GLOSSARY of Rights

Affirmative Right: A right specifically enumerated in the Constitution or in the Bill of Rights. Example: freedom of the press.

Another use of this term (from Spaeth) is, a right to do something or have something as granted by government. Seehttp://www.doaskdotell.com/content/bor2note.htm for details, or “legislated right” below. If “affirmative right” is confusing, we could invent the term “original right.”

Fundamental Right: A right which is either affirmative (in the first sense above) or which is clearly established in our nation's legal tradition and case law. The theoretical constitutional (U.S.) basis for a "fundamental right" is the substantive due process clause of the Fourteenth Amendment, which prohibits the federal government or any state from "unfairly" abridging a life, liberty, or property interest. Example: (opposite-sex) marriage, and (today, in most cases) the right to vote. The surest way to make a right "fundamental" would be to amend the Constitution to make it "affirmative." However, courts sometimes derive or extract new "fundamental rights" by from the text (with due regard to original intent and textualism) of existing rights as interpreted by current social culture. “Fundamental right” is a very important concept when the Supreme Court considers limiting the power of government to make a particular behavior illegal.

Exalted Right: A fundamental right which may require statutory protection if there is an apparent conflict with another fundamental right.

Legislated Right: A “right” that can only be exercised in practice when implemented by statute (usually by a state or local government). Examples are the right to vote, the right to a public education, and (possibly) the right to (opposite-sex) marriage. So scholars use the term “affirmative rights” for this.

Natural Right: A right which philosophically may be regarded to exist regardless of government.

Social Right: A "right" which makes a claim for entitlement from public funds and which must be established by statute. Example: social security income. Sometimes any "right" established by statute is construed as a social right. "Equal protection of the laws" is an affirmative and a fundamental right under the Fourteenth Amendment, and therefore so should be freedom from discrimination by government, but freedom from private entity discrimination (which must be balanced against the property rights of others) for some trait is really a legislated "social right."

Special Right: A "right" conferred by membership in a group and which can only be established in statute or regulation at the expense to someone else's otherwise fundamental rights. Example: affirmative action "preferences."

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