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View Full Version : What is a Right? - By Judge Andrew Napolitano


GrizzlyGuy
12-21-2009, 8:49 AM
Excerpt from the article (http://www.campaignforliberty.com/article.php?view=455):

What is a right? A right is a gift from God that extends from our humanity. Thinkers from St. Thomas Aquinas, to Thomas Jefferson, to the Rev. Dr. Martin Luther King, Jr., to Pope John Paul II have all argued that our rights are a natural part of our humanity. We own our bodies, thus we own the gifts that emanate from our bodies. So, our right to life, our right to develop our personalities, our right to think as we wish, to say what we think, to publish what we say, our right to worship or not worship, our right to travel, to defend ourselves, to use our own property as we see fit, our right to due process -- fairness -- from the government, and our right to be left alone, are all rights that stem from our humanity. These are natural rights that we are born with. The government doesn't give them to us and the government doesn't pay for them and the government can't take them away, unless a jury finds that we have violated someone else's rights.

Maybe this really belongs over in OT, but since we get into 'what is a right vs. a privilege' a lot in this forum, I thought I'd post it here. Mods please move or delete as appropriate.

mtptwo
12-21-2009, 8:55 AM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.

GrizzlyGuy
12-21-2009, 9:13 AM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.

That is an interesting opinion. May I infer that you disagree with this from the American Declaration of Independence (http://www.ushistory.org/declaration/document/index.htm)?:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

And this from the UN's Universal Declaration of Human Rights (http://www.un.org/en/documents/udhr/)?:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge

Perhaps you would be interested in reading this brief history of the Bill of Rights from the ACLU (http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/bill-rights-brief-history).

edwardm
12-21-2009, 9:28 AM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.


Prior to the advent of 'society' and its attendant social constructs, did or did not human beings enjoy the innate right of <insert natural right here>? For example, prior to organized social structures, did human beings enjoy the right of self-preservation by mere nature of their existence?

To answer in the affirmative is to discredit the "social construct" idea. To answer in the negative is to engage in the absurd.

As to the social contract theory, the mere existence of a right is not denied merely by agreement to surrender exercise of the right. Some would argue that natural rights may never actually be surrendered, but only taken by force. In this case, that force is in the form of societal constructs (penal and civil systems). However, this does not equate a natural right with socially constructed 'right'. This only illustrates that such rights are taken from a person only by force.

mtptwo
12-21-2009, 10:07 AM
This only illustrates that such rights are taken from a person only by force.


Or better yet, we allow those rights to be removed from us by society so that we can be members of said society. In fact we love in removing rights from people.

One might think that god given rights only exist out side of society, because one thing required for a society to sustain its self is for that society to limit the rights of its members.

mtptwo
12-21-2009, 10:27 AM
That is an interesting opinion. May I infer that you disagree with this from the American Declaration of Independence (http://www.ushistory.org/declaration/document/index.htm)?:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...



UN aside...the Declaration of Independence isn't a governing document and has no weight outside of its original intent of declaring independence. One of the first documents with actual weight in the government is the Constitution and the Bill of Rights. No where in the above mentioned docs does inalienable rights come into play. The BoRs expressly states that certain rights cannot be denied by the government, but it doesn't state that they are natural or inalienable by any means and leaves the powers of the government to limit them by law.

Keep in mind, I am all for the concept of rights, but thinking they are derived from some higher power or considered natural is folly. Rights have always been defined and denied by our brothers, and the only way to stop denying is to define the right through the mechanism of society and give society the power to enforce it. Save of course, that society can be used to deny rights as well....cough..prop 8..cough...cough...

Bugei
12-21-2009, 10:46 AM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.

The point of the Second Amendment is that they can try to deny your rights, but you have the right to the tools you need to stop them. The "god-given right" thing is our way of saying that any law to the contrary needn't be respected.

Window_Seat
12-21-2009, 11:17 AM
The point of the Second Amendment is that they can try to deny your rights, but you have the right to the tools you need to stop them. The "god-given right" thing is our way of saying that any law to the contrary needn't be respected.

The trouble with this right is that the right to use the tool you need to stop them has already been denied. A govt official coming to your door to demand all your FAs in a total confiscation effort will be protected in some way, and taking them out will land you either in a grave or in prison forever. What did the Framers say about big tyrannic government coming to your door? The right to keep them at bay is written by the Framers, but it is denied by this current govt, and now you must use all the resources considered as goods to get back your rights. It to me is "job security".

Thesues' right has been unconstitutionally denied. He must now use all resource goods he can to regain his constitutional rights which should never have been denied in the first place. I realize I'm PTTC, but sometimes we have to remind ourselves what we are up against. Our current govt is trying to get you to believe that they "support" the 2A and "respect duck hunting"... It's not about duck hunting, it's about keeping big tyrannical govt in check so we don't go the way of the USSR.

Erik.

GrizzlyGuy
12-21-2009, 11:26 AM
UN aside...the Declaration of Independence isn't a governing document and has no weight outside of its original intent of declaring independence. One of the first documents with actual weight in the government is the Constitution and the Bill of Rights. No where in the above mentioned docs does inalienable rights come into play. The BoRs expressly states that certain rights cannot be denied by the government, but it doesn't state that they are natural or inalienable by any means and leaves the powers of the government to limit them by law.

The Declaration of Independence carries weight with SCOTUS. Just this summer in District Attorney's Office for Third Judicial Dist. v. Osborne (http://www.supremecourtus.gov/opinions/08pdf/08-6.pdf), Justice Stevens wrote this in his dissent:

The liberty protected by the Due Process Clause is not a creation of the Bill of Rights. Indeed, our Nation has long recognized that the liberty safeguarded by the Constitution has far deeper roots. See Declaration of Independence (holding it self-evident that “all men are. . . endowed by their Creator with certain unalienable Rights,” among which are “Life, Liberty, and the pursuit of Happiness”)


Keep in mind, I am all for the concept of rights, but thinking they are derived from some higher power or considered natural is folly. Rights have always been defined and denied by our brothers, and the only way to stop denying is to define the right through the mechanism of society and give society the power to enforce it. Save of course, that society can be used to deny rights as well....cough..prop 8..cough...cough...

Back in Zorach v. Clausen (http://supreme.justia.com/us/343/306/case.html), SCOTUS said "We are a religious people whose institutions presuppose a Supreme Being". Folly or not, I think they are onboard with with what is stated in the Declaration of Independence regarding the sources of our rights.

You mentioned prop 8, and it is an example of what can happen when Progressives write the state constitution (http://en.wikipedia.org/wiki/California_Constitution):

The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which was ratified on May 7, 1879. The result of Progressive mistrust of elected officials, the 1879 constitution is the third longest in the world (behind those of Alabama and India), and has been described as "the perfect example of what a constitution ought not to be".

Progressives allowed our constitution to be amended via a simple majority vote of the electorate. The republic effectively became a democracy where minorities can suffer from tyranny of the majority, as in prop 8. But even the Progressives believed in inalienable rights. From the CA state constitution (http://www.leginfo.ca.gov/.const/.article_1):

ARTICLE 1 DECLARATION OF RIGHTS

SECTION 1. All people are by nature free and independent and have
inalienable rights. Among these are enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.

It must be tough being a Progressive and having to live with all the contradictions in their belief system and their sordid history with regard to minority rights (http://www.calguns.net/calgunforum/showthread.php?p=3519546#post3519546). :rolleyes:

PatriotnMore
12-21-2009, 11:38 AM
The rights God given are always there, they can only be taken away if we surrender them, or allow them to be taken from us.
This is the problem when you allow other men and or society to subjugate your rights through force, or threat of force to comply.

For example, you are alone, all your rights are full and in play. Soon, others arrive and they decide they have/want a standard by which they think you should live, and conspire to enforce it, physically if needed. Your only choices are to negotiate, capitulate, move away, or fight.

The right(s) are still there, what you do with them, which you give up, negotiate away, or fight for is the question?

USAFTS
12-21-2009, 12:10 PM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.

Part of the problem, is that we ALLOW other members of society to have too much control of our NATURAL rights. Regardless of your belief or lack thereof in God, the concept of "God given" speaks to a right that IS, in fact, natural. We were all born with a hand full of rights that are simply inherent to existing as a living, self-aware human being. We, as a society have slowly allowed government to assume more and more control of that which is ours and only ours. The "survival" drive is the most powerful and NATURAL drive, shared by ALL animals and Humans. Freedom, food, shelter, physical survival through the defense of self and social interaction. You were BORN with these NATURAL drives. (Involuntary Natural Motivators). Allowing the government to assume control of these rights is as logical as giving them permission to control when and how often you are allowed to blink.

Reasonable LAWS are a necessary social construct designed to guide society through civil, organized and relatively fair co-existance while avoiding anarchy. These laws are supposed to regulate our behavior....NOT our natural rights...but the government continues to assume more and more control over them....and we just keep letting it happen.

CAL.BAR
12-21-2009, 2:27 PM
A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.

absolutely correct! +1 for accuracy!

SimpleCountryActuary
12-21-2009, 8:32 PM
Liberties are as important as rights. Big Mouthed Small Minded Morons have the right to say whatever is being shown on the teleprompter, but I am at liberty to stick my fingers in my ears and sing La-La's or change the channel to the Women's Mud Wrestling Channel.

(A hint to Time Warner Cable is contained in above rant.)

M. Sage
12-21-2009, 8:47 PM
absolutely correct! +1 for accuracy!

Even with the sound refutations, you say that this is absolutely correct and accurate?

cbn620
12-21-2009, 8:51 PM
Only problem with that is I hate to see the "G" word thrown in when describing rights without a caveat that a few/plenty/many (depending on who you ask) of our founding fathers did not believe in "God" and thus believed our rights come from pure nature. I feel like invoking the Judeo-Christian god is unfair to people of different religious perspectives, and the founders asserted this much the Enlightenment thinkers they were.

It's a minor flaw in my opinion, but I have to mention it.

jdberger
12-21-2009, 9:00 PM
UN aside...the Declaration of Independence isn't a governing document and has no weight outside of its original intent of declaring independence. One of the first documents with actual weight in the government is the Constitution and the Bill of Rights. No where in the above mentioned docs does inalienable rights come into play. The BoRs expressly states that certain rights cannot be denied by the government, but it doesn't state that they are natural or inalienable by any means and leaves the powers of the government to limit them by law.

Keep in mind, I am all for the concept of rights, but thinking they are derived from some higher power or considered natural is folly. Rights have always been defined and denied by our brothers, and the only way to stop denying is to define the right through the mechanism of society and give society the power to enforce it. Save of course, that society can be used to deny rights as well....cough..prop 8..cough...cough...

Wow. This is completely incorrect.

If you'd take a minute to look at some of the literature and philosophy that predates the Declaration and the Constitution, you'd realize that rights can't be granted. They pre-exist society and community.

Now society can decide to deny certain people rights due to their inability to play nice with others. This is "civil death". Perhaps that's what you're alluding to when you state that "rights" are a social construct?

Meplat
12-21-2009, 9:44 PM
A govt official coming to your door to demand all your FAs in a total confiscation effort will be protected in some way, and taking them out will land you either in a grave or in prison forever.

And your point is?

A lot of us are getting old and do not care to stick around for wheel chairs and depends! Why not act while we can still move shoot and communicate?

Meplat
12-21-2009, 9:50 PM
The decoloration does not mention God.

Only problem with that is I hate to see the "G" word thrown in when describing rights without a caveat that a few/plenty/many (depending on who you ask) of our founding fathers did not believe in "God" and thus believed our rights come from pure nature. I feel like invoking the Judeo-Christian god is unfair to people of different religious perspectives, and the founders asserted this much the Enlightenment thinkers they were.

It's a minor flaw in my opinion, but I have to mention it.

ChrisTKHarris
12-21-2009, 9:52 PM
I heart the Judge.

GrizzlyGuy
12-22-2009, 9:46 AM
Only problem with that is I hate to see the "G" word thrown in when describing rights without a caveat that a few/plenty/many (depending on who you ask) of our founding fathers did not believe in "God" and thus believed our rights come from pure nature. I feel like invoking the Judeo-Christian god is unfair to people of different religious perspectives, and the founders asserted this much the Enlightenment thinkers they were.

It's a minor flaw in my opinion, but I have to mention it.

I agree that many of the founding fathers were deists, and that may be why they used the the term "Creator" instead of "God" in the American Declaration of Independence (http://www.ushistory.org/declaration/document/index.htm): "endowed by their Creator with certain unalienable Rights". People are free to believe that the Creator was a God (from any religion), deity, natural force, space alien or something else. The Declaration of Independence thereby accommodated any and all belief systems.

The concept of natural rights can actually be found in all the major religions and predates the Enlightenment. Note that when the UN adopted the UN's Universal Declaration of Human Rights (http://www.un.org/en/documents/udhr/) in 1948, which uses the phrase "inalienable rights of all members of the human family", no UN members voted against it. Among the approving nations that did not have a predominantly Judeo-Christian heritage were Afghanistan, Egypt, Iran, Iraq, Pakistan, Syria, Turkey, Burma, and China. This is a relatively recent confirmation that a belief in natural rights spans across a broad spectrum of societies. All of the UN nations voting in favor recognized that natural rights are inherent, need not be granted by any man woman or society, and cannot be taken away by any man, woman or society.

Note that 8 members of the UN abstained from voting on the adoption of the UN's Universal Declaration of Human Rights (http://www.un.org/en/documents/udhr/). Those included the USSR and all the soviet-bloc states. This makes sense, since Karl Marx rejected natural rights as bourgeois inventions. mtptwo's statement happens to be a succinct summary of Marx's beliefs regarding rights:

A right is what the other members of society allow you to have. The notion of "god given" or "natural rights" is nothing more than a social construct to highlight the importance of some rights, but still, society has the ability to deny those as well.