The Volokh Conspiracy

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

The infection of postmodernism apparently goes way back.


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.

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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.