Inconceivable Rights: I Do Not Think That Word Means (Just) What You Think It Means

The infection of postmodernism apparently goes way back.

|The Volokh Conspiracy |

A reader writes, in response to my post on the different meanings of the word "right":

A right is an inherent moral claim the exercise of which does not require anything of another party. It seems that the definitions currently at play are infected with postmodernism.

Here's the problem: Whatever the reader might want the word "right" to be limited to, the word as it is actually used in American legal and political discourse has long extended much more broadly.

[1.] For instance, the word has extended beyond inherent moral rights to include rights that everyone understood as political decisions within a particular political system or a political tradition. Consider, for instance, the Articles of Confederation provision,

The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war.

There is no reason to think that anyone saw this as involving an inherent moral claim.

Were the drafters saying, for instance, that it's immoral for states to determine peace and war? No. Were they saying that it would be immoral for the power to be lodged elsewhere, for instance with the President signing and the Senate ratifying a peace treaty (the system Americans implemented a dozen years later in the U.S. Constitution)? No. They were just setting up a particular political settlement of a particular political decisionmaking authority.

Or consider the Virginia Declaration of Rights of 1776, which provided,

That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty.

No-one viewed the right as an "inherent moral claim"; indeed, when Madison proposed the federal Bill of Rights, he recognized that the right to trial by jury wasn't a "natural right," but was a "positive right[], which may seem to result from the nature of the compact" (referring to the decision of "the people in forming and establishing a plan of government"). Certainly the requirement that there be 12 jurors couldn't be an inherent moral assertion. Rather, the right was a political decision established by English legal traditions.

[2.] Likewise, the word has long extended to include claims on other parties. For instance, the Pennsylvania Declaration of Rights of 1776 provided,

That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto.

A right to protection is a right that does require something of another party (here, the government, or at least the rest of society). Yet it was easy to label it as right (though here, I suspect, one that was being recognized as a solemn political obligation but not a judicially enforceable one). Similarly, from the same document,

But if any man is called into public service; to the prejudice of his private affairs, he has a right to a reasonable compensation.

That is a right to be paid by taxpayers (though there too the expectation was that the right would be secured by political decisions, rather than by judicial ones).

[3.] And we can likewise see "right" used to include judicially enforceable demands on other parties—and demands to get someone to do things, rather than just demands that others leave you alone. The Contracts Clause, for instance, was seen as securing important private rights, but these were rights to get the government to enforce your contracts. Thus, from Chief Justice Marshall in the Darmouth College case (1819) agreed with the proposition that "state legislatures were forbidden 'to pass any law impairing the obligation of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself." Likewise, later in the opinion Marshall writes about "the rights possessed by the trustees"; yet rights of the trustees of an institution are, practically speaking, all about being able to require various actions or various other parties.

Or if you want to go back earlier, try Justice Chase's opinion in Calder v. Bull (1798): "By the existing law of Connecticut a right to recover certain property had vested in Calder and wife (the appellants) in consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law, and the new hearing thereof, and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees." A judicially vindicated right to recover property is necessarily a right to call on the aid of others in this recovery. And the list could go on.

[* * *]

As you might gather, I don't think any of this can be laid at the door of "postmodernism." Rather, it simply reflects the fact that "right" isn't a term that you or I can simply redefine at will in a particular narrowly limited way. It is a word of the English language, which has the meaning long understood by the community of English users—or, in legal contexts, the meaning long understood by users of legal English, though in this instance there seems to be little or no difference between lay and professional usage.

It generally refers to a wide range of claims, some moral, some legal, that can be asserted on behalf of some people or institutions against others. It can refer to constitutional rights, statutory rights, common-law rights, or others. It can refer to entitlements to be free of private action or government action. It can refer to entitlements to positive action by private entities or governmental entities. And it's not "postmodernism" to treat an English word as referring to what English speakers have long used the word to actually mean, rather than ceding authority over it to some self-appointed redefiner.

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  1. Can we at least all agree that the common usage of the word “right” can mean any of the following (without regard to whether we like the common usage):

    1) An individual moral right that does not derive from any external source.
    2) An individual right conferred by the government that requires a super majority to alter.
    3) An individual right conferred by the government through majority rule.
    4) A structural right conferred by the government to divvy up governing power.

    So, please stop spilling all this digital ink over semantics and I mean it. Anybody want a peanut?

    1. How about, “Not left?”

      While you might find this tiresome, it is necessary, given the amount of people who have commented using their own definitions of “right” in order to win some point that they sure of. Because of course they are.

      It’s as tiresome as the Grandpa ALL-CAPS FORWARD yelling about how something is a privilege, not a right. Ahem.

    2. Josh R: If only we could all have agreed on this, my post wouldn’t have been necessary.

  2. Definitions changing depending on context and audience is kinda postmodern.

    And I say this as someone who used to be as modernist a young physicist as you can imagine.

    1. When did human language not have definitions that varied depending on context?

      1. Unga, lunga bunga, mork tu la. *beats chest*

        1. See, there “lunga” doesn’t mean quite the same thing as in “Bunga mork mork lunga la. *Scratches back*”

      2. Always. But discussing that is a postmodernist notion.

        So meta.

        1. I’m So Meta Even This Acronym

  3. Professor Volokh,

    You’ve spent a lot of your time, spread over several posts, refuting a definition of “Rights” so narrow I would think it silly, and asserting positions I would think so obvious as not to need the extensive citations you are bringing to bear. Why? Why have you spent so much time on this, and why does it irk you so?

    I think your discomfort started with the criticisms of your amicus brief in the union case. And I do my think you quite fully explained yourself. An libertarian advocate, a lawyer for a libertarian think tank filing an amicus brief, could very easily have relied on precedent, and there was no need to go out of ones way to argue the precedent was wrongly decided as you did. You wanted to assert that you are not an advocate, you are a professor, here to explain what the law is, and not merely what you think it should be. And this seems to have put you in a mood to think about the definitions of terms, making sure you are defining things in terms of usage, and not just do a Humpty Dumpty and say things mean whatever you say they mean.

    Is it possible that you have been doubting yourself lately? Is this burst of writing an effort to re-assert your claim to intellectual honesty and neutrality in your own mind, addressing not necessarily your critics concerns, but your own?

    I don’t mean this disparagingly or negatively. I simply wondering.

    1. I was supposed to click preview, not submit, and Reason has no way to edit. Sorry for the garbled post but you get the gist.

    2. Well, I have to admit that these posts aren’t my first effort to deal with this problem (the problem generally being “linguification“). I’ve blogged versions of this in years past, see, e.g., this post, among others. I repeated myself because I just get so annoyed when people try to argue by redefining words (and claiming that their only definitions are the right ones) rather than by focusing on the substance.

    3. As to the substance, the amicus brief that Will and I signed (see https://reason.com/assets/db/15163984497556.pdf) does a pretty good job dealing with the substantive arguments, I think. I might say a bit more about some of them in the days to come, but I’m quite happy with how the brief came out.

      Note, incidentally, that the brief wasn’t written by me as a lawyer for a libertarian think tank filing an amicus brief — if it had been, then I would have of course been duty-bound to represent the view of the hypothetical libertarian think tank. Rather, Will and I were the clients, and the brief expresses our views, not the views of any clients of ours.

      We think Abood was wrongly decided, even if it’s wrongly decided in the more libertarian direction, and is inconsistent with broader and sounder First Amendment principles. (I agree that there are some decisions that might be settled precedent and aren’t worth disturbing at this point — but this one has caused a great deal of needless complications precisely because of its erroneous analysis, and thus strikes me as the sort of precedent that is best jettisoned.) And when I was approached about the possibility of signing on to such a brief, I thought I ought to stand by this view, rather than just say that I like the result that Abood yields and that I should therefore keep quiet about my misgivings about its reasoning.

      1. When Abood first came down, I had no particular thoughts about it, but I have long come to believe that it was a mistake to go down that rabbit hole as the distinctions became finer- and finer-spun. A few years ago, I thought the Court might just recognize the mistake and get out of the business entirely. Now I fear that it will go all-in.

  4. In my experience a great deal of the disagreement over the “definition” of what constitutes a “right” really boils down to a debate over where the remedy to enforce the attendant obligation should be grounded: in law, morality or perhaps both.

  5. BTW I find Professor Volokh’s piece to be incredibly thought provoking.

    I only took a few courses in linguistics when I was an undergraduate long ago but one thing I (hope) I learned is how to tell from syntax the intellectual effort that lies behind the words that one writes.

    The syntax of this work suggests something that was not lightly thrown off.

  6. “Whatever the reader might want the word “right” to be limited to, the word as it is actually used in American legal and political discourse has long extended much more broadly.”

    …or to what I have long described as “The hallowing effect of time on error”. The sensible thing to do, if meaning 2 differs from meaning 1, is to create a word for meaning 2, and avoid future confusion. Using one word in conflicting ways eventually makes analyzing those ways an exercise in frustration.

    1. That’s an awful lot of work to solve a non-problem.

  7. “I just get so annoyed when people try to argue by redefining words.”

    Alas, arguing by definition will remain common and, in many situations, effective, even if it represents linguification. We’re language-bound critters. Indeed, people who insist that every word have a single transcendent meaning (evident to them), and who argue that if a word can be used in two ways, then we need two words (see post above), seem not to have lived in the real world, much.

    And for grandpa with his all-caps comments on rights and privileges: is it worth noting that in every European language I know about, ‘right’, ‘privilege’, and ‘freedom’ overlapped almost entirely in semantic content from the 12th through 18th centuries? As used in law, a “freedom” in early modern England could equally be called a right, and it emphatically meant an enforceable legal claim against others that the Crown was obliged to support… that is, a privilege. The entire political economy of ‘old Europe’ centered on the creation, disputation, and exercise of privilege, which is why the rhetorical seizure and redefinition of ‘rights’ during the Enlightenment, notably in the American founding documents, was in fact revolutionary. They kept the deep perception that ‘rights’ and ‘freedoms’ were overlapping concepts, but applied them in a novel way in debating justice, power, and law.

    So there, grandpa!

  8. The problem with all of this is that even though you are right that “right” can have this broader set of understood meanings, that doesn’t mean the distinctions between the different meanings aren’t important. If you recast somebody saying “government doesn’t have rights” as saying (as you would prefer) “government only has the rights the sovereign consenting people give it”, that’s still something important to think and talk about, yes? The difference between that kind of government right and an inalienable right to life is meaningful.

    So why all the ink trying to show the people saying this they’re wrong? Why not “I agree with you that, whether you call them rights or something else, the powers a government is allowed to exercise are different in kind from the rights humans have that governments cannot violate”

  9. I think Eugene is being a bit hard on the reader referred to at the top. His assertion was not precisely accurate and of course there are entitlements defined in constitutional documents, statutes and case law that are referred to as “rights”.

    But very often people also use the word “right’ to describe something that they believe, for political reasons, ought to be provided by government, in a content where there is currently no legal entitlement to that thing.

    For example, saying “everyone has a right to free healthcare” is a misuse of the word “right” to form an argument that sounds more compelling than saying “I think society would be improved if everyone had access to healthcare paid for by taxpayers”. There are an awful lot of these kind of statements out there.

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