Civil liberties versus human rights

This discussion is suffering from the use of fuzzy terms. It is not going to be productive unless or until some precision is adopted.

As I discuss in Social Contract and Constitutional Republics, the "rights" recognized in the U.S. Constitution form a hierarchy, deriving from four "constitutions":

1. The constitution of nature -- comprised of all those principles called the laws of nature, including the ways living beings, by their nature, tend to behave, usually as a survival strategy for their genes;


2. The constitution of society -- comprised of the natural rules according to which social groups tend to make decisions, before they establish formal structures of government. These include such principles as decision by conventions called by public notice and conducted according to customary rules of parliamentary procedure, perhaps combined with public referendum;


3. The constitution of the state -- the society in exclusive possession of a territory, which defines things like fair representation based on location.


4. The constitution of government -- probably written, as a fundamental law adopted as a legislative act under the constitution of the state.

Each of these constitutions is subject to the ones before it. So a statute is unconstitutional if it violates any of the above constitutions, of government, state, society, or nature. A provision of a written constitution of government is unconstitutional if if violates the natural, social, or state constitutions, and a practice under the social or state constitution is unconstitutional if it violates the natural constitution.

Different rights originate from different levels of constitution, as discussed above. Some of the main ones are:

Nature

Life

Limb (right not be be physically injured or tortured, or have one's health or comfort threatened)

Liberty

Acquisition, retention, and use of means to secure above rights (part of property right)

Right not to be required to do the impossible or scientifically irrational

Society

Property equity (right to reclaim property to which one has title, or the value thereof, beyond mere possession)

Due process (includes due notice and fair hearing, both substantive and procedural, and all rights associated with juries)

Common law trust rights

Public decision by convention called by public notice and conducted by established rules of procedure

State

Denizenship (right to remain on or return to one's domicile)

Fair representation of different parts of the territory

Government

Citizenship (privilege to vote and hold office, access to voting and fair counts)

Presumption of nonauthority

Means to remove misbehaving officials or suspend their actions, such as quo warranto and other prerogative writs

Getting reports on the activities and expenditures of officials

Compensation for taking of property (part of property right)

Thus, the property right is actually a bundle of rights, part of which are natural, and part social, in origin. It can also be governmental in origin, as with things like intellectual property, that is established by statute.

Distinction between rights, privileges, and immunities

The U.S. Constitution uses the term "right", but as Madison explained in some of his later writings, the natural, social, and state rights, as broken out above, are rights against the actions of government, for which the term "immunity" is more accurate. Under this understanding, every immunity is a restriction on the delegated powers of government, and every delegated power a restriction on immunities. Together, they partition the space of public action, with immunities and powers being complements of each other. The rights created under the Constitution are then more accurately referred to as "privileges". All of these are public rights, to distinguished from the private rights that arise from things like contracts. The use of the phrase "privileges and immunities", used in the 14th Amendment, is therefore to be understood as a more precise way to express the legal concepts involved.

The use of the term "right" for a sufficiency of scarce resources is a misuse of the term

The U.S. Constitution recognizes a right of "due process", which would seem to be sufficiency of a scarce resource, but it is not. If an official initiates an action against an individual, he is expending a scarce resource, but "due process" only obligates that the resources be allocated in a way that is fair to all parties. It does not, and cannot, obligate anyone to expend any resources at all. The law cannot command the impossible, and therefore it may not command sufficiency of a scarce resource, only the fair distribution of it.

The notion of "human rights" as it has emerged in the 20th century is essentially a socialistic aspiration of providing a sufficiency of scarce resources to everyone fairly. It contemplates entrenching entitlements into law, or even into constitutions, as though it were possible to go to court and have the judge order into existence enough for everybody. The deification of judges and courts might flatter the egos of some on the bench, but natural law (that first constitution) is not sympathetic, and most judges would deny that is within their jurisdiction or competence. The Universe is not organized for our comfort and convenience. We are lucky that it even permits a few of us to exist in misery, but less wallow in comfort, with a million entertainments.

So let's stop using the term "right" for something we can't get from a court of competent jurisdiction. By all means let us try to manage human affairs to maximize sustainable liberty, prosperity and justice, but as the current meltdown should inform us, what is sustainable may be far less than most of us would like to admit, at least for as many people as now live on the planet, living off the land and the sea.
--Jon

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Constitution Society, 2900 W. Anderson Lane C-200-322, Austin, Texas 78757
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