What is a Right
Bryan Kelly
June 2019
This essay describes the concepts that are Rights according to the Constitution. By examining those that are Rights, we can better evaluate what is not a Right.
Before we carry on with detailed discussions about what should, or might, be a Right, we have an imperative to verify a common frame of reference. In other words, exactly what do we mean when we claim that something is a Right.
I introduced this concept in another essay titled: “Words Are Much More Than Just Words”. That essay presents and discusses the need, even the imperative, to ensure that before we talk about “Rights,” or any subject, everyone involved in the conversation must have same concept of a Right. If we do not agree on the definition of a Right then we at least understand the other perspective.
For every use of the word Right, within the scope of this essay of What Is A Right, the Constitution provides a protection for our rights. Each of those Rights does not obligation the government expend funds or resources on the behalf of any individual in the exercise of those Rights. The government may well be obligated to utilize resources when there is an attempt to abuse or restrict our Rights, but that is clearly separate from the exercise of our Rights.
When we speak of Rights the topic is generally Rights as in our constitutionally guaranteed rights. Rights that every citizen has and that are inalienable. Rights that we may elect to utilize. To verify that, examine the constitution and the rights therein.
For this purpose I downloaded a text version from this site:
https://usconstitution.net/const.pdf
I presume that it is textually correct and begin from that position.
Open the document, go to the top or beginning, and use the keystrokes ctl-F to instruct your computer to search for the word “right.” The first occurrence is about patents, the legal concept of owning the right to a process or idea. The second occurrence is part of the web site and not the constitution itself. Finally, the first occurrence of Right, in the context of this essay is in the first amendment. This is the heart of the discussion so the text is copied just below.
Before beginning it is worth nothing that in the original constitution and the declaration of Independence, our constitution does not grant and rights. It protects those rights. As important as our rights are, the phrase “my constitutional rights” is very much over-worked.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
While there is only one instance of the word right there are six categories of rights in this one sentence. This is the first amendment and I posit the order was quite intentional. They are the first and most important of the Rights. The first of those is that of religion.
That very first phrase of that first amendment:
Congress shall make no law respecting an establishment of religion,….
This phrase does not give us a Right. It prevents the government from interfering with out Right. We all know that so let’s consider a separate aspect of that phrase. What is this Right of religion? And what does it mean for the constitution to protect it?
Much thought went into this phrase, these ten words. Congress shall make no law about religion. Period. No if, ands, or buts about it. Congress, and by inference, all the states and all lower levels of government shall pass no laws controlling any religion.
Consider this from an economic point of view, meaning the economies and budgets of government and the purposes to which government can allocate money. Consider this in terms of your right to religion.
You, meaning every reader to include myself, have the right to believe in and adhere to the religion of your choice. You may practice religion as you chose. (Presuming of course that you do not infringe upon the rights of others, but that is quite deliberately another topic.) You have the right to change religion as often as you choose.
Here lies the core of this essay. What does it cost the government, meaning the people at large, to support this Right? When you exercise your choice of religion, what must the government DO to support and protect that Right?
The correct, and extremely important answer is: Nothing! The government is expressly prohibited from passing ANY laws and therefore from making any expenditures regarding your choices of religion. The government must keep its nose out of your religious affairs.
Your choice of religion is a Right. It is protected by the constitution, but the government does not participate in your exercise of that Right. It is a choice you get to make that the government cannot interfere with.
Before moving on there is a point that some might be prone to quibble over. If a state, county or some other government passes a law about religion, in contradiction to this first amendment, then other parts of the government are obligated to step in and ensure that said law is overturned and adjudged as invalid. That is an expenditure of resources. The cause of this expenditure is not you and your religion, it is the body that created said law in violation of the constitution. The government is obligated to overturn laws that violate the constitution.
The second phrase of the first amendment reinforces the first phrase. Let’s move on to the third phrase.
Congress shall make no law …; or abridging the freedom of speech
It is worded in the same manner, and has the same concept. The government shall not control your free speech. You may criticize the government without peril. And what resources might the government expend in support of that Right? The correct answer is none.
The government does not have to do anything for you to exercise your right of free speech. The prohibition on abridging that right is not an expense.
And neither is the government required to expend any effort to assist us in support of free speech.
Congress shall make no law …or abridging …, or of the press;
While this is the fourth phrase, is it one of the cornerstones of our democracy. The government can make no law abridging the Rights of the press. It may expend no resources to restrict the ability of the press to report on events.
In modern day society, there is some gray area here. Still, the point is that the government need not “DO” anything for freedom of the press. It is not an expense the government must bear. It is an extension of the right of free speech, but a collective Right for all the various people that become a part of the press.
Congress shall make no law … or the right of the people peaceably to assemble,, ….
If you and I find a few more people and assemble to hold a discussion, or any peaceable event, that is considered a Right. We may elected to do that as we may chose. The government is prohibited from restricting or abridging that Right.
As before, what does this cost the government? The correct answer: The government does not have to expend any resources to support or enable this Right. The government is prohibited from restricting this Right. Neither is the government required to expend any resources in support of this Right. The government has no obligation to provide you or I with a place to assemble. That is up to us.
It does not escape notice that this is the only phrase that includes the word “right.”
… or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Here we find an area that some might consider a bit fuzzy and gray. The government must create paths by which the people may submit their grievances and government employees must expend time in listening to those grievances. The government may even be required to change its methods of doing business dues to those grievances.
This concept merits consideration as a possible exception to the rule. The authors of the constitution recognized that any and all governments are bureaucracies. They inevitably surround themselves with layers of, let’s say, protection. The government protects itself. This phrase ensures that the government cannot completely shield itself from the people. In our daily lives this is not something we regularly engage in. It is not something we might daily exercise. Within the scope of this essay, the right to petition to government does not merit being called a Right.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The critical question to be asked again is: What effort or resources must the government expend to support this right? Again, the correct answer is: None. You may purchase and own Arms at your choice and the government need do nothing.
There are many discussions now raging about this particular amendment, but they have no effect upon the concept what a Right is.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Once again, this Right is a restriction upon the government. The government cannot, without probable cause, intrude upon your Right to privacy. The government does not need to expend any resources for you to have this Right. This amendment does provide avenues for the government to violate this Right, but only upon just cause, such as good reason to believe that you or I have behaved badly. This Right is a restriction upon the government and not something it must actively perform.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,….
This is another possible exception, but only until carefully considered. A trial is an artifact of government. In other places the government is provided authorization to accuse people of malfeasance and the ability to take action to thwart and prevent such behavior. This amendment was created because some governments took those accused of crimes into custody and kept them there for excessive periods without trial. This amendment prohibits that government behavior. It is not a Right in which a person might actively engage or participate in their daily life. Rather it is a restriction upon the government in how it must behave in criminal trials.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
This amendment follows the same path as previous Right to a Speedy Trial. It is not a Right that you or I might engage in as we follow our daily lives. It is a restriction upon the government.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This does not endow any particular Right upon the Citizens. Rather it states any particular Right not specifically mentioned by the Constitution cannot be infringed upon simply because that Right was not specifically mentioned. Again, this is a restriction upon the government. The government need to expend or consume any resources so that you or I might have this Right.
This is a rather long and involved amendment that describes who is and can be a citizen of these United States. While it contains the word “right” it is not discussing our abilities to do things or have things done for us. In regards to this topic, this is not an amendment about Rights.
This amendment is a direct concern of our Rights. It prohibits any law from abridging the right to vote. Note that the government does not need to expend any funds or resource except when a law attempts to violate this right.
The concept is exactly the same as for 15 and applied to women. Again, note that the government does not need to expend any funds or resource except when a law attempts to violate this Right.
This has the word right twice but is not of concern to this essay.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
This is exactly the same category as amendments 15 and 19. It guarantees the Right to vote, but once again, the government does not need to expend any funds or resource except when a law attempts to violate this Right.
This is exactly the same category as amendments 15, 19, and 24. It authorizes citizens to vote at age 18, but once again, the government does not need to expend any funds or resource except when a law attempts to violate this Right.
For every use of the word Right, within the scope of this essay of What Is A Right, the Constitution provides a protection for our Rights, but it has no obligation to expend funds or resources for any individual in the exercise of those Rights.