Where Do Rights Come From?

The controversy surrounding California’s voter-approved ban on same-sex marriage (Proposition 8) has, from the start, involved a robust discussion of “rights.” Not that this is particularly unusual in our country. Pay attention to conversations in the public square for very long and you’ll inevitably hear a great deal of talk about rights, often prefixed with words like “human,” “civil,” “personal,” or “constitutional.”

But while participants from all sides of these debates regularly refer to rights—often as an appeal thought to effectively trump all other considerations—it strikes me that most of us don’t do a lot of thinking about where such rights ultimately come from. To put it another way: who ultimately gets to decide what qualifies as a right? And yet, isn’t that question vital in considering whether a right is actually valid? While what follows certainly isn’t an exhaustive treatment of a rather massive subject, I hope it will begin to shed a little light on the issue.

Let’s return to Prop. 8 as an example. It initially made it on the ballot after the California Supreme Court ruled that same-sex couples have a constitutional right to marry. A slight majority (52%) of the state’s voters disagreed, passing a constitutional amendment that recognized marriage as valid only between a man and woman. Opponents of the ban took the issue to federal court, where Judge Vaughn Walker recently ruled it violates the Equal Protection Clause of the U.S. Constitution. Legal observers are virtually certain that the case will eventually be decided by the U.S. Supreme Court.

All of this brings up a few interesting questions. Does a right become valid when a majority of voting citizens chooses to ratify it? After all, “consent of the governed” has long been a integral principle of our political system and rightly so. But a moment’s thought reveals that a majority of voters determining what rights are exist or are valid is more than a bit problematic. For example, say a supposed right gains 60% of the vote in a given election, though it garnered only 40% support ten years prior. Are we willing to say that the “right” in question only became valid after the later vote? If so, what’s to stop a subsequent election from eliminating that right?

To frame the question in historical terms, did the 13th Amendment establish the right of people to be free of slavery? Could the Constitution legitimately be amended to repeal the 13th Amendment and allow slavery once again? Or did that amendment finally recognize something that fundamentally existed all along, something we’re morally bound to recognize in every age?

If it’s problematic to locate a right’s legitimacy in the popular will of the people, it’s also difficult to peg it to the decision of a court. Let’s say the current U.S. Supreme Court rules that their predecessors erred in refusing to recognize hypothetical right “A.” What’s to stop a later court from then ruling that the current court erred? Is it just a matter of getting five justices to agree on a certain issue?

The problem with appealing ultimately to either a popular majority of some sort or to the judgment of judges (who are themselves elected or appointed by elected officials) is that it constitutes what amounts to a modern “might makes right” argument: if we can get enough people to agree, we have enough power (political in this case) to bind others to our will. And while most of us don’t have any problem with this line of thinking as long as we find ourselves in the majority, we’re not so comfortable with it when we occupy the opposite position.

This leads me to the main point. I don’t think any of us can consistently argue that rights are determined in this way. But if that’s the case, doesn’t it point to the fact we’re all operating with the notion that some kind of law higher law exists, a law that stands above majority opinion, the rulings of judges, or even the U.S. Constitution? Otherwise, how could we ever say that any of those things are wrong and need to change? So while I’m happy to work for political majorities and judges that acknowledge that the institution of marriage is should be limited to one man and one woman, I don’t ultimately locate the legitimacy of that position in either. No, I’d eventually ground it in a higher authority.

Of course, it’s at this juncture in the conversation where people who disagree with me may confirm their suspicion that I’m a bigoted zealot wanting foist my (inevitably narrow and restrictive) religious beliefs on others in some holier-than-thou fashion. Who am I for wanting to push my sectarian worldview on others anyway?

Fair enough. I’m willing to submit my case to scrutiny and defend it as best I can. But here’s all I ask of those who dismiss or otherwise disagree with it: they also need to explain where they ground the authority of their own conception of a higher law that trumps all else. Where does it come from? Who established it? And why is their explanation of these things more accurate than mine?

I’d suggest those questions are a lot more difficult to answer than many might think. So by all means, let’s have the debate.

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