Topic 14
Rights
Definition: a right is something for which one can demand
or enforce compliance (Robert Nozick).
TYPES OF LEGALLY ENFORCEABLE RIGHTS
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Constitutional Rights: The first ten amendments to
the US Constitution are called a Bill of Rights.
These are changeable by new amendments, such as Amendment
XIV (equal protection of the laws) and Amendments XV, XIX, and XXVI (voting)….
….. and by Court interpretation, such as Plessy v. Ferguson
and Brown v. Board of Education on equal protection.
Voting Rights Act of 1965, and 1982 amendments.
Higher Education Act of 1972 (Title IX)
Civil Rights Restoration Act of 1988
Americans with Disabilities Act of 1990
These are changeable by Court interpretation, and by new
legislation. (Ex. Grove City v. Bell and Civil Rights Restoration Act.)
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Contractual Rights: These are private agreements that
are enforceable in court, subject to the law of contracts.
WHAT KINDS OF THINGS SHOULD BE CONSTITUTIONAL RIGHTS?
Consider the United Nations Universal Declaration of
Human Rights.
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Three types of rights and their counterparts in the US Constitution:
1. Integrity of the person: yes. Amendment IV: no unreasonable
searches and seizures. Amendment VIII: no cruel and unusual punishments.
(See Economist on the death penalty, May 15,
1999, pp. 95-97: "Capital punishment has been abolished by all of the big
democracies except the US, Japan and India. ... In the past three decades
the international movement to abolish the death penalty has scored the
kind of victories which slavery opponents took much longer to achieve more
than a century ago."
According to Amnesty International: 1,625 executions in
1998; 80% were in China (1,067) Congo (100), the US (68), and Iran (66).
Almost all countries that have abolished it have done so in spite of public
support for capital punishment.
2. Civil and political liberty: yes. Amendment I: free
exercise of religion, speech, assembly, petition for redress of grievances.
3. Basic human needs. No. (Why? And what do you think?)
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Types of rights in the US Constitution that are not "universal."
1. The right to bear arms: Amendment II. (What did
the framers intend?}
2. Defendants rights. Amendments IV,V,VI,VII.VIII.
(In many countries without an Anglo-American tradition of law, the defendant
is presumed guilty until proven innocent, rather than vice versa.)
CHANGING CONCEPTIONS OF AMERICAN CONSTITUTIONAL RIGHTS
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Barron v. Baltimore (1833) and Amendment XIV. Barron sued
Baltimore under Amendment V ("nor shall private property be taken for public
use, without just compensation.")
The Supreme Court said that this protection was only against
the federal government, and not against state governments.
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Amendment XIV: "No state shall ….." (1868)
Chicago, Burlington and Quincy RR v. Chicago (1897),
almost 30 years later, was the first case that supported fair payment for
private property against a state government.
Cases are still being decided regarding selective incorporation,
as late as 1994. (See Light, Box 14-1, pp. 584-585 for longer list.)