Locating our Language - Rights (Part One)

There is a third aspect to our language to be considered.  Recall in the discussion of contracts, the idea of social contract.  That is, we give up our rights, or some of them, for the purpose of allowing a central authority control to enable us to form a society.  A couple of thoughts are important here.  First, we do not necessarily give up rights qua rights so much as grant that central authority the power to arbitrate or mediate exercise of whatever rights we deem necessary.  Second, this concession is based on an underlying assumption that we are individuals first and foremost with the ability to exercise our free wills as we deem appropriate as opposed to obtaining our identities from our membership in community.

Let’s start with the role of that central authority, which of course for us here in the US is our democratic system.  The government does not determine what rights are valid, rather the government acts as the final authority on the limits of their exercise, at least that is how it works for a democratic system.  We the people, if you will, have determined in advance what rights we deem essential for a free society via our founding documents - the Declaration of Independence, the Constitution, and amendments to that Constitution (the Bill of Rights).  As well, for better or worse, the Supreme Court, nationally, and the local state courts have been given the power to settle disputes, which are really all about rights and the exercise of those rights.  From time to time the dispute will involve more directly the founding Constitutional rights requiring the Courts to interpret and apply its interpretation to the specific situation - often times situations that are not directly addressed within those founding documents (now a tangent for a moment but doesn’t that sound familiar to us believers?  Maybe should look at that question some day).  The Supreme Court put together a little booklet, The Court and Constitutional Interpretation, that says “As the final arbiter of the law, the [Supreme] Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”  The Court understands this to mean “this power of judicial review has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a living Constitution whose broad provisions are continually applied to complicated new situations.”

So my point here, sorry if it seems like a long journey to get to the point, is that the government is not the entity that defines the rights we seek to claim.  At the bottom line that power was formed from the will of the people - remember the line, life, liberty and the pursuit of happiness written by Thomas Jefferson in the Declaration of Independence (as well this is a slight revision to a phrase from the writings of a philosopher named John Locke - life, liberty and estate - in Two Treatises of Government). Now here in America that refining authority is not direct.  Rather we appoint persons to speak for us - our politicians - who are supposed to speak the will of the people who elected them.  Now I get the idea we may disagree with them on many many topics but at the end of the day that is the system we have, that is the system in which we are embedded, and we do have the ability to exercise our voices at the ballot boxes.

As I am a lawyer sometimes I read Court opinions.  Here is a great one, from Justice Stephen Johnson Fields, in the decision of BUTCHERS' UNION CO. V. CRESCENT CITY CO., 111 U.S. 746 (1884).  “As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all action, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the declaration of independence, that new evangel of liberty to the people: 'We hold these truths to be self-evident'-that is, so plain that their truth is recognized upon their mere statement-'that all men are endowed'-not by edicts of emperors, or decrees of parliament, or acts of congress, but 'by their Creator with certain inalienable rights.'-that is, rights which cannot be bartered away, or given away, or taken away, except in punishment of crime-'and that among these are life, liberty, and the pursuit of happiness; and to secure these'-not grant them, but secure them- 'governments are instituted among men, deriving their just powers from the consent of the governed.' Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment. The common business and callings of life, the ordinary trades and pursuits, which are innocuous in themselves, and have been followed in all communities from time immemorial, must therefore be free in this country to all alike upon the same conditions. The right to pursue them, without let or hinderance, except that which is applied to all persons of the same age, sex, and condition, is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright. It has been well said that 'the property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.”

Fields captures this essence well I think - okay maybe a little wordy at times but remember that this was written in 1884.  But notice a couple of things:  first, the role of government is to secure these rights and not grant them, second, that freedom has been defined within an economic context, and third, that despite the language of shared “principles of morality” what he is really saying is not so much that we have common moral values but that we have a great social contract that there are certain rights we all possess and are generally free to exercise - that of life, liberty and the pursuit of happiness - with the government present simply to resolve conflicting desires to exercise those rights.