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November 05, 2011 09:17 PM UTC

What constitutes a clear civil right?

  • 45 Comments
  • by: DavidThi808

Throughout the history of civilization we have come up with “natural” civil rights that we believe are self-evident. But these rights are not self-evident. If they were, society would have been enshrining them in law 2,000 years ago.

When our country was founded it enshrined the civil rights that society at that time believed constituted all of the basic civil rights in the constitution and bill of rights.

At that time not only was slavery enshrined in the constitution but the concept of true equality between the races was held by only a small minority. Equal rights for women wasn’t even on the radar.

Over time we did finally enshrine equal rights based on race into the constitution. And while equal rights for women did not make it into the constitution, it is enshrined throughout our laws.

But this did not happen because these two rights were natural rights. They occurred because as a society, through a very contentious process, made a decision that these rights should be treated as basic civil rights.

So now let’s talk about the civil rights that are presently in the contentious phase, gay marriage and abortion. These are not natural civil rights just as all others were not natural. It is a decision we as a society are in the process of making.

In the case of gay marriage it’s coming very soon. After another 3 – 5 years of old people dying the electorate will have shifted enough. It sucks that we aren’t there yet, but society is clearly on the road to determining that this is a basic civil right.

The discussion on abortion was ended with Roe. Because the political sphere had no control, rather than discussion we have had the two sides shouting to their base with the right occasionally passing a law they know will be shot down. But until we do have this conversation and work through the contentious process, this is not a civil right, it’s a policy decided by 5 appointed justices.

A more interesting question is what will come next as a civil right. Some possibilities are healthcare, a proper diet, a quality education, a decent job, or something else.

But the key point to this I think is it’s not sufficient to say something is of course a civil right and needs to be treated that way. Many of us may be of the opinion that something should be a civil right. But it requires convincing a majority in society that it is that fundamental for it to become a civil right.

And that’s a good thing. Because there are some who want “rights” you would view as heinous enshrined as civil rights.  

What will be next to become a civil right

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45 thoughts on “What constitutes a clear civil right?”

  1. I think Healthcare probably…

    but if more people demanded healthy food as a right, our need for healthcare would diminish dramatically.

    Dr. William Sears, a noted pediatrician has said ” I think half the pediatricians in the country could just retire, if only we would start feeding our kids right.”

    There is a place in a healthy diet for treats and food of questionable nutritional value…a small place. The best food has one ingredient, as in…

    apple, potato, beet, and so.

    Industrial food is made for profit, not for good health. In, recent years however, the progress that has been made has been as a result of pressure from the consuming public. Not only in demanding increased  food safety but in increasingly calling for reinstatement of funding for food safety agencies. Underfunded and understaffed, they can’t do much except put out fires.

    Remember folks, food poisoning epidemics are your tax dollars not at work! Hooray for “the Free Market” !!

    1. left out a phrase; should read “reinstatement of funding for food safety agencies and a real and increasing focus on healthy eating habits and good food”.

      Once again, here is an example of the lunacy generated by corporate interest:

      I heard a story, NPR, I think, about some mothers that were forbidden from selling organic, homemade cookies at their kids’ school. However, it was OK for the children to buy Oreos or Doritos from a vending machine.

      The issue? The mothers couldn’t list and verify all the ingredients. So, even though the industrial ingredients are things like palm oil and sodium erythrobate (or some such)as long as you can verify, with labeling, they are in there through your govt. and corporate approved process, you’re cool.

  2. I don’t think it’l be any of the ones you listed.

    I think maybe, just maybe, health care could be it. But that’s a tough one, because it would be a totally new direction for the country to actually commit to taking care of each other with something other than military force.

    I would personally like to see a discussion about when rights “kick-in”. There are growing concerns and issue across the country related to age.

    Such as a 16 year old boy in Tennessee who was forced to go to a Christian “pray the gay away” camp for eight weeks where he was ridiculed and shamed every day for who he is. But because he is under 18, no one was allowed to stop this emotional and psychological abuse except his parents. But they were the one’s who sent him.

    Or there’s the fact that at 18 years of age, a person is considered mature enough to enlist in the military, see an R-rated movie, live on their own, serve on a jury, and even vote for President. But not, apparently, mature enough to drink alcohol. Any state could chose to lower the drinking age if they chose to, by the way, but by federal law, they would then lose 10% of their federal highway appropriation.

    There are also age limits for elected office. I personally oppose these limitations, as well as term-limits (with the possible exception of the office of the President). I think that if voters want to pick someone who is 24 to serve as their congressman and then choose to re-elect him until he’s 80, that’s their right and choice. And in my opinion, any law which restricts who a person is allowed to elect, or re-elect, is problematic.

    So my short answer is: Age. I think that will be the next big thing.

    This is a great topic, and I hope more people comment on it.

    1. This is an organization that I committed my support to shortly after it started.

      The Amethyst Initiative is a coalition of 136 college and university Presidents across the country who are asking for a discussion about whether drinking age laws are doing more harm than good.

      http://www.amethystinitiative.org

      In 1984 Congress passed the National Minimum Drinking Age Act, which imposed a penalty of 10% of a state’s federal highway appropriation on any state setting its drinking age lower than 21.

      Twenty-four years later, our experience as college and university presidents convinces us that…

      Twenty-one is not working

      A culture of dangerous, clandestine “binge-drinking”-often conducted off-campus-has developed.

      Alcohol education that mandates abstinence as the only legal option has not resulted in significant constructive behavioral change among our students.

      Adults under 21 are deemed capable of voting, signing contracts, serving on juries and enlisting in the military, but are told they are not mature enough to have a beer.

      By choosing to use fake IDs, students make ethical compromises that erode respect for the law.

      How many times must we relearn the lessons of prohibition?

      We call upon our elected officials:

      To support an informed and dispassionate public debate over the effects of the 21 year-old drinking age.

      To consider whether the 10% highway fund “incentive” encourages or inhibits that debate.

      To invite new ideas about the best ways to prepare young adults to make responsible decisions about alcohol.

      We pledge ourselves and our institutions to playing a vigorous, constructive role as these critical discussions unfold.

  3. I believe that a property owner will be given the right to discriminate against people based on race and/or religion and/or sexual orientation in accommodation and employment.

    1. So the history of civil rights has been to eliminate discrimination, and you think the next right will be to allow it?

      I don’t think I care for that trajectory.

      I was once denied a rental contract in North Carolina because I was not married to the woman standing next to me. The old woman that owned the house would not rent to anyone “living in sin”. This was in 1988.

        1. My FEAR is a right wing takeover of the HOuse and the Senate and the White House which would give them effective control of who sits on the Supreme Court.

          DT’s poll is not what “do you want to be the next right”, but rather “what do you think will be the next civil right?”

          My above statement about property rights comes directly from the mouth of Tennessee Senator Rand Paul.

          I

  4. The discussion on abortion was ended with Roe.

    Have you read anything I’ve posted since I joined this website?

    I think this is a great question, and I’ll post more substantively later.

      1. See here (words):

        GUTTMACHER INSTITUTE

        STATE POLICIES IN BRIEF As of

        NOVEMBER 1, 2011

        An Overview of Abortion Law

        http://www.guttmacher.org/stat…

        or here (graphics):

        Growing set of state abortion restrictions visualized

        http://www.remappingdebate.org…

        SCOTUS has disallowed spousal consent, and OKed parental involvement, mandatory waiting periods, pre-procedure counselling, and banning a procedure a woman’s doctor may determine is safest for her because some people find it particularly icky compared to other more dangerous procedures based on the paternalistic notion she might later regret it.  Numerous other restrictions are working their way through the courts.

        Seriously David, your myopia is showing.

  5. The Supreme Court is supreme.  It has the constitutional right to overthrow any law passed by Congress, by any of the states, by any referendum or state constitutional provision voted in by the people of any state, if the Supreme Court rules that such a law is contrary to the federal constitution.

    The Supreme Court can also revisit any of its previous decision and overturn them.

    I don’t know what it is you are proposing.  Could you clarify?

    1. Is that normally the process is that legislation leads and the court follows. It’s not an absolute but the legislative side is a major part of the process. We see this now with gay rights. But in the case of abortion, when the states were slowly legalizing abortion, the supreme court stepped in and short circuited it.

      1. The court did not “step in.”  Roe sued the state of Texas because she couldn’t get an abortion because of a texas law outlawing abortion.  The legislation was the texas law. The suit filed by Roe went through the federal appeal systems and wound up in the Supreme Court.

        The supreme court found that the texas law was unconstitutional because it violated the 4th and 9th

        amendments guaranteeing privacy. That made all state laws on abortion unconstitutional.

        That is how the process works.

          1. The right to privacy existed for almost a century prior to Roe, and was most vigorously defined in Griswold v. Connecticut in the decade prior to Roe, establishing a right to access contraception for married couples.

            Roe extended that privacy right to the doctor-patient relationship in the context of being able to choose an abortion.

            FWIW, there may be a right to contraception, but not the entitlement that the government provide it for you (like 5th amendment legal representation), so what does a right to healthcare mean?

  6. Is already a civil right, at least in Colorado

    The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state wherein all residents of the state, between the ages of six and twenty one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.

    Parents are required to educate their children, and the state is required to provide it.

  7. in the Delcaration of Independence when he wrote;

    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.

    When conservatives deride the wall of separation posited by Jefferson, they cite the Declaration, claiming that if there is no source of rights outside of human rationality (i.e. Natural Law, God, or whatever super-human force), then rights come from the state, and the same state that grants rights can take them away.  

    Yet if their position is correct, why over the vast course of human history prior to the enlightenment, why were these truths not evident at all, inequality was presumed, and these rights alienated at every turn?

    Alan Dershowitz, in an interesting though flawed book, Rights from Wrongs addresses this conundrum, and essentially endorses moral relativism.

    From Amazon:

    Does natural law really exist outside the formal structure of humanly enacted law? On the other hand, if rights are nothing more than the product of human law, what argument is there for allowing the “rights” of a few people to outweigh the preferences of the majority?In this book, renowned legal scholar Alan Dershowitz offers a fresh resolution to this age-old dilemma: Rights, he argues, do not come from God, nature, logic, or law alone. They arise out of particular experiences with injustice. While justice is an elusive concept, hard to define and subject to conflicting interpretations, injustice is immediate, intuitive, widely agreed upon and very tangible.This is a timely book that will have an immediate impact on our political dialogue, from the intersection of religion and law to recent quandaries surrounding the right to privacy, voting rights, and the right to marry. More than that, it is a passionate case for the recognition of human rights in a rigorously secular framework.Rights from Wrongs will be the first book to propose a theory of rights that emerges not from some theory of perfect justice but from its opposite: from the bottom up, from trial and error, and from our collective experience of injustice.

    A Johns Hopkins reviewer noted:

    Rights are often characterized as anti-democratic, as they limit or prevent implementation of majoritarian decisions. Dershowitz responds to this concern by arguing that his theory of rights is more democratic and less elitist than divine or natural law theories, as the nurtural approach arises from what the people consider a better society.  “I do not see rights, properly limited, as antithetical to democracy properly defined. Rather they are the most important elements of the system of checks and balances within a democracy” (p.160). Based on a society’s experience, rights can expand and contract to balance the priorities of the popular majority with the need to protect individuals from injustice. Finally, the experiential approach values a broad sense of pluralism, as polity-wide agreement on what constitutes “the good” is not required. It is enough to have collective experience with some aspects of “the bad” and wish to avoid them.

    but the problem is:

    This leads to one of the major gaps in Dershowitz’s explanation, one that is of particular interest for political scientists. How or why does rights-making happen in cases other than the most extreme ones? For rights to be useful, they will need to protect us not just from the most extreme kinds of harms, but also from the more mundane but still deeply damaging wrongs that are part of collective life. But here Dershowitz has a problem, because people will not all agree on which of these more common harms are sufficiently bad to give rise to rights. That seems to imply that we will need a political process for making that decision.

    From the right, a Claremont Institute scholar critiques Dershowitz’ calculus as providing justification for slavery or the Holocaust:

    This moment of crisis in the argument is the moment that brings forth Dershowitz’s invention, or his contrivance, of a moral theory. He professes not to know things that are “right” in principle, but he will make his way to moral judgments (as indeed others of us do) by beginning with the things that are “wrong.” And in gauging wrongs he will fall back on the principles of “utility”: genocide might have been thought defensible in Germany, and slavery right in America, but experience has shown, he says, that societies that practice genocide or accept slavery produce miseries on a vast scale. But miseries for whom? By a utilitarian measure, the Germans could have found it quite beneficial to remove the Jews from the professions and to distribute their businesses and their wealth to deserving Aryans. Yes, the Jews were killed, but as their property was distributed, the assets were spread about the country and the incomes of other people were raised. The campaign against the Jews might well have made Germans, in the aggregate, a happier, more cohesive lot. If the matter were left solely to the people on the scene, who was to say that genocide did not meet a utilitarian standard? Of course the experience bore no utility for the six million Jews killed in the Holocaust, but why did they count? On what ground were they to be regarded as “persons” whose injuries mattered in the world? Would we be silently slipping in the assumption that the lives of all human beings count? That is, are we backing into that notion of “all men are created equal”-that proposition that has, for Professor Dershowitz, no standing as a moral truth?  

    I think that whether you accept the theory of divinely or naturally endowed rights or not, ultimately, there is no firm foundation beyond a few very basic principles for what constitutes a right.  I think there’s enough in the Bill of Rights to realize that the founders disdained a majoritarian imposition of political power on unpopular positions, from which penumbras and emanations can be extrapolated, but ultimately, rights are man-made, and subject to revision.

    1. We do declare that we all have civil rights, but it is a political decision to make that declaration. And what makes this so difficult is that what one person sees as an obvious civil right another person sees as something that should be forbidden.

        1. The anti-choice sees the right to abortion as unfair and unjust to fetuses, I think antis are unfair and unjust to women with unplanned pregnancies.

          Under Dershowitz’ framework there is no consensus as to the injustice involved, so there can be no right to fetal life or abortion, and a plebiscite should decide.

            1. It requires a majority to put them in place. Once they are put in place then it requires a super-majority to remove them. So fundamentally they are subject to a vote.

              That is my main point, that there are no inherent rights. There are only rights we have decided as a society to elevate to that level.

                  1. The 14th Amendment coexisted with segregation and Jim Crow for almost a century before the Supreme Court revisited Plessey v. Fergerson and reversed  an earlier court decision.

                    If a vote had been taken at the time of the Brown decision among the “people,” segregation would have prevailed.

                    1. And that goes back to it requiring both legislation and a consensus from the majority to accept the law. That goes back to my original point, that civil rights are at root rights society chooses to declare as fundamental rights.

                    2. There was NOT a consensus that segregation should end.  There was a Supreme Court decision ending school segregation.  That decision became the law of the land.  The federal government repeatedly sent federal troops into the South to enforce that law.

                      It reminds me of the old adage, “When you have them by the balls, their hearts and minds will follow.”

                      The ability of the federal government to protect a civil right by the use of troops, if necessary, is central to our concepts of civil rights, guaranteed by the Constitution, and enforced by the federal government.

                      My original point was that right now the right to an abortion is a civil right, protected by the Constitution and enforced by the federal government.  If Roe is overturned, then abortion will not longer be a civil right  

            2. that Dershowitz’ framework is flawed on this issue.  His construction doesn’t allow abortion to be a civil right if the fetus is an equal entitled to the right to life.

    2. I keep getting caught up in the distinction between civil rights and human rights…the Constitution doesn’t specify, it says “Rights”, but I think there is a difference to be considered.

      Human rights…?…none really. Humans are animals and there doesn’t seem to be much in the way of rights movements among whales and coyotes. Even the concept moves us away from there. It is ultimately, I think, related to the age old question of who gets to stand near the campfire and who gets to eat first. No “rights” involved, only privilege granted by the Alpha.

      So…inject “civil”ization. For thousands of years we have been working towards granting “rights”. Did Romans have rights? As I recall…some did, some didn’t. Even the Magna Carta was forced on King John by the barons of the day. It was not for the benefit of the rabble, but the Church elite. It is natural to assume they involved “God” as an ally.

      Insofar as believing in “God-given” rights…it doesn’t seem to me that any god of whom I have ever heard has ever doled out anything except privilege for his/her chosen flock. I think civil rights, in fact, are put in place to protect people from gods…and their acolytes and warriors.

  8. The reason I deplore abortion as a political issue is that is always used as a “wedge issue” to raise money and GOTV, usually via scare tactics. I do not think it always favors the progressive candidate. The discussions/campaigns always feature biological and legal distortion.

    Be that as it may.  This is why I think the issue will not go away, at least on this blog.

    1) Reproduction is an issue that is central to everyone’s life. We are the survivors.  We were not victims of violence, maternal rejection, starvation or disease.

    2) Abortion is an issue that everyone deals with, one way or another.

    3) Maternal rejection is the most terrifying psychological attack that any child could have. There are echoes of that in every abortion debate….we were the chosen, was anyone rejected? Could that happen to us?

    We have created an existential political system. It begins with the assertion of individual rights that can not be violated by the state.  There is absolutely no scientific foundation for that assertion.  Yet, our whole political system is built on it.

    The Constitution sets up a system of conflicting rights…the individual right vs. the rights of the collective majority; the individual state vs the federal government; and a judicial system designed to mediate all of these adversarial relationships.

    Roe presumes  an adversarial relationship between the women and her embryo/fetus during the first trimester and then an adversarial relationship between the women and the state in the last trimesters.  

    The latter presumes that a fetus can be protected from its mother before it is born..  All of this means we treat a pregnant woman who wants the child diametrically differently from the pregnant woman (or family, or society, or father) who doesn’t want the child. It calls for two absolutely different set of attitudes and values to exist at the same time in the same legal system and in the same culture.

    We keep trying to square the circle.

    IMHO

    1. That’s a good summation of your position, and the best you’ve ever expressed it.

      However, you continue to be wrong about it being falsely hyped as a scare tactic, as the state level restrictions we’ve seen explode over the last few years do have real world effects on women in those states.  87% of US counties have no abortion access.  Who we elect and what judges they appoint effects the ability to access abortion.  I have the right to feast on Dodo bird all I want, but without access the right is meaningless.

      Also, your last paragraph presents a false dichotomy.  It’s not the state treating these two hypothetical women differently; Their individual choice makes them different.  The paradigm is the same for each woman.  They get to choose how to manage their pregnancy free of undue government intrusion.

      1. You conclude:

        It’s not the state treating these two hypothetical women differently; Their individual choice makes them different.  The paradigm is the same for each woman.  They get to choose how to manage their pregnancy free of undue government intrusion.

        Yet in the previous paragraph you said:

        as the state level restrictions we’ve seen explode over the last few years do have real world effects on women in those states.  87% of US counties have no abortion access.  Who we elect and what judges they appoint effects the ability to access abortion.

        I would argue that it is the present of two conflicting value systems present in the same legal systems that allows the situation you describe so well to exist.

        1. Every issue has conflicting values that get sorted out in the legal/political sphere:  extractive industries v. environmental protection, business v. labor, etc.  It’s why elections matter and you have to lobby on the issues that are important to you.

          1. You are right about conflicting values and that is why I said that the legal system is set up to deal with all the adversarial relationships based on different values and interests.

            What is unique about Roe, IMHO, is that the conflicting values are embedded in a civil right.

  9. Privacy.

    Do Americans have a right to a level of privacy in our ever increasing technical world?

    Whether it is protection from unnecessary wiretaps to allowing warrantless GPS tracking on our cars. What about tracking cell phones and using space technology to intrude on private lives here on earth.

    Privacy is the next big debate and landmark judicial rulings will determine, or not, what level of intrusion the government, and possibly corporations, have into our private lives.

    1. From the link I showed David above, there is a strong set of precedents recognizing a right to privacy which would be difficult to overturn en bloc.  

      As much as the right wing hates that in regards to abortion, it is a powerful wedge issue for the teabaggers, because at face value they claim to be upset about an overbearing federal government (the skin tone of whose president may or may not be a factor.)  The court seems very willing to allow evidence tainted by information obtained without warrant, and the average driver or cell phone user is likely completely unaware of the potential tracking device in the technology they are toting around with themselves wherever they go.

      Future cases on these issues will be very interesting, but the sheeple pay very little attention to SCOTUS decisions.

    2. “No Place to Hide”,  by Robert O’Harrow Jr. It deals with the demise of privacy resulting from the implementation of Admiral John Poindexters’ “Total Information Awareness” program.

      One of the reasons that four of the five richest counties in the USofA are in counties surrounding DC is the absolutely exponential growth of data mining and analysis companies and communications companies that handle trillions of pieces of information about you and me.

      Private industry collects it and sells it to the government and other businesses. Privacy?…get real.

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