QUESTIONS BY WHICH TO STUDY RIGHTS

A while ago, I tried to make a distinction between liberty and autonomy. Both are related to the idea and ideal of rights. Both have to do with being able to do what one wants to do whether because of desires, obligations, associations, physiological needs and/or physiological proclivities. Liberty refers to the absence of power over one's life. The power can be legitimate or illegitimate. Autonomy refers to one's ability to choose what one's course of action will be. The main difference is that liberty, along with referring to human freedom, can describe the level of freedom of any organism, where- as in the case of autonomy, only humans can make life-directing decisions. A pet dog that escapes his/her home can be said to have won liberty, if not safety. But only humans can meaningfully choose and, therefore, only they can enjoy autonomy. Of course, autonomy can be restricted, delayed, or deprived. But if we, at all, can see ourselves seeking, through our choices, those conditions that determine the quality of our lives and how innate that desire is, then we can understand how sad, or even depressing, the deprivation of that ability can be. We can then visualize or feel that we are born with a right to be autonomous – to decide in which ways we can attain our desires. The sense we derive from this state of affairs is that we have a natural right to be autonomous. The natural reactive state of being deprived of what we want is frustration; the natural reactive state of being deprived of the ability to decide what we should do in order to get what we want is hopelessness. In either case, the lack of autonomy leads to a level of discontent.

As a matter of fact, an issue over autonomy arises only when our autonomy, through no action or choice of our own, is limited. So how does this happen? Richard Dagger¹ offers understandable language by which to analyze this area of concern. He first distinguishes between two sorts of rights: special and general rights. General rights are rights we all have because they either enhance or protect our autonomy. For example, we all have the right to participate in economic activity – to be able to work, to exchange for goods and services, to save for future eventualities, and so on – because without this right we would suffer from want for the things that make life possible and meaningful. Hence, in its most basic sense, our autonomy will neither be enhanced nor protected without this general right. On the other hand, special rights are those rights we acquire through agreements with others as when we enter a contractual relation. Here, though, we usually are called upon to relinquish some autonomy or liberty in exchange for the autonomy or liberty we are seeking in the agreement. The agreement is an exchange. General rights are held against all others while special rights are against a specific other party(ies) – that is, the other party(ies) identified in the agreement. Some rights are easily categorized as being either general or special. Some are not. The example I give above illustrates the type that is not so easily categorized: the right to work might be general, but in a particular case, work is attained by an arrangement with another party.

Dagger goes on to provide a four question test by which to determine what type of right a particular putative right² is. By so doing, he gives us a set of concerns deserving of our consideration and he provides questions a civics teacher might introduce in his or her lessons.

Before sharing the test he devised, let me address why determining what type of right a particular putative right is is important. I feel the essence of the concern has to do with the definitional distinction I laid out above. General rights are not rights we accept by choice; they are simply part of the legal-constitutional arrangement in which we find ourselves or is proposed by some political faction. Special rights, on the other hand, are rights we choose to acquire or relinquish through an exchange with others. Even though part of the arrangement usually calls on us to surrender some autonomy, the fact that we choose to be a party to such an agreement is an expression of our autonomy. And all this reflects the questions on Dagger's list: Does the right protect an individual's autonomy? Does the right promote an individual's autonomy? Does the right infringe or violate the rights of others? And can the right be realized? By analyzing the state of a given proposed right, as reflected by the answers to these questions, we discover the content of that “right” and better define what it is.

For example, by answering the question does the right promote an individual's autonomy, we can analyze the issue of whether citizens have a right to health care regardless of whether they can afford either the care or the related insurance coverage. On the one hand, we can readily see that illness can seriously interfere with a person's autonomy. On the other hand, the taxes that are needed to fund universal health care will also restrain people's autonomy. Of course, this leads to calculations and meaningful classroom discussions. It also makes related information more functional to students who might be concerned with their own autonomy. That's just another way of saying that the use of Dagger's questions assists teachers in making their resulting lessons more relevant.

1Dagger, R. (1997). Civic virtue: Rights, citizenship, and republican liberalism. New York, NY: Oxford.

2Putative right is a right someone claims to exist.

NEUTRALITY AND SPEECH

A recurring theme of this blog has been the history of American political thought and how it has shifted from one prominent view to another – from what I have called the traditional federalist perspective to the natural rights construct. Nothing illustrates this more than the shifts in thinking by our jurists as expressed through their court decisions. Of course, leading this change are the constitutional decisions the US Supreme Court has rendered concerning our basic rights. A number of postings ago, I reported on how court decisions concerning religious freedom reflected this shift. This posting will look at the jurisprudence concerning speech.

Michael J. Sandel¹ provides us with a short account of that history. He points out that, just as with religion, the overall view of the courts has been toward prohibiting the government from restricting speech and inhibiting government's ability to promote its version of the good. Government might find constitutional reasons to regulate the expression of speech – in regard to time, place, and/or manner – but such regulation, generally, must not be based on the content; that is, the state is to be neutral in any obstacles that it might inflict upon the exercise of speech.

As with all of the rights contained in the Bill of Rights, before the ratification of the Fourteenth Amendment, the federal government did not have any authority to protect citizens from any affronts to those rights by the state governments. As far as federal courts were concerned, states, such as New York or South Carolina, could restrict speech, for example, as much as they wanted. The US constitutional guarantee in the First Amendment was to protect citizens against efforts by the central government. And even with the one prominent situation in which the central government tried to control speech – the enactment of the Sedition Act of 1798² – the law was never challenged before the Supreme Court. The main challenge to that law came from two state sponsored resolutions – the Virginia and Kentucky Resolutions – authored by James Madison and Thomas Jefferson. These founding fathers' main complaint was not that the law offended the individual rights of free speech or freedom of the press, but that the law interfered with the states' right to restrict speech and the press in the ways the law provided. So much for any concern for individual rights among these founders. I will add that the courts' concern for these rights didn't even cause a ripple in the nation's federal jurisprudence until after World War I.

The first serious judicial concern over legislative efforts to check free speech came about as a result of the World War I laws, the Espionage and Sedition Acts of 1917. An initial standard the court formulated in the cases that emanated from the adjudication of individuals who were found guilty of breaking these laws was the “clear and present danger” standard. That is, a person's right to free expression could only be held unlawful if the speech presented a situation in which the speech would incite people to engage in disruptive and dangerous activities in an immediate time frame. The speech, in addition, had to have subversive content. And to demonstrate the lack of judicial concern for these rights, it took until the late 1920s before the court overturned any of the convictions in these “subversive” cases.

The reluctance of the courts during the era of traditional federalist thought to find favor with those who argued for free speech can be demonstrated with a later developed standard: the “two-level theory of free speech” standard. In a unanimous decision in the Chaplinsky v. New Hampshire case, the court identified a level of speech that did not have the protection of the First Amendment. The Supreme Court decided in 1942 that speech found to be lewd and obscene, profane, libelous, and/or insulting (“fighting” words) – that is, speech that was in and of itself injurious or incited immediate disruption – could be constitutionally restrained by law. What seemed to be valued over individual freedom in this decision was order and morality, not the principle of free speech. The courts continued in this direction of limiting constitutionally protected speech through the 1950s by adding commercial speech, racial defamation speech, and obscenity as not being constitutionally protected.

One of the main criticisms of such rulings was that this two-level approach placed the courts in a position to make very subjective decisions. Trying to determine what speech was profane, for example, called on judges to apply their personal sensitivities. These criticisms increased in number and stridency until the court abandoned the two-level approach in New York Times Co. v. Sullivan. In this case, the court held against a libel decision by ruling that any misrepresentation of the facts that was defamatory had to be shown to be motivated by malice in order to be judged libelous and not constitutionally protected. On another front concerning free speech, Stanley v. Georgia held in 1969 that an individual had the right to receive obscene materials. This general trend in which the courts extended protections for speech – in printed or verbal forms – continued through the 1980s. The court established, with each decision, the principle that government needed to be neutral in its perspective of what the good is in determining what speech was acceptable or not.

Sandel goes on to describe how the court has striven to establish ever more neutrality standards by which to judge the constitutionality of federal and local laws. No area probably has been given more interest than political expression such as the burning of the American flag as a form political protest, or what is considered “hate speech.” But as we keep the overall trend in mind, what I am emphasizing in this posting is that the trend has promoted a view of governance which is neutral and, in turn, enables, if not encourages, the individual to determine what values he or she will strive to adopt – the essential position of the natural rights construct.

With the adoption of neutrality standards, the natural rights perspective has been given a strong legal foundation. We are left free from any collective sense of what the good should be. To what extent? The courts have ruled against laws that prohibit the exhibition of obscene movies at drive-in theaters where the images were visible from nearby public streets. Maybe I am expressing old-fashioned sensitivities, but to say such images do not express our cultural sense of what is immoral, I believe, is a definite change in our collective sense of what government should be allowed to control. In a future posting, I will revisit this topic; the courts have wavered some on this level of neutrality principle. But overall, I will claim that the natural rights construct is well established by and within our jurisprudence.

1Sandel, M. J. (1996). Democracy's discontent: America in search of a public philosophy. Cambridge, MA: The Belknap Press of Harvard University Press.

2A law that made libelous speech against the federal government illegal.