There is no such thing as a "natural" or "unalienable" right

[NotreDame]

It's related to a debate in another thread where some are arguing that natural rights flit about us like so many butterflies and may be, at any time, snagged with a net more commonly referred to as "the 9th and 10th amendments." Once caught, authorized taxidermists (sometimes called "Supreme Court Justices") may have them flattened, dried, and pinned to a page of the US Constitution enshrining them for all time as newly enumerated rights.

It's all rather charming.

Regardless of the subtle derision, it is true the 9th Amendment protects unenumerated rights. The plain text of the 9th Amendment says, “ The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The 9th Amendment was conceived in the context of a debate whether to have a BOR. Advocates of a BOR argued the BOR was necessary to protect those rights from the federal government. The Federalists and others argued the Constitution was essentially a BOR protecting the unenumerated rights of the people since the Constitution vested no power to the federal government over their unenumerated rights. In addition, Federalists argued there was an inherent danger of enumerating rights of the people, as this could be construed, as you’ve done here, that there are no other rights of the people the government may not trample upon.

It is that context which was the impetus of the 9th Amendment. James Madison, in his speech to the House as he introduced his proposed rights for the BOR, acknowledged that context and had a remedy.

“It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation... It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.”

Madison’s fourth resolution, later the 9th Amendment, was, “ The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

So, it doesn’t matter whether you find this view of the 9th Amendment palatable or practical today, charming, or quaint. Factually, the 9th Amendment protects unenumerated rights, those rights were vast, formed in part by natural rights philosophy, especially a vast expanse of liberty interests.

Randy Barnett, renown law professor, wrote an article as to the meaning of the 9th Amendment. He accumulates considerable evidence of the vast expanses of rights, is liberty, the founders, framers, and public understood the 9th Amendment to protect.

The link to the law review article is below.

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1850&context=facpub

 

[NotreDame]

I can agree with that. Rights are codified in law. They are not universal.

Or, if they are universal, they are tantamount to Plato’s forms, but that we aren’t going to know whether we have discovered them by any reason or logic as Plato believes with Forms, and governments can and do trample them.

 

[aociswundumho]

Rights are a man-made concept. If they were 'natural' or biological in origin, why dont other animals have them?

Anything morally wrong with torturing animals?

If yes, then animals do have some rights.

 

[Lursa]

Anything morally wrong with torturing animals?

If yes, then animals do have some rights.

How so? Please explain how humans believing causing pain to other species means the other species have rights?

I believe it's morally wrong to lie to people...I believe it's morally wrong to cheat people. Those things are often not illegal and not associated with any rights I can think of.

 

[aociswundumho]

How so? Please explain how humans believing causing pain to other species means the other species have rights?

Let's take it one step at a time. I've been answering your questions, show me the same courtesy:

Is it morally wrong to torture animals?

Yes or no will suffice.

 

[AmNat]

Okay, that subject line is a bit extreme, but hey, it was a hook and it got you here.

What I mean is this. Often unalienable or natural rights are cited as a concept to justify all kinds of judicial hijinks. "This is clearly a natural right, so even though it's mentioned no where in the Constitution it must be a Constitutionally protected right, right?" Such laws certainly have meaning and they were a source of inspiration for the freedoms we enjoy today. But in a legal sense, ultimately unalienable and natural rights amount to little more than political poetry. They sound nice but don't mean much.

I say this because at the end of the day the only rights you really enjoy are those your government chooses to protect. Doubt this? Let's pick one, liberty. Fairly uncontroversial as far as unalienable rights go, but do the people of North Korea have it today? Did those in Soviet Russia or Nazi Germany? Did African Americans enjoy it in the United States prior to 1865 (or at times after)? An unalienable right means absolutely nothing when you're sitting in a concentration camp having been found guilty of a thought crime.

So are natural rights in anyway meaningful in a legal context?

What say you?

"Natural rights" are a way for people to justify changing (either peacefully or violently) the existing structure of legal rights to another more favorable to themselves or their clients. This is usually done when a mismatch exists between formal and real power. Power does what it wants, and will easily find justification for ignoring formal laws that stand in its way.

"Social justice" is an example of this phenomenon, but hardly the first. Classical liberals in centuries past led the way with using lawfare against decaying formal power structures.

 

[AmNat]

Anything morally wrong with torturing animals?

If yes, then animals do have some rights.

Is morality solely reducible to justice?

 

[TurtleDude]

Of course there are natural rights. If someone tries to kill me, I have a natural right to protect myself. Whether or not the government wants to protect that right is utterly irrelevant.

Years ago, when I was a college student, and trying to articulate my libertarian leanings, a really smart woman, who later ended up being the one female founder of the Federalist Society, noted that essentially a right is a just claim that society values. I have lots of those who oppose some of the rights guaranteed in the bill of rights-especially the second-who say that since we cannot prove natural rights exist (does "Catholicism or Buddhism "exist") then the founders really were wrong. That is idiotic. To UNDERSTAND what the bill of rights protects, you have to understand that the founders believed in natural law and natural rights

 

[distraff]

Okay, that subject line is a bit extreme, but hey, it was a hook and it got you here.

What I mean is this. Often unalienable or natural rights are cited as a concept to justify all kinds of judicial hijinks. "This is clearly a natural right, so even though it's mentioned no where in the Constitution it must be a Constitutionally protected right, right?" Such laws certainly have meaning and they were a source of inspiration for the freedoms we enjoy today. But in a legal sense, ultimately unalienable and natural rights amount to little more than political poetry. They sound nice but don't mean much.

I say this because at the end of the day the only rights you really enjoy are those your government chooses to protect. Doubt this? Let's pick one, liberty. Fairly uncontroversial as far as unalienable rights go, but do the people of North Korea have it today? Did those in Soviet Russia or Nazi Germany? Did African Americans enjoy it in the United States prior to 1865 (or at times after)? An unalienable right means absolutely nothing when you're sitting in a concentration camp having been found guilty of a thought crime.

So are natural rights in anyway meaningful in a legal context?

What say you?

There is no evidence that objective morality or rights exist. So I think you are right. Basically enact policies that are better for people and the economy.

 

[NatMorton]

There is no connection between your rights and what the state considers illegal. The US government once enforced slavery - does it follow that white people have the natural right to own black people?

No, that's my point. One can claim black American slaves had a natural right to freedom, and in a moral sense, like all humans, of course they did, but in a legal sense their natural right to liberty meant absolutely nothing. The legal reality was they were property.

Natural rights are fine fodder for moral arguments. They're entirely relevant when one is advocating for new laws (like, say, the abolition of slavery), but when people begin discussing them as if they're extent legal entities with the same force as written law, at least in our system, then that's when the confusion starts. Not every one agrees on what the natural laws are or what they mean, and there's no legal framework for declaring which are true natural laws and which are just someone's opinion on what ought to be.

 

[NatMorton]

You have no more rights than the government allows at any given time. Natural rights do not exist. Power does.

Alas, I agree with you. Part of me wishes what you say were not true, but it very much is.

 

[NatMorton]

"Natural rights" are a man-made concept, often used as an end-run around using religious beliefs to justify something. But that concept is still an appeal to a higher authority.

Rights are a man-made concept. If they were 'natural' or biological in origin, why dont other animals have them? If they were 'inherent,' biologists would have found evidence of such.

To answer your last question, it illuminates a philosophical foundation that some of our Founding Fathers used while designing our govt and may prove helpful when originalists try to interpret the Constitution. (See John Locke)

I wouldn't go that far; some of the mental concepts we refer to as "natural rights" are not solely a function of culture nor exclusive to humans. Avoiding the condition -- or even the perception -- of being trapped or cornered is a near universal behavior among higher members of the animal kingdom. It's far too widespread to be only learned behavior. It's genetic. The reason is obvious as indifference to a situation where one cannot escape is surely a less than favorable survival trait in most environments. This behavioral pattern could easily be the foundation of the nearly universal desire among humans to be free and for their conviction that liberty is an inherently good thing.

In short, I believe some of the "naturalness" of natural rights is in our DNA.

 

[NatMorton]

There is no evidence that objective morality or rights exist. So I think you are right. Basically enact policies that are better for people and the economy.

Without drifting into the metaphysical, I would say the concept of natural rights are a more natural -- i.e. more objectively rational -- phenomena than you might suppose. See post #37.

 

[NatMorton]

Anything morally wrong with torturing animals?

If yes, then animals do have some rights.

It's an interesting point, but I think being dropped into a pot of boiling water might be classified as "torture" by most people, yet it's a common -- and perfectly legal -- step on the way to a fine lobster dinner.

Animal cruelty laws are, I think, less about the animals and more about the humans. It's the mental anguish a human feels knowing that someone across town may be using puppies for target practice that is the harm that "animal rights" laws seek to prevent. That the human expressing the outage over the news is standing in line at the deli waiting for a corned beef sandwich and wearing leather shoes often goes without notice.

As the comedian Dennis Leary once quipped, "we only want to save the cute animals."

 

[Mika-El]

Is that document binding law?

It can be depending on the context in which it is applied. I do not mean to be snotty with the answer. That was serious because I would argue these rights are human constructs and their meaning as comes from the context in which they will be applied, Its a two part concept y'all have captured. Natural some would argue is a term used for environmental phenomena that pre-existed homo sapiens and which homo sapiens still is struggling to learn to be compatible with. A natural law I would argue if we had to use such a term would be say gravity or the movement of water. Some would argue those are not laws. In animistic societies those natural phenomena are considered laws which we Westernized homo sapiens ignore and try contradict with unnatural laws.

 

[NatMorton]

It can be depending on the context in which it is applied. I do not mean to be snotty with the answer. That was serious because I would argue these rights are human constructs and their meaning as comes from the context in which they will be applied, Its a two part concept y'all have captured. Natural some would argue is a term used for environmental phenomena that pre-existed homo sapiens and which homo sapiens still is struggling to learn to be compatible with. A natural law I would argue if we had to use such a term would be say gravity or the movement of water. Some would argue those are not laws. In animistic societies those natural phenomena are considered laws which we Westernized homo sapiens ignore and try contradict with unnatural laws.

Not sure your answer is an answer to my question. The "document" I was referring to is the Declaration of Independence which is, I believe, not binding law.

Regarding natural rights, I think there's a bit more to them than human construction. I think there's a case many are survival traits rooted in our DNA and expressed through instinctive behavior. See post #37.

 

[vegas giants]

There are no natural rights.

List the universally accepted list of natural rights

 

[ALiberalModerate]

the DOI has zero legal weight. Natural rights are a human philosophical construct.

Society is a human construct. Currency is a human construct. Liberty is a human construct. Government is a human construct. I am not really following what your point is. Not being critical, I am just saying you should probably elaborate.

 

[Slartibartfast]

At the end of the day, the only rights a person has is what they can create for themselves through force.

Luckily human morality isn't based on rights, but instinctive pro-social behavioral drives, so there is a minimal need to create those rights using force.

 

[ALiberalModerate]

Okay, that subject line is a bit extreme, but hey, it was a hook and it got you here.

What I mean is this. Often unalienable or natural rights are cited as a concept to justify all kinds of judicial hijinks. "This is clearly a natural right, so even though it's mentioned no where in the Constitution it must be a Constitutionally protected right, right?" Such laws certainly have meaning and they were a source of inspiration for the freedoms we enjoy today. But in a legal sense, ultimately unalienable and natural rights amount to little more than political poetry. They sound nice but don't mean much.

I say this because at the end of the day the only rights you really enjoy are those your government chooses to protect. Doubt this? Let's pick one, liberty. Fairly uncontroversial as far as unalienable rights go, but do the people of North Korea have it today? Did those in Soviet Russia or Nazi Germany? Did African Americans enjoy it in the United States prior to 1865 (or at times after)? An unalienable right means absolutely nothing when you're sitting in a concentration camp having been found guilty of a thought crime.

So are natural rights in anyway meaningful in a legal context?

What say you?

From the point of view of the founders, yes what they regarded as natural rights were a meaningful legal context. In fact, there was a lot of concern about including a Bill of Rights because they were concerned that if you listed out rights/restrictions on the powers of government specifically, someone would come along in the future and think that was the only rights people had. For example, marriage isn't mentioned in the constitution, but marriage between consenting adults is nearly universally regarded as a right.

Everything about our society is a human construct: rights, currency, government, property ownership, nations, and so on, all purely human constructs.

 

[bongsaway]

Okay, that subject line is a bit extreme, but hey, it was a hook and it got you here.

What I mean is this. Often unalienable or natural rights are cited as a concept to justify all kinds of judicial hijinks. "This is clearly a natural right, so even though it's mentioned no where in the Constitution it must be a Constitutionally protected right, right?" Such laws certainly have meaning and they were a source of inspiration for the freedoms we enjoy today. But in a legal sense, ultimately unalienable and natural rights amount to little more than political poetry. They sound nice but don't mean much.

I say this because at the end of the day the only rights you really enjoy are those your government chooses to protect. Doubt this? Let's pick one, liberty. Fairly uncontroversial as far as unalienable rights go, but do the people of North Korea have it today? Did those in Soviet Russia or Nazi Germany? Did African Americans enjoy it in the United States prior to 1865 (or at times after)? An unalienable right means absolutely nothing when you're sitting in a concentration camp having been found guilty of a thought crime.

So are natural rights in anyway meaningful in a legal context?

What say you?

Rights are like the bible, men made them up.

 

[Mika-El]

Not sure your answer is an answer to my question. The "document" I was referring to is the Declaration of Independence which is, I believe, not binding law.

Regarding natural rights, I think there's a bit more to them than human construction. I think there's a case many are survival traits rooted in our DNA and expressed through instinctive behavior. See post #37.

The D of I is a theory that is put into application by further constitutional references. It was never meant to be a stand alone document limited to a few passages. So in that sense it has become binding when applied according to other references that support it. Your point that it would by itself onlyu a declaration is of course taken, Hope that clarifies it. Good thread you started. Nice to discuss something other than Covid. Thank you, I do get your points.

 

[Mika-El]

At the end of the day, the only rights a person has is what they can create for themselves through force.

Luckily human morality isn't based on rights, but instinctive pro-social behavioral drives, so there is a minimal need to create those rights using force.

The most powerful values do not have to come through force but through insight. Remember the story about the Wind and the Sun from Aesop's fables?

 

[ALiberalModerate]

Rights are like the bible, men made them up.

It's kind of like how a nation's borders work. They seem so real to us, but they are just another human construct. Up in the Minnesota North Shore/Boundary Waters region, it's pretty easy to walk into Canada in the boreal forest there without even knowing you did it. Walk a few feet and you are in Canada. Walk back a few feet and you are in America again. The only thing that changes are the potential human constructs you are subject to depending on where you are.

 

[VanceMack]

There are indeed no 'natural' or 'inalienable' rights.

The concept of natural rights is an ideology...an ideal position that has absolutely zero bearing in life or reality. The concept of 'natural rights' belongs on the trashheap of reality, just like the concept of 'fair', which usually goes hand in hand with the proponents and advocates of natural rights. All one need do is look at the definitions of the terms and you will see why the concept, while again 'ideal', is not and never has been reality.

Throughout history and across the globe people have demonstrated that natural rights are a myth. In each and every instance of government, the only 'rights' people have are the ones they are willing to fight for and win, and the ones the government is willing to live by.