RIGHTS

The word “rights” has been used to describe both liberties and claims against others (including “entitlements”). We rebelled against a monarchy that made broad claims of entitlement for itself, and we had run away from established churches that made claims of entitlement for themselves. We understood the limits of government to require the establishment of liberties, and not entitlements, as a natural result of our seminal experience(s).

 
We have attempted to expand liberties and encroach on entitlements by increments, notably including the freeing of the slaves and the expansion of the voting franchise.

 
We have also created entitlements, most notably SS and Medicare. To the extent these were modeled on insurance schemes, they were either intended to, or disguised to appear to, create common quid pro quo legal claims. Common quid pro quo legal claims are often spoken of as “rights”, as well. When I provide you a legal service that you requested, typically I am “entitled” to be paid for it. Thus we have words with mixed usages and should be careful in this conversation to be clear.

 
I concede that a society could adopt a quid pro quo entitlement in which all were charged for a service through a tax and all were entitled to receive it upon reasonable demand.  We have certainly done so in our nation’s history and I think we would find that all free countries have done so in modern times.

 
At this point in my monologue I pause to say that while I understand and can accept “entitlements” of various sorts, I do not place these on the same plane as liberties. I consider entitlements and claims to be less worthy than liberties, although we often permit entitlements to trump liberties. Life, liberty, and property can actually be taken by the state – with due process. The fact that Congress is “entitled” to tax, and the understanding that a government can levy taxes as an inherent power, limits our property rights. That Congress is “entitled” to call us to serve in time of war or national emergency limits our liberty rights. Examples abound.

 
Phrased in the rough manner that I have laid out, “liberties” and “entitlements” are always bound to be in conflict. I accept more in the way of “entitlements” than QB would and I may claim more in the way of “liberties” than he would, based on my reading of QB over time. But I would be just as adamant as he on the general proposition that “liberty” is the higher form of “right”, and while I am comfortable with calling many statutory claims “entitlements”, and many legal claims “claims of right”, I personally have reserved the word “rights” to describe our claims as citizens of a free state to life, liberty, and property.  Recognizing that these rights are bounded and that we can choose to limit them in other ways by creating entitlements is linguistically clearer to me than trying to equate entitlements with liberties.

 

I believe the UN Declaration cited by Yjkt incorporates aspirations for a post WW2 world in ruins.  It is an attempt to invoke the myth of Phoenix rising from the ashes.  As such, it is beautiful.  There is no form of government possible that could deliver on that entire Declaration because of the internal conflicts, and because of the fact of scarcity.  It is better to preserve the liberty rights while attempting whatever limited aspirations we can afford, in the world of limited resources.  Or so Mark opines.

 

I anticipate some here may argue that there are entitlements that are as important as liberty interests, and that some may argue that liberty interests must trump aspirations at every turn.  That debate would be more productive than trying to call everything we might want a “right”.

Religious Freedom Under Attack

A week or two ago, we briefly discussed the future of religious freedom in the Supreme Court, with Mark posing a question about how the Court would deal with laws against polygamy, if such a case came up. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the issue is the existence and scope of the “ministerial exception” recognized by all federal courts of appeal to protect religious organizations from employment-related lawsuits. The Obama Administration has taken the position in its brief filed on behalf of the EEOC (see Brief of Federal Respondents at the link) that there is no ministerial exception under the Constitution, and, as a fall-back position, that if there is such an exception it should be limited to persons “who perform exclusively religious functions” (emphasis added).

This case and the position of the Obama Administration may have sweeping significance to the future religious freedom. Who, if anyone, has “exclusively” religious functions? As some have pointed out, the Pope probably does not even meet this test. If there is no ministerial exception at all, then haven’t we opened the floodgates to lawsuits against churches and other religious organizations, and forever entangled the courts in their affairs? And, stepping back, consider how the ever-expanding reach and proliferation of federal regulation itself creates these conflicts and entanglements. The more the government regulates, the more conflicts with religious freedom it creates.

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