Recently, this author was asked about how to identify a true Civil Privilege (often called a “right”) and a phony, or faux, civil privilege. This is a great question worth answering.
Although this has been covered at this website a few times, the principles are never outdated, and are definitely worthy of reminder. After all, if someone starts wrong in their search for the true principles, it is likely that they will end wrong. Without understanding fundamental principle correctly, it is hardly possible to understand it’s applications correctly. A tree doesn’t survive after being separated from its roots.
Before the answer to that question is able to be understood adequately, one must consider the foundation behind the answer. One must first understand what a Fundamental Right is before they can then identify good privileges that extend from those fundamental rights.
What is a Fundamental, Natural Right?
The 1828 Noah Webster Dictionary defines the word “right,” in part, as: “A just claim”, “That which justly belongs to one,“ as well as “Authority”, or “legal power”. Therefore, for a right to be considered fundamental, or unalienable, as the Declaration of Independence states, they would have to be “just claims” that naturally come as a result of one being human in the first place. These are claims that cannot be logically, or even physically, separated from one’s conscious self.
As the great Thomas Paine stated so succinctly: “Rights are not gifts from one man to another, nor from one class of men to another. . . . It is impossible to discover any origin of rights otherwise than in the origin of man; it consequently follows that rights appertain to man in right of his existence, and must therefore be equal to every man.” (Quoted in The Freeman, Nov. 1959, pg. 66)
Therefore, Fundamental Rights are those rights which everyone can simultaneously claim and/or exercise without forcing another to serve their needs or purposes. These rights reside equally in the humanity of every person. These rights are equal in two equally important ways:
1) equality of existence of those rights in every person; There is no person that is an exception, both being part of mankind and lacking fundamental rights.
2) equality in the value of those rights in every person; The rights in one person are no more or less valuable than the rights in any other person.
It is impossible to strip, even with “consent”, one’s self from these rights. It is impossible for anyone, or any group, to strip another of these fundamental rights. They are ours.
Difference between the Existence and the Exercise of Fundamental Rights
Although Fundamental Rights are unalienable, the exercise of those rights, as should be apparent, are not. The exercise of those rights are inalienable, and should be respected as such in any civil society. The difference in definitions is crucial on this point.
Inalienable is defined “as incapable of being surrendered or transferred; at least without one’s consent.” (Morrison v. State, Mo. App., 252 S.W.2d, 101, author’s emphasis added)
Unalienable means “incapable of being alienated, that is, sold and transferred.” (Black’s Law Dictionary, Sixth Edition, pg. 1523, author’s emphasis added)
The difference between the two may seem small and inconsequential, but the truth is, True Understanding is often realized in being able to apply general principles in the details, and to the extremities.
Remember, since there is no way, even via the State, to strip mankind of the rights that are natural to their existence, then it should logically follow that infringements on those rights do not take away or strip people of those rights; Tyranny, or even Ignorance and/or cowardice, in any form, merely infringes on the people’s ability to exercise those rights. Simply put, no one and no thing can possibly take away people’s rights; They can only infringe on their ability to exercise them. The same goes for our choices in relation to our own rights, even outside of the context of civil government.
In this context, the common phrase “You have no rights you aren’t willing to fight for” has real meaning. Sure, the wording may be problematic, since once again there is no way to strip someone of the rights that are theirs, but understanding how the exercise of rights is inalienable, it is a real duty to ourselves to exercise those rights when it is appropriate, regardless of how inconvenient the circumstances may be. This, in turn, helps to ensure the protection of that ability to exercise those rights, which, as may be clear at this point, is the real battle for freedom.
To fight a battle over the “existence” of rights which are self-existent makes about as much sense as starting a movement to help aid the Law of Gravity’s existence. Obviously, that is not what the battle truly is, or even should be, about. Those rights simply exist. Even ignoring that to be the case does not effect the reality of that fact. The battle is over the intellectual awareness of those rights’ existence, actually exercising those rights regardless of consequence, and the physical ability to exercise those rights without tyranny coming as a consequence, even via the State.
Fundamental Rights and DUTIES
Every Right has an associated Duty, or responsibility. They are two sides of the same coin. In fact, fundamental Rights/Duties are as inseparable from each other as they both are inseparable from humanity itself. Therefore, the fundamental duties which attend every fundamental right are likewise unalienable. These duties are how those rights relate to other people.
The Noah Webster 1828 Dictionary defines “Duty,” in part as: “That which a person owes to another; that which a person is bound, by any natural, moral, or legal obligation, to pay, do or perform.” It is the obligation towards other people that will be the focus of this article. One has a duty to self when it comes to the rights that are theirs, but when talking in a legal context, we are referring to the Duty that involves other people and their rights.
[In fact, as a side note, since the individual person is the true sovereign (when speaking in the context of peers here in this earthly society), then it should be the logical conclusion that the government is only justified in being used for action involving at least two parties, itself (“the State”) not included. It could be used for arbitration in a dispute between two sovereigns, of which one was voluntarily using their service to aid them in perhaps gaining reparations for harm done. As was succinctly stated by Thomas Jefferson in his quote taken from his Notes on the State of Virginia: “The legitimate powers of government extend to such acts only as are injurious to others.”]
For example, along with someone’s right to life naturally comes the duty to respect everyone else’s life, and likewise, everyone else has a duty to respect theirs. Along with someone’s right to pursue happiness comes the duty to not infringe on anyone else’s right to do so, just as everyone else has the same exact duty in relation to them. As Thomas Jefferson stated in a letter to Isaac H. Tiffany, “rightful Liberty is unobstructed action according to our will within the limits drawn around us by the equal rights of others.”
The Declaration of Independence itself even outlines the fact that there is a right, and duty, for mankind to alter or abolish tyrannical government. The right is about “me” so to speak, the duty is about “others”. If a government that represents you, in any way, is acting tyrannically, then there comes an associated duty to alter or abolish the government that is infringing on the rights of other people. This makes even more sense when people understand that anything government “gives” it takes, and that every state measure involves force.
Therefore, a fundamental natural duty to others is only a duty which one owes everyone else simultaneously because no one else owes them a service towards their own needs, goals, or purposes. In fact, this understanding and how it should play out in civic society was touched on by Jefferson, as stated in another letter, this one being addressed to Francis Walker Gilmer: “No man has a natural right to commit aggression on the equal rights of another; and this is all from which the laws ought to restrain him.”
It is in the understanding of these duties that the true understanding of rights actually can come. It was wisely put by legal scholar H. Verlan Andersen, “Unless there is someone who can be compelled to do or refrain from doing something to give the right meaning, it has no substance.” In fact, it is from these actions that necessarily infringe on the rights of other people that civil government may legitimately aid in being a force to deter, by reaction, such activity in that society. Thus, government becomes a force to prevent injustice from reigning, thus causing a situation more in harmony with justice itself.
It is when these duties to other people are not acted out that the law, and civil government, can be justified in aiding people in attaining the reparations that are naturally owed to them, whether that action was criminal (with intent), or even an accident (civil).
Acquired Rights (Privileges)/Duties
Through the exercise of our fundamental rights, we can often acquire new privileges, or rights (“just claims”) in our relationships with our fellow man. This can come through Contracts, for example, where the two knowing, consenting parties can agree to certain terms within which are found acquired rights and responsibilities pertaining to those parties. These are acquired contractural rights/duties.
The branch of acquired rights pertaining to the original question that inspired this article comes via written social compacts. Social Compacts come through in two very different forms;
1) A form which is natural and is perceived as more implicit
2) Another form is man-made and may be considered more explicit, perhaps even written – and which is only valid as far as it is in harmony with the first form, or the natural social compact.
The first is found naturally, even absent a more organized social structure. This recognizes Natural Law, and the Golden Rule Standard of human interaction, even when it comes to disputes between those persons in society – Do not do harm unto other people, just like you don’t want to be harmed by other people. This Law of Nature needs no aid in its existence by earthly government. It simply exists, and obligates everyone to respect everyone else’s Rights as they exercise their own.
The second is found with such things as constitutions, both written and unwritten, as well as statutory codes derived from those constitutional frameworks – which statutes are likewise only valid as far as they are in harmony with the constitution – which Constitution itself is only as truly valid as far as it is in harmony with Natural Law. Thus it should look something like this mentally, with greater importance working its way from right to left:
NATURAL LAW – – Constitutional “Law” – – Statutory “Law”
Natural Law being the foundation and self-evident reality which encompasses the truth of fundamental rights/duties.
Constitutional “Law” is only Law in substance as far as it is in harmony with Natural Law. [And even then, it is more of a framework for “law”, or good statutory authority, since there are no active or prescriptive punishments for violations thereof, unlike statutes being applied to the common man. In this sense, the Constitution is no law at all.]
And then Statutory “Law”, or statutory code, is only going to be as valid as Law as far as it is in harmony with both the Constitutional framework, and Natural Law itself. [This is something that must be analyzed by not only analyzing the direct authorization for the passage and enforcement of such a statute, but also in analyzing to whom the statute can or cannot apply.]
Without this correct understanding, students of the law will often go astray, and will confuse lawful authority with the abuse of power. They will often hold statutes in high regard, without questioning their validity upon the basis of which the ability to make statute originated. Even many who hold the Constitutions in high esteem sometimes fail to judge and evaluate the extent of their validity upon the social compact and Golden Rule Principle, or Natural Law, upon which it was supposed to be founded.
Three inter-connected Areas of Evaluation
With the correct understanding of the basis upon which true civil rights and duties exist, we then can analyze the direct answer to the question of how to discern between true and faux civil rights and duties. The process of evaluation may follow these three points:
First, seek to intellectually understand the Social Compact and Golden Rule Principle which are the Natural Law basis for human interaction. This assumes the supremacy of the individual Right and Duty, and takes into consideration how those rights/duties apply to other people in a way that is in harmony with truth and logic. Ask yourself what you, as an individual, could morally interact with others in a state of nature before you even begin to consider how that could legitimately extend into the social structure itself, via government and/or the State.
Second, analyze the social framework and rules the government, or governments, that currently exist(s). In the American system, this would be found in the Charters, in the Constitutions of the several states, and the US Constitution – depending on which government/state you are analyzing, and which issue you are researching. Keep in mind that the states created the federal government, and not the other way around, and that most constitutional issues impacting you directly will/should occur at the local/state level.
[Note: Charters act as a constitution for a local government. Many local governments, instead of being charter cities, actually incorporate, and become corporations of the state. In this case, the rules/regulations would be found in the state statutes pertaining to those entities.]
Third, analyze the appropriate statutes and case law pertaining to whatever issue you are researching. Remember that the legislature passes the statutes, but the courts interpret them. Both must be considered for a complete understanding of the reality of the situation – always keeping in mind the first two areas of research and constantly evaluating those basic principles with which the statutes are supposed to be in harmony.
Thomas Paine’s great answer to the Question at hand
Thomas Paine, one of the most inspired founders, who can honestly be considered the Father of the American Republic, wrote on the topic of fundamental rights and duties in his essay The Rights of Man. His words on the subject are worthy of quotation at some length, with this author’s emphasis and commentary thrown into the mix:
“Hitherto we have spoken only (and that but in part) of the natural rights of man. We have now to consider the civil rights of man, and to show how the one originates from the other. Man did not enter into society to become worse than he was before, nor to have fewer rights [“recognized” is a word I would add here, since his “natural” rights are unalienable] than he had before, but to have those rights better secured. His natural rights are the foundation of all his civil rights. But in order to pursue this distinction with more precision, it will be necessary to mark the different qualities of natural and civil rights. [This author uses the word fundamental instead of natural, merely for purposes of semantic precision. True civil rights, being an extension of fundamental rights, are also natural, are they not? That being said, the concept behind Paine’s use of the term “natural right” is correct and is the same.]
A few words will explain this. Natural rights are those which appertain to man in right of his existence. Of this kind are all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. [Thus, Paine himself also emphasizes rights’ corresponding duties] Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection.
From this short review it will be easy to distinguish between that class of natural rights which man retains after entering into society and those which he throws [“extends” is the word this author would use, since there is less implication of separation] into the common stock as a member of society.
The natural rights which he retains are all those in which the Power to execute is as perfect in the individual as the right itself. Among this class, as is before mentioned, are all the intellectual rights, or rights of the mind; consequently religion is one of those rights. The natural rights which are not retained [“actively exercised” may be the what this author would put in place of retained], are all those in which, though the right is perfect in the individual, the power to execute them is defective. They answer not his purpose. A man, by natural right, has a right to judge in his own cause; and so far as the right of the mind is concerned, he never surrenders it. But what availeth it him to judge, if he has not power to redress? He therefore deposits [a word similar to the meaning behind the word “latent” would be more correct to use here, since it is more a state of hibernation than that of separation] this right in the common stock of society, and takes the ann of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.“
Thomas Paine then continues by outlining the following conclusion, which is as good an answer as any to the question of how to analyze civil rights/privileges:
“From these premisses two or three certain conclusions will follow:
First, That every civil right grows out of a natural right; or, in other words, is a natural right exchanged. [“Exercised” would be the word that this author would use, since the word “exchange” still holds the caveat that one separates himself from the right itself]
Secondly, That civil power properly considered as such is made up of the aggregate of that class of the natural rights of man, which becomes defective in the individual in point of power, and answers not his purpose, but when collected to a focus becomes competent to the Purpose of every one.
Thirdly, That the power produced from the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself.”
Thus, with this conclusion, Thomas Paine essentially logically applies the principles behind the Declaration of Independence in his analysis of civic society generally. The civil power is to help people be more efficient in the exercise of those rights inherent in mankind. Yet, if the civil power is ever used to violate the fundamental rights that first legitimized it’s existence in the first place, then it would follow that it is then the right and duty of the people to alter or abolish such a system.
Therefore, ask yourselves in your analysis of civil privileges and duties if there is a fundamental right which is being better secured by the existence of it. Ask yourselves if it is in harmony with the Constitutional framework. Ask yourselves if it is causing a more free society to result, as opposed to infringing, or even uselessly burdening, the rights that they were ostensibly supposed to protect. Ask yourselves if mankind is better as result, or if it is just a burden that is not really a boon on the individuals that make up society.
It should now be apparent that civil rights (“just claims”) that come as a result of the social compacts should be recognized as equal to every person in relation to that governmental system. It should therefore be based on the same kind of principles of equality pertinent in a discussion about fundamental rights/duties.
Civil Rights should never be based on a variable that is, in view of the current moment, out of the control of the individuals to whom the variable may apply. It shouldn’t be based on gender, race, nationality, or anything of the sort.
They should be based on humanity, with basic protections coming as a result of the structure and procedures of the civil authority, of which all men to which the constitutional framework would apply would benefit. This is what was originally meant with the term: general welfare. Notice, it never stated particular welfare that benefits some at the expense of others. This standard is just. This is moral. This could be rationally desired, and morally implemented.
In Conclusion: Some Quick Examples
Society itself is a privilege often worth enjoying. No one has a right to force others to associate with them; therefore, society, and any structure created for the society itself such as a representative government – with the associated civil privilege of voting or electing – is in the realm of privilege, and not entitlement based on humanity, in and of itself. The corresponding duty that would naturally come with society is, as was mentioned earlier, based on the implicit Social Compact and Golden Rule Standard that forbids the intentional harm towards others, and “requires”, so to speak, reparations for harm even done unintentionally.
Another obvious example of a good extension of a fundamental right into a civic capacity would be the hiring of a sheriff to aid in the protection of rights in society. This is a structure that itself is a civil privilege which benefits the members of the society so protected. Yet, if the sheriff then turned and infringed on the very rights that they are to protect, then that would be an abuse of power that should be addressed and resolved. Criminal activity is no less criminal if done with in the name of government, including any sort of badge.
Remember, with these civil rights come civil duties to support these institutions. The Civil Privilege associated with Sheriff aid in personal protection comes with the duty to help him in that process, including the compensation for his time in so serving.
Many other types of examples are found either in the Constitutions themselves, or in the statutes and are sometimes even more specific applications of various explicit constitutional protections. Many of them are procedural, while others involve other people.
A couple examples that involve other people would be the “right to counsel” in criminal cases when the accused has no way of providing for it themselves (which would involve compensation at the end of the trial should there be a verdict in their the defense’s favor), or the “right to jury trial” (with the duty to perhaps be on a jury, or to perhaps compensate them for their time).
Then there are a couple that are more procedural, such as the right to not have to testify against one’s self, and the right to not be tried for the same offense twice. There are more civil rights that are found in the procedural sense, than in the sense of involving other people for a reason. Remember, no one has a right to a service provided by somebody else. Therefore, rules tend to be a better way to secure rights in the current system.
Civil rights often protect what are termed “privileged associations“. Such would be the case with “Spousal Immunity” as found in the Article 1, Section 12 of the Utah Constitution, which forbids the state from forcing a husband or wife from testifying against each other. This, obviously, protects the association of marriage. The attorney-client privilege would be another example of one of these privileged associations.
In the context of the US Constitution, examples of these things would be things such as the “Journalistic Privilege” derived from the press protection found in the First Amendment – a protection that is supposed to protect journalists and the association between them and their sources. This statutory protection was designed to give that constitutional protection meaning in civil procedure. This civil privilege, like many others, is under attack today in the Federal Government’s war on journalists and whistle blowers.
Another good example would be the Exclusionary Rules of Evidence designed to give the Fourth Amendment meaning in civil procedure. If evidence is taken without a proper warrant, that evidence should not be admissible in court. This, as is obvious, protects the fundamental right to be left alone, gives the Fourth Amendment meaning, and shifts the incentive structure in law enforcement to be more in harmony with the underlying premise behind having a police power.
Once again, any form of this type of analysis depends on which government and/or constitution you are studying. For example, don’t make the mistake of acting as if a Utah state official is violating your “First Amendment” Right of Free Speech, whatever the circumstances may be. The First Amendment applies and is supposed to restrict the Federal Government and it’s actions, not your local and/or state government. To be precise in your protestation, be sure to understand first, your rights which exist naturally, and then the constitutional protections that apply in the area with which you are dealing.
In terms of bad examples, there are all too many. How can anyone have a right to a service provided by someone else via force? The question answers itself for anyone sensitive to the issues of individual freedom. Therefore, many public services, including “free” public education, and the array of welfare schemes would necessarily fall into this category as currently constituted, at all levels of government.
I hope that this article helps in promoting a more correct understanding of Rights and Duties, especially to those who may even claim to even want to be a “fighter for freedom.” But, ultimately, the rise or fall of the cause of freedom depends on our ability to understand, teach, and act in harmony with the true principles of freedom. But ultimately, it is entirely up to us.