First Amendment rights increasingly collide with other rights in our courts. The right to equal protection under the law clashes with the right to exercise one’s conscience freely when Christian business owners refuse to service gay marriages. A right to health care conflicts with the free expression of religion when a religious school refuses to cover certain contraceptives in its health insurance plans. When rights conflict, how do we know which rights should take precedent?
This question may be too complex to take on in the medium of a blog. It’s a question that I recently raised in the Ethics portion of my Theory of Knowledge class. Answering it requires an exploration of the nature of rights.
The Bill of Rights in the U.S. Constitution is based on the Enlightenment notion of natural rights. A belief in natural rights is enshrined in the Declaration of Independence:
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.
Rights are described as “unalienable,” a term borrowed from property law. James Rogers explains, “An “alienable” right over property means that the property can be sold or given away by the owner. Property that is “inalienable” cannot be transferred by the owner (First Things, “Rights You Can’t Give Away,” June 2012).” Hence, “unalienable” signifies something that cannot be given or taken away. A natural right is unalienable because it is not foreign or external to human nature (such that it could be given away), but inherent in human nature (and thus cannot be given away since it is inseparable from us). So while I can give my time and treasure to the State (alienable), I cannot give away my conscience (inalienable).
In contrast to natural rights, which the State recognizes and secures, socially-constructed rights are invented and conferred by the State. They are not inherent to human nature, but are contingent on the power of the State. Simply, natural rights are discovered while socially-constructed rights are created. Thus, natural rights are the same for all humans everywhere, transcending time and space, whereas socially-constructed rights vary with time and space.
This distinction may help resolve conflicts in rights. If the conflict (meaning that protecting legally one right requires violating another) is between a natural right and a socially-constructed right, , the natural right should upheld first. Natural rights should take precedent because they constrain the power of the state, setting limits on what demands the state can make of us. Rights that originate with State power cannot by nature restrain State power: if the State creates them, the State can violate them.
This argument requires, of course, that one can discern which rights are natural: a question I will explore in my next post.