I was reading a friends live journal today when I sort of tripped over an interesting question/area of political philosophy.

The area concerns the concept of "rights". Dictionary.com defines a right as: "A just or legal claim or title."

The example that came to mind was the concept of marriage. In 1996, Clinton passed the Defense of Marrige Act (DOMA). At first glance I can't find anything in the constitution that would give Congress the power to legislate marriage. As a result, if I were on the SCOTUS, I would strike down the act as being outside of Congress' purview. However, in doing so am I creating a "right" for homosexual couples to marry?

note: the purpose of this example is not to create another gay marriage debate. Its to illustrate a potential premise for the question(s) below.

Questions for debate:

1) If the constitution enumerates what powers the government has (ie, what areas they *can* legislate), does something have to be a "right" in order for us to tell the government they can't regulate it?

2) Conversely, would telling the government they weren't given the power to legislate that area indirectly create a "right"? (or implied right)

Allow me to buck your questions for a moment and explain a right. I do not buy the dictionary's definition because that's the same book which called love a chemical dissemblance. A right is a personal freedom the government can neither control or regulate. A right is a protected liberty and tells citizens what actions may be taken that are not considered illegal.




No. Considering there is an entire political body who decides what is right for the people, that is supposedly represented by the people (very rich, usually corrupt people); all that must happen to entail people telling the government they cannot regulate something is for someone to have some time to sit down and launch a complaint.




It would set a spring-board for a debate to turn it into a bill which could eventually lead into a Constitutional right. I do not think telling the government they cannot regulate something turns it into a right in the most loose sense. "Debate precedent" would be a better phrase to use. But a right? No.

If the constitution enumerates what powers the government has (ie, what areas they *can* legislate), does something have to be a "right" in order for us to tell the government they can't regulate it?

Technically, no. Not with respect to the federal government. Congress is limited in its general power to regulate on a national level by the interstate commerce clause. However, the commerce clause has been read so broadly so as to render the limitation almost meaningless (ex. medical marijuana case).

States on the other hand have broad powers to regulate. Unless there is a specific restriction in a state constitution, states have pretty much full power to regulate unless it implicates a "right".

Conversely, would telling the government they weren't given the power to legislate that area indirectly create a "right"? (or implied right)

No. In your example, to say that Congress does not have jurisdiction to pass the DOMA, would not indirectly give rise to a right to gay marriage. Although, I cannot imagine a finding that DOMA is not within the Commerce clause jurisidiction, given how broadly that clause has been read in recent years.


These questions raise the very interesting issue of how one determines what constitutes a "fundamental right".

We know that our bill of rights articulates what amount to fundamental rights. So, if it is not articulated specifically there, how do we identify one? using what criteria/test?

The Supreme Court has said that a "fundamental right" amounts to a right that is deeply rooted in our nation's history and traditions. Sounds good. But then it has gone on to hold that the right to abortion is a fundamental right. State Supreme courts have adopted this kind of test for fundamental rights as well. The problem is, however, that they don't follow through and apply the test in a logical way.

This area of the law is a mess.

Before I answer the specific questions, I have to say that I do not buy the US Constitution's assertion that there are such things as inalienable rights, endowed by a creator. I have grave doubts about the existence of a Creator, so I cannot see how rights are anything other than human constructs. Very necessary human constructs, but constructs all the same.

1) If the constitution enumerates what powers the government has (ie, what areas they *can* legislate), does something have to be a "right" in order for us to tell the government they can't regulate it?

Yes and no. In a democracy, if enough people think they have a particular right, and that right is threatened by the actions of government, they can protest until the threat passes, or vote that government out and vote someone else in who will restore or protect that right. In a democracy, if the electorate allows that right to be curtailed for some notional higher purpose, or if they just allow it to be curtailed through apathy or ignorance, then it couldn't have been imprtant enough to them for it to be properly considered a right.

And if the same thing happens in a non-democratic system, the people can still revolt if they care about the issue passionately enough. (And if they don't they won't.) This may take many years, even decades or centuries, but if they want it to happen, it will eventually.

As far as I can see, these are the only functional ways "we" can teel the government what to do. Even in the USA, it isn't the people who decide on the constitutionality of a particular govenment action - it is the Supreme Court, and they don't generally factor public support or protest into their decision making (unless they want to get called "activist", that is).

2) Conversely, would telling the government they weren't given the power to legislate that area indirectly create a "right"? (or implied right)
An implied right, certainly.

This is pretty much the traditional British way. Until the adoption of the EU charter of human rights, as a British citizen, (I think) the only positively-defined rights I had were to be present at my own trial and to vote. All my other rights were basically defined as "anything else that isn't illegal". Consequently an Act of Parliament could take away something I had considered to be a "right" as soon as it got Royal Assent.
Thankfully, the Human Rights Act now means that all other legislation has to comply with its own definitions of "rights", so I have rather more protection than I used to have.

No. All we have to do to tell the government they can't regulate something is prove that they have no Constitutional authority in regulating it. If the Constitution does not give the Federal Government the power to do something, they can't do it. If we're talking about state governments, then we would have to differ to the state Constitution.


Not necessarily. Just because the government isn't given the power to regulate something doesn't make it a natural right, but it does however make it a legal "right". So yes and no.

CP