What’s the difference between a “constitutional” right and a “human” right? Are they synonymous? Or do they differ in certain respects?
Constitutional Rights. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” At first glance, these rights seem entirely benevolent, enabling those within our society to express freely their opinions.
As an example, let’s move the clock forward in time. Assume internet providers are one day in the not-so-distant future able to convey messages directly into a person’s brain without their knowledge or consent––say, by way of some sort of biologic-cellular transmission. These providers claim in a yet-to-be-filed lawsuit a first amendment right to do so. No one––not even the most ardent advocates of the first amendment––would contend such an intrusive power could not be constitutionally regulated, restricted, or abolished. To suggest otherwise would be to permit a form of unlimited and unregulated mind-control where others could dictate at will the terms of another’s thoughts.
This is an extreme example, but only in degree. It demonstrates what we already know: there are limits to constitutional rights, even those which seem innocuous. One obvious line to be drawn is: does the right pose an existential threat to society itself? Another is: does the right violate an individual’s right to privacy? But another more interesting question to be asked is: does the right, if exercised beyond its reasonable limit, change our understanding of what it means to be human?
Human rights. We hear this term bandied about from time to time. Human rights are sacrosanct, inviolate––so innate and fundamental to our personhood that others cannot infringe, even slightly, upon them. Human rights are not man made; they exist apart from the will, whim, or dictate of any one man or group of men. “What it means to be human”––simply start by recognizing humankind’s uniqueness, but consider it abstractly, not from the point of view of a scientist or anthropologist. An abstract conception of humanity places human rights at its forefront––as, if not more, essential to its workings and outcome than perhaps any other aspect.
This is why every personal injury plaintiff who files a lawsuit is essentially saying: “You’ve changed who I am from what I once was into who I am now. You had no right to do so. I was before the incident healthy, active, and pain free. You’ve changed me into someone different, someone who now suffers hurt and harm. You had no right to effectuate such a change to my body, to my mind. You had no right––nor was any conferred. Who are you to exercise such power over another without their consent? How dare you presume to possess such power…”
Those who practice in this area know implicitly the durable strength of a rights-based society and how it protects its citizens. What’s the difference between a “constitutional” right and a “human” right? It’s the difference between an acquired and intrinsic power. We err, and err greatly, when we treat the two synonymously. Perhaps the more basic point is simply to recognize that civil lawsuits are, first and foremost, based on the exercise of an entirely “human” right.
Under the present system, we aspire that adjudication be a matter of principle. The aspiration cannot be fully realized, because each of us will think that judges sometimes, and perhaps often, make mistaken arguments of principle. But we gain even through the attempt. Citizens are encouraged to suppose that each has rights and duties against other citizens, and against their common government, even though these rights and duties are not all set out in black-letter codes. They are therefore encouraged to frame and test hypotheses about what these rights are, and to treat one another, and demand to be treated by the state, under the beneficial and unifying assumption that justice is always relevant to their claims even when it is unclear what justice requires. The courts participate in this process, by providing an occasional forum for public considerations of these controversial issues of justice, and by providing leadership whose power is rightly qualified by the force of the arguments it can command. We take a mean view of ourselves if we suppose that this practice is valuable only to the extent that it provides reliable predictions about how official power will be used. Of course, the practice can be, and has been, abused by governments anxious to take the good name of law for tyranny. There are nations in which citizens would be better off if no claim could be made in the name of law that was not drawn from a public book, and there are those, I know, who think Britain and the United States are among those nations. But even they must concede that something would be lost by the change. The rule of law is a nobler ideal than the rule of legal texts.
Quotation from: Ronald Dworkin, Taking Rights Seriously, Pg. 338 (Harvard University Press 1978).
