Over on Prawfsblawg yesterday, Roll Tide Law prof Frederick Vars noted that a recent survey found only 29% of Americans could name one of the five rights guaranteed by the First Amendment. He then asked the obvious question:
[B]ut should we care?
Well asked, professor. His reasoning is that another survey found that 99% of Americans think the right is very important, and if you want to argue First Amendment protection in court, saying "Free Speech" will get you there, you don't need to name the amendment.
Comments were closed on his post, so no one got to offer an alternative answer to the "should we care" question, but we think perhaps the answer is yes.
There are a lot of rights out there, they don't exist in a vacuum, and unlike folks, not all rights are created equal. There are God-given natural inalienable rights, and their close relative the Constitutional rights (ie: the God-given natural inalienable rights deemed important enough to be mentioned in the Bill of Rights). Then there are statutory rights, which you have only by virtue of the government saying so, things like social security benefits or early voting. These things can be taken away without violating your core natural rights. And then there's other rights existing out in the aether, like the right not to be offended, or to walk from your dorm to class without hearing something you deem to be hate speech. When you start throwing the word "right" around (round round) willy nilly, weird and stupid things happen.
For instance, in a HuffPo op-ed, Celia Buckman writes regarding the Hobby Lobby decision:
What someone should or should not do for their health is between them and their physician, not their boss. This also specifically targets female workers' rights to their bodies, as Hobby Lobby exclusively refuses to pay for female contraceptives.
For a brief period between the implementation of the ACA and the ruling in Hobby Lobby, women did have a right to have their employer provide specific types of contraceptives. But that's a statutory right. The outrage coming from the Hobby Lobby decision though acts as if it infringed on one of the more important God-given natural inalienable rights, specifically the right to control your own body. But women still have the right to control their body, what they've lost is the right to make someone else fund their control.
If you're familiar with the Motte and Bailey style of argument, this is it at work. The insurance coverage right is a weak right, it's the Bailey, and it's very hard to defend. When attacked, women retreat into the bodily autonomy argument, that's the Motte, the fortified keep in the center of the Bailey that's virtually impregnable (har!). Without understanding how rights can differ, women like Celia Buckman (and like a hundred million others) will think that the Bailey is just as defensible as the Motte. Fortunately for Ms. Buckman, she's just a rising high school sophomore. We can forgive the lack of nuance in her case.
But then there's people like Nan Aron, President of the Alliance for Justice, "a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society" with an annual budget of four million dollars. She writes for HuffPo regarding the McCullen decision (the abortion clinic buffer zone one people stopped talking about once Hobby Lobby came down):
The Chief Justice gives away the game when he writes that the anti-abortion activists bringing the case "are not protestors," and expresses sympathy with their complaint that they haven't been as successful in persuading women to change their minds as they would be if the buffer zone didn't prevent them from sidling up to within an arm's length and whispering their gentle words of persuasion. Ah, you see, anti-abortion activists aren't actual protestors, like you might see outside a political event or on the public sidewalk in front of, let's say, a bank. Those kinds of people can be forced into far-distant "buffer zones" that have chain-link fence around them. But when it comes to abortion and women trying to enter a medical clinic to exercise their constitutional rights, well, that's another story. [Emphasis added]
Alright folks, get out your Constitutions and find for me the right to an abortion.
"It's in the penumbra!" ...Go fuck yourself.
Calling it a constitutional right doesn't make a lot of sense, with or without the penumbra. When we say "constitutional right" we mean the enumerated ones, not the penumbra. The penumbra has a whole other name, and it's God-given natural inalienable rights. The only difference between natural rights and constitutional rights is that the constitutional ones have been written down. An unwritten constitutional right is a meaningless term. It'd be like referring to the IMDB top 100 movies not listed on the IMDB top 100 movies list (and not just the films bumped off over time).
So why does McCullen refer to constitutional rights in her op-ed? Probably because it makes for good rhetoric, and because she hasn't stopped to consider what it means for something to be a constitutional right versus a natural right.
Going back to professor Vars's question, should we care? We think so. The origin of rights matters when it comes to how we treat them, and we're moving towards a society where people think the hierarchy of rights comes down to nothing more than how passionate they are about the issue. If you're going to make more use out of your free contraception than your religious freedom, then you know which right trumps the others. Next you'll be saying your right to not be offended trumps another's right to free speech, not based on any concrete theory of rights, but just on how you feel about their relative importance.