think that the right to be free from coercion is much closer to an innate right than privacy. It's a necessary one for a person to be able to maintain liberty. Unfortunately, it also seems to be one that has fallen by the wayside in the last century.

We've seen the centralized government being asked by idealists, (often with the best of intentions) to move into roles traditionally held by smaller communities (funding of large works projects, social security, medical care for the poor.) The Central Government, having no money of its own, has increasingly had to depend on money that it has coerced from its citizenry to fulfil these programs.

Is this coercion truly a violation of the rights of the populace?

I, like Mr. Mills, do not see a great deal of restraint from either end of the political spectrum as far as coercion goes. The Conservative Wing of the Ruling Party seems to favor coercion and intrusion in the bedroom and the Liberal Wing of the Ruling Party seems to favor instead coercion and intrusion in the Boardroom.

Just some philosophical ramblings on a quiet afternoon.....


3:15 PM  
Anonymous Anonymous said...


The very legs your argument stands on has no basis. A few unsupported claims:

"The Constitution is a living document that responds to the dominant trends in society."

Why's that?

"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."

Define some of those "modern standards." It's my claim this flowery language has no substance behind it.

"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.""

A bit of a strawman, no? Finding some protection of privacy in the Constitution is not tantamount to finding an absolute right - nor even finding a right defined by the specific contours the Court drawn.

Perhaps most interesting about your column is that although the "Point" column led me to believe this was a debate about Roe, the case isn't mentioned in your "Counterpoint." My suspicion tells me this is largely because you're an intelligent guy, and any defense of Roe is unintelligible.

3:53 PM  
Anonymous Anonymous said...

Actual quote regarding you two writing about this topic...

"What a waste... of space."

4:47 PM  
Blogger Joshua said...

TC -

Thanks for your reply. I really enjoyed your posts on the assault weapons ban thread as well.

The Declaration says "among these are life, liberty and the pursuit of happiness" while this wasn't meant as any kind of guiding statute but instead a statement of principle, I think they probably intended this to be fairly open ended. I read "among these" to think these are just some of those rights we consider unalienable and not these natural rights are limited to these three categories.

Almost any regulation is fundamentally a restraint on liberty, be it commercial liberty, social liberty, or a more personal liberty. I believe the Constitution should generally be read much more restrictively with a presumption of liberty in any area where the Constitution doesn't clearly allow regulation.

My biggest problem w/ current jurisprudence is rational basis review of dumb shit legislation. Courts will uphold anything at all so long as there's some kind of reason it's in the neighborhood of the ballpark of a legitimate means of regulating.

One great example of this is the legislation MADD got pushed through the general assembly a few years ago. I know drunk driving is a horrible crime, it claimed the lives of a good friend of mine from high school and her mother, but that doesnt justify every regulation that could conceivably reduce drunk driving.

A few years back the Illinois General Assembly passed a law that says County's ought to forward the id of anyone caught drinking underage to the secretary of state and there will be a one year suspension of your drivers license.

Note: THIS PENALTY IS FOR UNDERAGE DRINKING ONLY - NOT DRINKING AND DRIVING. I wonder how many members of the ILGA had a beer before they were 21. This is particulary problematic in communities like ours where the bar entry age is 18 in Urbana and 19 in Champaign so the city can rake in millions of dollars in underage drinking fees ($290 per ticket in Champaign).

One of the more troubling elements of this law is how it is applied. Currently its left at the discretion of the county and it appears that in Champaign County only the students who fight drinking tickets and lose end up losing their license. If you just pay the fine, you keep your DL.

What nonsense. Just because a kid has a drink underage, doesn't mean he's going to start driving, particularly on a campus where everything is in walking distance and he probably couldnt find a parking spot near a bar if he wanted to. Your car could be in Aurora and if you have a drink in Urbana you lose your DL because everyone in the General Assembly is afraid to ever vote against MADD.

Consider the even more absurd result, a 20 year and 360 day year old who is legally in a bar full of drinks could be falsely accused of underage drinking and if he knows that by fighting the ticket he risks losing his DL he would be coerced into just paying the fee.

This is just bad policy. Sure, it could conceivably reduce the number of people drinking and driving, but you're penalizing people who never committed the crime the law was intended to prevent.

12:24 PM  
Anonymous Anonymous said...

I'm not sure what you two are arguing about--is it substantive due process, natural rights theory, or politics? Your friend misstates almost all of the textualist/originalist constitutional interpretive arguments, while you merely assert that the constitution is a living document without explaining how to reconcile that with the need for some amount of determinacy. Finally, neither of you hits the policy discussion about how to pragmatically advance a rights agenda, and whether the courts or the state legislature may be more effective at promoting rights. I'd argue this is the most significant question for liberal lawyers going fwd--have you shot yourselves in the foot by pushing the agenda in court rather than securing lasting popular victories through legislation?


12:58 PM  
Anonymous Anonymous said...

Josh, I left one right out yesterday that I consider nearly as important as the right to life.


The foundation of any state that even purports to be a believer in rights must rest upon the concept that what someone has created or purchased legitimately belongs to them and they are free to do what they will with it.

This is where I disagree with both the liberals and conservatives in their agendas, for the most part.

I was horrified by the recent ruling that a city could use public domain on property because if it was used for a different purpose (that the city govenment desired), it would raise their tax base and thereby "benefit the community as a whole."

Virtually nothing I have seen in America in the past 45 years has really frightened me as much. (Not even Nixon!)

It's this non-confiscatory right that provides the impetus for my opposition to the greater part of the Federal Income Tax and Social Security taxes.


1:46 PM  
Blogger Billy Joe Mills said...


This comment of yours perfectly exemplifies my points about your position, "Courts will uphold anything at all so long as there's some kind of reason it's in the neighborhood of the ballpark of a legitimate means of regulating."

You feel that you know better than the collective wisdom of the legislature and the votes who installed them. You feel that the Court should strike down laws simply because they object to them, even without substantial Constitutional reason to do so. The State police powers allow it to do what it desires and the courts should not interfere unless the law in question is totally unreasonable. This comment of yours emphasizes how important you believe your opinions are now that you are on the verge of getting your law degree...hahahhaa. You know better than the voters joshua, you know better.

3:05 PM  
Blogger Billy Joe Mills said...

Dear anonymous,

First, if you choose to criticize my buddy and me please have the courage to identify yourself.

Second, you said, "Your friend misstates almost all of the textualist/originalist constitutional interpretive arguments." I would like to make it clear that I did misstate almost all of textualist/originalist arguments, BECAUSE I don't believe in that damned position. I thought I made my position on that subject entirely clear when I stated, "The Constitution is not inert. It was not perfectly crafted to suit an eternity of posterity, as Scalia wants us to believe."

Further you claim that neither of us touches on, "have you shot yourselves in the foot by pushing the agenda in court rather than securing lasting popular victories through legislation?"

But, I did shortly warn liberals as to how this could haunt them in long-run, since eventually conservatives will begin to invent these rights just the same.

Billy Joe Mills

3:06 PM  
Blogger Joshua said...

Billy Joe

Z goes to that overrated institution NYU Law - he's a good buddy of mine from way back who's got a hot date tonight w/ a Belgian LLM. Good luck Z-

<3 J

5:54 PM  
Blogger Joshua said...

Reed - i'm waiting till i have time to respond to your post, i'll get to it soon

8:44 PM  
Anonymous Anonymous said...

BJ, the complaint about liberals pulling rights from thin air is essentially an appeal to a textual or original interpretation of the Const'n. I don't see how you can criticize Scalia's legal philosophy and complain about rights invention at the same time, unless you're taking a position to the right of Scalia. Scalia actually believes in ignoring the Founders on occasion when the result of not doing so is particularly heinous (thus inviting criticism from libertarian die-hards like Eugene Volokh of UCLA).

JR, she's Bulgarian (not Belgian) and the date was a bust. She got drunk at dinner and never called, so I went to the bar w/ Bullerman, Vilas, and another guy I know from law school.

7:17 PM  
Blogger Joshua said...

And the oddsmakers take a beating...

You gotta keep swinging Zeke

Billy Joe thinks any right he doesn't like is a made up right.

10:08 PM  
Anonymous Anonymous said...

I think Dworkin is basically correct that any hard case requires use of judicial discretion, which is not "creating" or "destroying" a right but rather interpreting the law in light of the judge's sense of right and wrong. That said, the reasoning of Roe v. Wade is pretty weak. It is popular because it enables safe and legal abortions, but ultimately the conservative backlash and arguably the Bush II presidency owe their genesis to the intellectual dishonesty and counter-democratic nature of the Roe opinion. Good job, Justice Blackmun's law clerk!


PS, the bulgarian had some lame excuse and suggested going out tonight but I had to preserve some modicum of dignity so I blew her off. Am going out Sunday w/ a hot friend from work. Do you think that is a bad idea?

10:48 PM  
Blogger Joshua said...

Z - dignity? come on??!! go for the girl!

good luck w/ the other girl dont let your pride get in the way of your long term success. keep swinging!

post some thoughts on the contraversy surrounding what our student newspaper did

1:52 AM  
Blogger Billy Joe Mills said...

Z and Josh,

I am certainly not the right of Scalia. I am in between textualists like Scalia and magicians like Josh and probably yourself. I agree with Court rulings such as Lawrence v. Texas and Griswold, but I disagree with the logic used to decide those cases. When deciding a case I would look at the totality of facts - legal, social scientific, scientific, national & international opinion, etc. As opposed to essentially inventing rights, as was done in Roe.

In Roe the Court made a decision with the legal precedences of Dred Scott, Lochner v. New York, Hammer v. Dagenhart, and Griswold. All cases that have been overturned, excepting Griswold...Just as Roe WILL be overturned as soon as there is a conservative majority, which will be SOON. Not only was the legal precendence in Roe shaky, but also the national and internation opinion was split. Thus instead of reflecting the mores of society it dictated what they should be. Scientifically, it has never been clear when human life exists. All of these facts, which can be interpretted on a spectrum, force me to conclude that the Court should have left the decision with the collective wisdom of voters, rather than supplanting the RIGHT to vote.

11:13 AM  
Anonymous Anonymous said...

Billy Joe Mills,

While I agree the best argumentative strategy is to compare your opponent's ideas to those of slaverholders, terrorists, and/or Nazis, you may find yourself not being taken as seriously as you would like when you do.

I mean come on, neither Lochner nor Dred Scott nor Hammer were used as precedents in the Roe decision. There may be some good reason why constitutional privacy protections don't extend to protect your own body, but its probably worth talking about those issues instead of bringing in Dred Scott.

7:01 PM  

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