Tuesday, August 10, 2010

What is a "Constitutional right," anyway?

The SSM debate continues to enliven the Volokh blog, with Orin Kerr interested in just when exactly gay marriage became a right.
An Interesting VC Reader Poll Result on Same-Sex Marriage

A Question for Readers Who Think The Constitution Required States to Recognize Same-Sex Marriage Before 1900

Explaining the Wide Range of Answers on When the Right to Same-Sex Marriage Was Created
Asking when a "fundamental right" became a right strikes me as wrongheaded, though my sorry grasp of the relevant theory of rights may mean that I'm the wrongheaded one here.

To mash up a couple of VC comments, I posted, my understanding of "rights" is that natural rights are a necessary hypothesis, along the lines of “the philosophy of as-if.” They can’t be held to be granted by the government, which is why Jefferson et al. made them “self-evident” and secured *by* government.

Plenty of people in Jefferson’s day and after, parallel to certain modern commenters best left unnamed, thought there was nothing “self-evident” about any rights to life, liberty, and the pursuit of happiness, or about all men’s being created equal. De Maistre comes to mind. But there are relatively few old-school conservatives like this, at least who will admit it.

When did all men became equal? And all women?

“Equality” seemed silly and by no means self-evident when applied to men without property, or to women, or to blacks. Now it seems silly when applied to gays.

Because rights are "self-evident," they are logically and legally prior to the Constitution, which was never intended to be an enumeration of all rights enjoyed by the people. The Framers expressly argued that no such enumeration was necessary, because rights were natural and prior to the Constitution. Even when a Bill of Rights was added, its proponents were careful to add the Ninth Amendment to avoid any positivist argument that rights are granted only by the government.

Therefore, when it’s a question of one’s right to do this or that, saying “but is it in the Constitution?” is a category error.

... "Philosophy of as-if" is a reference to Vaihinger's book of the same name, kind of a Kantian pragmatism if you will -- and if you think "Kantian pragmatism" is a contradiction in terms, well, you need to read Vaihinger, or read about him anyway. What is the Critique of Practical Reason if not an argument for pragmatism?


  1. I'm staring at this post and reading what's on Volkh and think that it may be a subject that highlights a fundamental contradiction in what being a conservative may be.

    Is it a belief that "we people aren't really very good at figure stuff out. Unified complete theories used to alter things just don't work out very well, and we have to do things ad hoc and figure out the best we can as we go along. But because of that, radical change is a stupid idea-- thinking we can figure stuff out and make changes accordingly is a delusional hubris."

    Or is it a belief that "all the stuff we've been doing for always is really good and we can't change it." If that's it, I have a short story to recommend.

    Obviously from my restatement you can tell what form of conservatism seems most sympathetic to me. Seriously, this whole inquiry seems to smack of the later form of conservatism. As your post suggests, we've figured out a lot about what rights might ought to be as we've gone along since 1776. But it's all pretty provisional-- we really can't have it fully figured out and only do the best we can.

    You'd think Justice "mr. doctrine of unintended consequences himself" Scalia would understand how completely type 1 conservatism should take away all kinds of certitude. But I suppose not.

  2. I would even spot them that *radical* change is usually undesirable. But it's easy to exaggerate how "radical" a change is.

    But yes, what is a "fundamental right" is not, by its nature, something that can be frozen at 1789; to think otherwise is to ascribe perfect knowledge to the Framers, and conservatives aren't supposed to believe that men can be angels, in this world at least.