CHAPTER 11

NATURAL RIGHTS AND CONSTITUTIONAL RIGHTS

The conceptual rights that I have discussed in the preceding chapters are best characterized simply as "natural rights." These are the individual rights a person is supposed to have by being human, and that government should protect, either through law or sometimes by refraining from the use of law!

The Bill of Rights in the United States Constitution, as well as similar provisions in state constitutions and many accompanying federal and legal statutes should, in theory, provide the legal basis for protecting these rights. The incorporation doctrine, based on the 14^th Amendment, which applies many provisions of the Bill of Rights to the states as well as federal government, becomes important because in our country, compared to most others, states have such enormous police powers (such as the prerogative to administer capital punishment).

Many "natural rights" (particularly "social rights") are not specifically enumerated by the Bill of Rights. Some scholars believe that the "penumbra clause" (the 9th Amendment) implies that all other "natural" rights not specifically spelled out still are automatically protected. But this requires that a court recognize a particular right as "fundamental" in case law. In Bowers v. Hardwick (1986), the Supreme Court was unwilling to do this for consensual (adult) same-sex liaisons. [However, when the Supreme Court articulates the notion that some kind of conduct subsumes a "fundamental right," it usually resorts to either the Fourteenth Amendment or one of the first eight amendments, and not specifically the Ninth Amendment.] The Court suggested that a right could not be recognized as fundamental unless it was recognized by tradition and seemed related to mechanisms (the nuclear family) that make society function as a whole. The Court referred to "ordered liberty" as comprising these traditional rights. (One could debate whether participation in a social institution, marriage, that in practice confers privileges at the expense of others could be construed as a "fundamental right.") A "fundamental right" may be viewed as a right that government may not abrogate without violating the "substantive due process" doctrine of the 5^th and 14^th amendments. (Substantive due process, as opposed to procedural due process, insists that a law or government policy be inherently "fair" and not single people out for unreasonable public disdain; the notion of substantive due process was an important part for the 1954 Brown v. Board of Education decision on segregated public schools.) Once established, a "fundamental right" may be compromised only when the state can show a "compelling interest" in doing so (this is the "strict scrutiny" standard). Conversely, a right which may be abridged only under strict scrutiny is viewed legally as a fundamental right. One way of looking at the material in this book is to say that the public may want to examine just how compelling a case the state should have before ever abridging any rights. Conceivably, for some rights, even a "compelling interest" compromise - a triage - might not be allowed.

Any plan to strengthen the Bill of Rights by constitutional amendment needs confidence in the authority of the courts to render the ultimate interpretations on constitutional law. Some conservatives, such as Robert Bork, want to return authority to legislatures or even referendums to overturn "court-made law" in constitutional matters. Allowance for such legislative or popular reversal would undermine judicial review as established by Marbury v. Madison. Of course, legislatures can overrule courts on purely statutory matters by passing new laws. There is some controversy over how separation of powers applies to the states.

The following table shows a correspondence or relation between the specific provisions in the Bill of Rights and the "natural rights" as I have organized and presented them.

A few of our affirmative procedural rights are actually to be found in the body of the original Constitution (as written before the Bill of Rights). These include the right of habeas corpus, and prohibitions on bills of attainder and on ex post facto laws.

The 10^th Amendment, a counterpart to the 9^th, suggests that unenumerated powers still belong to the states. Therefore, federal statutes (as opposed to constitutional amendments) which limit the powers of states to restrict "private" behaviors could run into problems with Congress's exceeding its designated and explicit powers.

The following appendix presents the constitutional amendment proposals from Do Ask, Do Tell. Some libertarians will say that they do not go far enough to stop government social engineering through tax policy! One could propose that some of these measures should be statutes, not amendments.

Some discussion of the principles of federalism seems necessary. Federalism, after all, allows states (according to the unenumerated powers doctrine) to try different solutions to ambiguous moral issues. An obvious example is abortion. A more subtle example is the idea that states have different legal limits of blood alcohol when driving, where the "moral" problem is that people don't take the idea of recklessly endangering others with the increased probability of an accident as a serious mark on their character. Federalism is undermined by the practice of threatening to withdraw federal funds from states which do not pass certain laws "voluntarily" (such as with a minimum drinking age). A problem in practice is that states have as much power over individuals as do the fibbies! Should people have to take these issues into account when deciding where to live and work?

There are two questions we should keep in mind as we debate all these proposals:

1. Do individual rights depend upon an individual's meeting affirmative social obligations?
2. What is the proper role of the state in resolving the question listed above?