Rights

What, by definition, cannot be one?

Many things distinguish the human being from lower species: movable thumbs, the ability to develop language, the power of reason, the ability to mark time, a yearning for transcendent meaning.

Early on, Western thinkers started to look at traits exclusively associated with social life among humans, such as virtue, justice, duty and freedom. At some point, the concept of rights was introduced into the discussion.

Aristotle, Aquinas and Kant, in succession, moved us closer to a fleshing out of our innate inkling that morality dictated that the individual’s sovereignty and freedom of movement and choice could not be infringed upon. Locke advanced our confirmation of this intuition even further with his assertion that certain aspects of human life, most notably owning property, were built into our very nature, and that law must prohibit their violation.

The founding documents of the United States, of course, clarified this further. So did France’s Declaration of the Rights of Man, although when Robespierre took the reins of the revolution the Declaration inspired, his bloodthirsty zeal set the rights specified in its seventeen articles on the back burner for many years.

I would posit that the evolution of this discussion has been a process of coming to understand that we didn’t invent these rights, that there are really only a few of them, they’ve already been discovered, and we won’t be finding any new ones.

The three Supreme Court decisions over the last couple of days, Biden v. Nebraska, Department of Education v. Brown, Students for Fair Admission v. President and Fellows of Harvard College, Students for Fair Admission v. University of North Carolina, and 303 Creative v. Elenis, having to do with student loan forgiveness, affirmative action, and wedding services for same-sex couples, respectively, give us an excellent opportunity to revisit the discussion of rights with some concrete examples.

The student loan forgiveness cases, while decided on the basis of executive authority being insufficient for implementing such a policy (that’s Congress’s purview), are also undeniably about property rights. Wealth redistribution - in this case, shifting the obligation for money owed to lenders from student borrowers to taxpayers - amounts to, as Walter Williams used to say, taking that which belongs to Citizen A to address the particular situation of Citizen B. And there’s nothing voluntary about it. The state demands that Citizen A cough up the dough.

Conversely, it’s hard to see how anybody could argue that student borrowers have some kind of right to just walk away from contractual obligations they freely entered into. Rights and choices are inextricably bound.

I found Justice Jackson’s dissent in the affirmative action cases, as I discussed yesterday over at Late in the Day, telling:

the whole notion of law is based on fairness. A person ought to be able to assume that he or she will have his or her case heard by the entity in our society with a monopoly on the legitimate use of force  - that is, government  - in an impartial manner. 

That means that the law must disregard questions of who had what kind of leg up at birth or during one's upbringing. The law must assume each one of us is a creature of agency, capable of exercising the faculties that differentiate human beings from lower animals when making choices. 

This is what Jackson's colleague Clarence Thomas gets at in his opinion which concurs with the majority's:

In his concurring opinion, Thomas called out Jackson for her focus on "the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race."

"As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today," Thomas wrote.

"I strongly disagree," Thomas said.

Jackson thinks, in a subsequent footnote, she's setting Thomas straight:

"The takeaway is that those who demand that no one think about race [a classic pink-elephant paradox] refuse to see, much less solve for, the elephant in the room—the race-linked disparities that continue to impede achievement of our great Nation's full potential," Jackson's footnote reads.

In her own dissent of the UNC case, Jackson pointed to a number of statistics that show the wealth and health disparities between white and Black Americans, arguing, "Today's gaps exist because that freedom was denied far longer than it was ever afforded." Jackson warned that the majority opinion "will delay the day that every American has an equal opportunity to thrive, regardless of race."

See what she does there? She winds up using collectivist, demographics-based phenomena to try to justify the law performing tweaks on the bedrock notion of individuals standing before the law as such. 

She’s not even trying to frame the issue in terms of rights. All she’s interested in is rectification of broad social wrongs and inferring, without any real substantiation, that certain present disparities can be laid at the feet of those wrongs.

Okay, then we get to the latest SCOTUS case having to do with homosexuality.

I sort of see Josh Barro’s point in his latest post at Very Serious about how the web designer was bringing this case to head off at the pass any potential trouble:

Designer Lorie Smith’s injury was theoretical — she had not yet had the opportunity to reject a commission for a same-sex marriage website, as she has said she would do if asked — and it seems likely that even the feeler she reported receiving about possible business along these lines was fake. That said, even if this case wasn’t ripe, another one would have reached the court sooner or later and presented the justices with very similar questions about when a non-discrimination rule constitutes an unconstitutional compulsion to speak. Tossing this case would only have delayed the inevitable.

But the principles at stake are the same as those in Arlene’s Flowers v. State of Washington and Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Let’s start into this one from the public-accommodation angle. I’d submit that Christopher Caldwell, fully accounting for his weird drift in recent years, was onto something in his book The Age of Entitlement: America Since the Sixties when he said that we knowingly and willingly gave up a chunk of our Constitutional right to free association in the Civil Rights Act of 1964. We collectively decided that it was supremely uncool for the desk clerk at a Holiday Inn to tell a black family intending to book a room that they’d have to look elsewhere due to their skin color.

Okay, now, are the above-mentioned homosexuality-driven cases on the same plane of consideration?

I’d submit that they are not.

Even if we’re going to accept sexual orientation as a given - I’m being theoretical here - there is still the matter of agency, of choice. In each of those cases, two people of the same sex decided they wanted the trappings of a ceremony - a sacrament in the eyes of religious humankind - that had, for the thousands of years of human history until a decade and a half ago at the outside, been reserved for uniting males and females. Um, no one else on the planet is obligated to buy into what they’ve decided to proceed with.

That’s a whole different bag from skin pigmentation.

I’d just conclude with this: When the term “rights” gets introduced into news stories about matters such as Supreme Court decisions, put on your thinking cap. Are any rights really being violated, and, if so, whose?