The language of rights now dominates political debate. Does our government respect the moral and political rights of its citizens? Or does the government’s war policy, or its race policy, fly in the face of these rights? Do the minorities whose rights have been violated have the right to violate the law in return? Or does the silent majority itself have rights, including the right that those who break the law be punished? It is not surprising that these questions are now prominent. The concept of rights, and particularly the concept of rights against the government, has its most natural use when a political society is divided, and appeals to cooperation or a common goal are pointless.
The debate does not include the issue of whether citizens have some moral rights against their government. It seems accepted on all sides that they do. Conventional lawyers and politicians take it as a point of pride that our legal system recognizes, for example, individual rights of free speech, equality, and due process. They base their claim that our law deserves respect, at least in part, on that fact, for they would not claim that totalitarian systems deserve the same loyalty.
Some philosophers, of course, reject the idea that citizens have rights apart from what the law happens to give them. Bentham thought that the idea of moral rights was “nonsense on stilts.” But that view has never been part of our orthodox political theory, and politicians of both parties appeal to the rights of the people to justify a great part of what they want to do. I shall not be concerned, in this essay, to defend the thesis that citizens have moral rights against their governments; I want instead to explore the implications of that thesis for those, including our present government, who profess to accept it.
It is much in dispute, of course, what particular rights citizens have. Does the acknowledged right to free speech, for example, include the right to participate in nuisance demonstrations? In practice the government will have the last word on what an individual’s rights are, because its police will do what its officials and courts say. But that does not mean that the government’s view is necessarily the correct view; anyone who thinks it does must believe that men and women have only such moral rights as government chooses to grant, which means that they have no moral rights at all.
All this is sometimes obscured in the United States by our constitutional system. The Constitution provides a set of individual legal rights in the First Amendment, and in the due process, equal protection, and similar clauses. Under present legal practice the Supreme Court has the power to declare an act of Congress or of a state legislature void if the Court finds that the act offends these provisions. This practice has led some commentators to suppose that individual moral rights are fully protected by our system, but that is hardly so, nor…
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