The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

In reality, rights never could be absolute in this sense. But we might imagine that they could come tolerably close. Thus, it is common in American constitutional law to describe some rights as being subject to restriction only for a “compelling interest,” or something of that sort. And in some contexts, this formulation sometimes seems to mean, or at least might mean, or at least might once have meant, something like this: the government can overrule your right, but only if the security of the nation is in serious jeopardy, or rioting or insurrection are about to break out, or some similarly grave evil threatens. “Compelling” means, well, . . . compelling.

This would be stage two. Your right isn’t something you can act on “though the heavens fall,” but the justification for restriction must at least be somewhere in that general vicinity. Back when I was in law school, at least some people contemplated that freedom of speech was that kind of right. And decisions like Brandenburg v. Ohio, the Pentagon Papers case, and the various decisions in the Nazis in Skokie controversy seemed to give some support to this view.

Something like this meaning might conceivably be viable if rights were relatively limited in number. And at one time, the Supreme Court seemed determined to limit rights– or at least the rights that would be protected by the Fourteenth Amendment– to the really essential ones. Thus, a right would not be deemed incorporated in the Fourteenth Amendment unless it was necessary to “the very essence of a scheme of ordered liberty.” Even historically venerated rights like the right against double jeopardy didn’t satisfy this demanding standard.

This was a severe position, but it had a bracing integrity to it. I like the right against being tried twice for the same offense; I expect you do too. Once a jury has acquitted somebody, it seems fair that the exonerated person should not have to face further prosecution for the same alleged offense. Even so, can you imagine a “scheme of ordered liberty” that does not recognize this particular right? I can. So could the Justices. And so the double jeopardy right didn’t initially make it into the select company of rights that receive the most extensive constitutional protection.

Now suppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights stage two “compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply).

And so we enter stage three. Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

This deflationary conclusion is perhaps most evident in the “proportionality” approach used by courts in Europe, Israel, and elsewhere.   Citizens enjoy all of the numerous “rights” listed in various conventions and treaties. To say that something is a “right,” however, is only to say that government should not restrict it except to achieve an interest of proportional importance. But of course government should never restrict any interest except to achieve something of proportionate or greater value. So what difference does it really make, exactly, whether some interest is a “right” or not?

And indeed, some proponents of proportionality have drawn just this conclusion. Thus, NYU professor Matthias Kumm approvingly explains that

a rights-holder does not have very much in virtue of having a right. More specifically, the fact that a rights holder has a prima facie right does not imply that he holds a position that gives him any kind of priority over countervailing considerations of policy. An infringement of the scope of a right merely serves as a trigger to initiate an assessment of whether the infringement is justified.

(I have taken this quotation from an illuminating essay by Grant Huscroft, called “Proportionality and Pretense,” in the Spring 2014 issue of Constitutional Commentary.)

In the United States, courts do not follow the “proportionality” approach. Not exactly. But the ubiquitous “balancing” practiced by courts here seems not much different. And in any case a similar deflationary tendency is discernible.

Such deflation was starkly evident in the recent, much discussed Hobby Lobby case. On one side of the controversy was the right to religious freedom (albeit in this case that right was grounded in a statute, not in the First Amendment itself). On the other side was the interest– or “right,” if you like– of women to receive contraceptives free of charge (if, that is, they happen to work for a for-profit employer of more than 50 employees that does not have a “grandfathered” benefits plan).

An innocent observer– one transported forward, say, from stage two days when “compelling interest” meant something like the need to protect national security or civil peace– might have thought that the right to religious freedom, long revered, deeply entrenched in the American political tradition, would easily prevail in this conflict. Let us stipulate that women have an important interest in enjoying ready access to contraceptives. Even so, our observer might point out, for decades women have been satisfying this interest (imperfectly, to be sure, as all human interests are imperfectly satisfied) by purchasing contraceptives on their own, or obtaining insurance that covered contraceptives, or working with institutions like Planned Parenthood to obtain them. It was not until a couple of years ago that any legal requirement even existed compelling employers to provide this benefit. And even now most women will not be covered by the provision: the government’s policy itself deliberately leaves millions of women without the benefit. No doubt there are advantages to women in being able to obtain contraceptives free of charge: even so, how can this recently recognized and severely constricted interest possibly rise to the level of the “compelling interest” needed to overcome a long-established “right”?

So our observer might suppose. But he would be mistaken. Although four Justices declined to commit themselves on the issue, the other five Justices declared that the interest in access to contraceptives did count as a compelling interest sufficient to overcome the plaintiffs’ right to religious freedom. (To be sure, four of those Justices also didn’t think any right to religious freedom was substantially burdened in the case; but even if it were, the interest in access to contraceptives would outweigh that right.) Hobby Lobby prevailed only because Justice Kennedy believed the government could easily provide an alternative means by which contraceptive coverage could be afforded.

As of now, in sum, citizens have a right to religious freedom, but this right doesn’t count for much. The right can be overcome by a “compelling” interest, and “compelling” seems to mean something like “non-trivial.” Much of the brouhaha over the decision has centered, of course, on giving free exercise rights to corporations. But the “compelling interest” logic of these Justices would seemingly apply to individuals as well as to corporations like Hobby Lobby. And it would apply as well to a right to religious freedom grounded in the Constitution rather than in a statute. After all, constitutional free exercise rights have long been thought to be defeasible in the face of a “compelling interest.”

To be sure, other “rights” will no doubt be dealt with more respectfully by the courts. The right to abortion, for example, or the ever evolving right to marry. But that’s the point: what matters, in this stage three regime, is not so much whether one has a “right,” but whether that “right” is associated with an interest (or a constituency) that currently happens to enjoy the solicitude of the judges. And thus “rights” come to lose much of their value.

This seems to me a lamentable and even dangerous development. You may regret the proliferation of rights (as I do). You may doubt the wisdom or legitimacy of particular newly-declared rights (as I do). Even so, the historical development of a commitment to protection for certain essential “rights” has been a major achievement in the progress of law and liberty. Rights have been one of the important ways by which people have managed to direct and contain the necessary but potentially oppressive force of government. And the radical deflation of rights forfeits that hard-won achievement.

Steven D. Smith

Steven D. Smith is the Warren Distinguished Professor of Law, University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.

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  1. nobody.really says

    I agree with Smith’s general thesis: The more “rights” we recognize, the less emphasis we place on enforcing any one right. And this provokes a reflection on the meaning of “rights.” The Legal Crits recommend avoiding “rights discourse” in favor of more specific articulations about interests, powers, and resources.

    My version of Smith’s evolution: Historically might made right. This rule favored mighty people at the expense of everyone else. The concept of “rights” evolved in contravention of this dynamic. It had the effect of harming the interests of the more mighty people and promoting the interests of the less mighty.

    Yup, people from the past would have found the Hobby Lobby litigation baffling. They would have been astonished to see women and blacks on the court. They would not have regarded it unusual to punish people by having them drawn and quartered. They would be surprised that government intruded in the traditional property rights of white males: to own slaves, to rape their wives and beat their kids, to dump sewage into the rivers and soot into the skies, to engage in sexual harassment in the workplace, to rent residential property to people in any condition the landlord chose, to retain child labor, to pay whatever wages the market would bear, to discriminate in employment, rentals, and public accommodations on the basis of race, creed, class, physical disability, etc.

    The point at which you think this dynamic has gone too far is heavily influenced by where you are in the hierarchy of might. Where you sit determines where you stand.

    • R Richard Schweitzer says

      “Historically might made right.”

      No, it did not.

      Historically, might imposed obligations and those obligations imposed on some (the weaker, the conquered) comprised the rights of those with might.

      Where the powers of “might” were relative; the “rights” among those powers were relative.

  2. nobody.really says

    As an aside, I don’t characterize the Hobby Lobby case the way you do (or, indeed, necessarily the way the Justices did either), so I draw different conclusions about it.

    For better or worse, health care costs in the US (and most industrialized nations) are largely socialized, and thus we each have an interest in how our neighbor consumes heath care. The ACA in general, and the birth control mandate in particular, are designed to promote the compelling state interest in efficiency – not wasting money. Even if we put aside the government’s interest in promoting the general welfare, government has an obvious interest in managing its own budget – and health care costs are a large and growing portion of that budget.
    As a secondary matter, the birth control mandate promotes gender equality. But the ACA is not primarily a gender equality bill, and I have to conclude that people who understand the birth control mandate solely in terms of gender equality and “women’s rights” – as Smith seems to — are misreading the bill, and thus the issue.

    In contrast, Hobby Lobby had no more religious interest at stake than does any other tax protestor who objects to how funds get spent. The insight that government can compel a private party to pay money for purposes the private party finds objectionable would not have surprised Henry David Thoreau, so I’m at a loss to understand why Smith finds it novel. We can say that this kind of religious interest should prevail over the state’s interests. But if so, then a LOT of tax protestors should be entitled to a LOT of relief – and we should probably expunge Thoreau’s arrest record.

    • R Richard Schweitzer says

      Fundamental to the errors in this comment is the acceptance of the judicial construct of “governmental interest” or “state interest.”

      That is a continuation of the journalistic convenience of personalizing the collectivity represented by the mechanisms of government and the embodiment of authority that comprises the state.

      Government is not a person, the state is not a person. Only individual persons have interests, individually or in common with other individuals. In our social order individuals express those interests through a democratic process of representation, not by acceptance of diktat from “authority.” Thus, the concept of actions of governments or states as **the** collective interest falls under Arrow’s impossibility theorem.

      ” Arrow’s impossibility theorem states that a clear order of preferences cannot be determined while adhering to mandatory principles of fair voting procedures. ”

      It bears reminding that the “mandate” referred to in this comment was not statutory, was not “voted upon; but, was an obligation imposed by an exercise of bureaucratic discretion upon some to provide specific benefits for others, in accordance with the judgment of unelected and non-representative administrators as to what might be in the interest of particular segments of the body politic and the means of serving that interest.

  3. Nancy says

    I suppose if it was not clear that the “statute” served to complement The First Amendment, perhaps it is because the “statute”, in essence, served as a compromise, not a reflection of the spirit of the Law. If you are presenting with two conflicting “rights”, they cannot both be, in essence, inherent rights.

  4. Devin Watkins says

    I think this is the result of a failure to understand the difference between natural rights and positive rights and lump them all into the “rights” category. Natural rights are those rights that pre-exist government, they are the unalienable rights talked about in the declaration of independence.

    Natural rights are all those things which a person chooses to do in which all the people involved consent. No person has a natural right to harm another person or violate their rights. I have the right to swing my arms around in the air, until my arms are about to hit your face, then I clearly don’t have that right to swing my arms around into your face. And those interacting with property owned by another involve that other owner, I don’t have the right to destroy your house when you aren’t around. Natural rights should be absolute protections like you say “though the heavens may fall.” But they don’t extend to all things. A person has a natural right to freedom of speech, but that doesn’t extend to libel and slander. The speech at that part has now has involved the other non-consenting person at that point and could harm them and so is no longer a natural right.

    Positive rights are those rights granted by government. The right to trial by jury, a grand jury, subsidies, etc. are all positive rights granted by government. They necessary involve government and therefore cannot be natural rights. Government decides what positive rights to grant and can decide to revoke them at any time. Some of these positive rights are granted by the constitution and cannot be changed without amendment (like the right to trial by jury rather than a judge). But they only extend as far as government wanted them to extend (when it created the right) and can be abolished.

    In the hobby lobby case, one side was asserting a positive right created by government (to be provided free contraceptives of any kind), while the other side was expressing the natural right to just be left alone and not be forced to pay for something they found morally repugnant.

    • nobody.really says

      Natural rights are all those things which a person chooses to do in which all the people involved consent…. [T]hose interacting with property owned by another involve that other owner, I don’t have the right to destroy your house when you aren’t around.

      Property would seem to be the antithesis of natural rights. Contract rights bind the people all and only those people who consent. In contrast, property rights purport to grant rights against the entire world, no consent required. If I claim a property right in a piece of land, I claim the right to expel everyone and anyone from it. And the fact that you may not consent – indeed, that you may not even have been born at the time I staked my claim – is of no relevance.

      And this shows the pitfalls of a philosophical scheme that is opposed to coercion, yet embraces property rights. By what mechanism can I persuade people not to trespass on my property other than coercion? I couldn’t enter into a contractual relationship with everyone in the world even if I wanted to, because new people are being born all the time. And there is little practical mechanism to buy people off, because I’d just create an incentive for more people to come and demand a pay-off. Coercion would seem to be the sole mechanism available to me.

      • gabe says

        “property rights purport to grant rights against the entire world, no consent required”

        Not quite!!! The theory is that my labor on an otherwise un-used or unclaimed piece of land is what granted me the right to that property. It is only ” natural’ that this is so, and has been so held for time immemorial. Yes, one may take this from me by force and yes, civil society may then “counter-force’ to protect my “sweat equity” but this is not the same as saying that basic property rights are purely based upon coercion.
        In short, it is a recognition that it is only natural (generally apprehended by human beings) that I am entitled to the fruits of my labor. Unless, of course, one does not believe that humanity is the “productive” animal. This holds true whether I acquire land via sweat equity or via a big fat check to some local real estate baron. I must have done something to gain the capital to purchase.

        As to whether or not the unborn are consulted or have consented, we may as well ask whether some being in a far away galaxy has consented. Your argument against a overbroad philosophical justification may be used against this “unborn argument” as well – it is beyond overbroad – it is “timeless”!

      • R Richard Schweitzer says

        This comment appears to rest upon a misconception of “property.”

        The concept of property is not confined to the occupation, possession of, or authority over some particular piece of land or material (including intellectual) substance.

        A more concise concept of property is that of a relationship of an individual with something of a material or intellectual substance. The “right” in and to that **relationship** is contingent upon the commonality of the recognition, acceptance and performance of the obligations of all others in regard to that particular relationship of an individual with a material substance. The performance of the obligation is generally observed in constraints of conduct, basically “non-interference.”

        The rules of relationships in the social orders developed by mankind over time can be observed to have varied. As recently as Roman Law, familial relationships were regarded as equivalent to “property.” Slavery continues through current times as a relationship between individuals that constitutes “property.” At one time in civilized history that relationship was considered “natural.” (See, Aristotle)

        Perhaps we might come closer to understanding what is “natural” and what is not in our perception of “rights” if we examined more closely the nature of the obligations necessary, recognized and accepted with sufficient commonality to support them.

        • gabe says


          Let me offer a qualified disagreement with your position.
          All of what you say is correct – yet it does not< I think, address my position.

          It would seem as if your comments are, as always, truly on point. The issue is "what point" in time. It seems to me that what you are describing both the necessary and sufficient conditions that must obtain for the MAINTENANCE OR SUSTENANCE of property – not its origins or its ultimate justification.

          To my mind, property is a logical, if not preordained (not religious sense), outgrowth of human individuation and self identity. As we define ourselves as unique beings, (don't want to get into psychobabble, here) we also tend to identify with, and extend ourselves to, those material (or intellectual) transformations that are the result of our own creative efforts. Even in the animal kingdom there is a certain element of this as attested to by the mole in my lawn who will not tolerate my interventions or another moles'.

          Yet there is a distinct difference between listing those conditions necessary for maintaining my "property interest" against intrusion / usurpation and apprehending the conditions / motivations and general human sensibility toward the products of our productive / creative efforts. While I may take my auto in to the mechanic for maintenance, the fact that he is able to fix it, does not give him property rights in my vehicle nor in any diminish my claim to it.

          Hopefully, my compressed comments here are somewhat intelligible.

          Take care and good to see you back. I was getting worried.

          • R Richard Schweitzer says


            As this site is being reconstructed it appears that replies need to be addressed as you have almost always done. I was trying to make a reply to The comment by “Nobody.” So, you are correct, I did not address your position.

            The point being that if one regards the “right” at issue as one of a relationship for which there must be a commonally observed and performed obligation, that is as “natural” as any other “right.”

    • R Richard Schweitzer says

      “Positive rights are those rights granted by government. The right to trial by jury, a grand jury, subsidies, etc. are all positive rights granted by government.”

      That kind of statement, unless it be taken as a form of “shorthand,” is representative of some of the major popular misconceptions of the developments in our social order.

      Those concepts which are referred to as positive “rights” are actually obligations imposed upon some to provide benefits, amelioration of burdens, privileges and immunities and specified relationships with and to others.

      Those impositions of obligations are not “granted by government.” They are imposed through the political process using the mechanisms of government for coercive enforcement.

      “The right to trial by jury, a grand jury . . . are all positive rights granted by government.”

      No they are not. They may be “secured” or protected through the form of government established in a particular social order; as in the case of the United States Constitution; but, they exist out of the commonality of the recognition, acceptance and the performance of obligations of the members of our social order (as it has evolved) in their relationships with one another. See, Maitland.

      All “rights” however categorized are tied to obligations of actions and constraints. Even those conceived of as innate, necessary to existence, to breathe, to drink, to eat may terminate by a failure of obligations. One may determine to roll across the Atlantic, be capsized and cast adrift in the ocean without food or water and perhaps without Williams support. The result of avoidance of risk or lack of prudence can result in the physiological endings of thirst, hunger and drowning ending breath.

      Rights which are generally observed only within social orders or groupings (and then limited by species) are all contingent upon obligations which include constraints as well as actions. The rights of some may be contingent upon the performance of obligations of others. How those obligations come to be established determine the nature of the social order. Where they are established by a commonality of recognition acceptance and performance (particularly those of restraint) we may find evidence of the highest degree of individual freedoms. Examinations of the various forms of social groupings, families, clans, tribes, coalitions and forms of cooperative endeavors will reveal the role of obligations in all structures.

      • Devin Watkins says

        Everyone always has the inalienable right to life, but that doesn’t mean you have the ability to live forever. Rights are not things about the state of being, they are as you say “obligations of actions and constraints” upon how other people (or organizations like government) can act. If you die in the middle of the ocean because you were capsized, your rights were not violated. If someone shoots you and you die, your rights were violated because the person acted to take away what you had the right to have (your life).

        Natural or inalienable rights are those rights which are “self-evident” or in other words derived from reason and logic as to what a person is. They include all things in which all individuals involved consent. They include your right to life, your ownership over your own body, your right to acquire ownership of previously un-owned property through your own efforts to improve that property, your right to enter into contracts with others including the transfer of property. You can never have a natural right to violate the natural rights of another individual and in this way they are always non-rivalrous (you don’t compete with others for natural rights). Notice that natural rights never impose obligations of actions that are not consented to by the individual being obligated (via contract), they do include prohibitions on actions which harm others. Our constitution does not create natural rights, it protects them.

        The rights to trial by jury or a grand jury are not natural rights, there are plenty of governments that could exist which do not provide these rights. Even in the united states, for state crimes you don’t have the right to a grand jury right now. Nor do you have the right to a 12 person jury like you do at the federal level (for instance George Zimmerman was tried by a 6 person jury). Many trials are done by judges instead of juries. And there is nothing unjust about a government that doesn’t provide jury trials. One might say that having a trial of some kind by a neutral arbitrator might be a natural right, that is at least very close to a natural right. Similar to not being judged based on ex post facto laws. Both of these have to do with the inherent idea of justice and fairness. But grand jury or trial by 12 other citizens is not necessary to exist, and as such cannot possibly be considered a natural right (which are rights that pre-exist government). That doesn’t mean you don’t have the right to a grand jury in a federal case, but it derives from the constitution which created it not from anything pre-political, or in other words it is a positive right granted by government and it extends only as far as those that crafted the constitution wished it to extend (ie to a 12 person jury not a 13+ person).

        Maybe one day we will decide to abolish the grand jury procedure, or extend our trials to 20 person juries (to be really sure someone was guilty), there is nothing wrong in that it just requires a constitutional amendment. But there is something inherently wrong with abolishing the first amendment as it is the refusal to protect a natural right (which is the purpose of government).

        Clearly positive rights are “imposed through the political process using the mechanisms of government for coercive enforcement” that’s how the constitution (or its amendments) are created and enforced. I mean maybe you could make the claim that it was the constitution itself which created the right rather then government (it would accept that notion), but clearly they derive from the constitution being accepted by the people of the united states. Natural rights are different, even if we amended the constitution to eliminate the first amendment, it would still be wrong to enforce laws restricting the freedom of speech because that right was not created by the constitution but pre-existed.

        • says


          “That doesn’t mean you don’t have the right to a grand jury in a federal case, but it

          **derives from the constitution which created it not from anything pre-political,**”

          If you have a serious interest in the origins of Grand and Petite Juries or of the “jury system” itself (an Anglo-Saxon “derivative” for fact determinations) please at least scan a copy of Maitland’s ” History of English Law Before the Time of Edward I”.

          My legal studies began with Common Law pleading and Equity practice almost 65 years ago, from which background I hoped to disabuse you of a serious misunderstanding. You might also become familiar with the process of a “Presentation.”

          As to the other points: Perhaps a shorthand way to put it is that the obligations of constraints that support or confirm the relationship of “Property” are just as “natural” as those which support the sanctity of life. That does not infer the existence vel non of difference in priorities of obligations as motivations.

  5. gabe says


    Well said!

    It seems that sometimes the Obama Administrations assertion of positive right above and over natural rights (such as they are) is a calculated “in your face” attempt to further diminish those ‘natural” rights that the Left holds in contempt (except of course when it applies to them).


    You seem to be making the authors very point. The proliferation of these “conjured” positive rights do indeed have the effect of diminishing those more basic “natural” (again, such as they are) rights and will lead inexorably to the diminishment of even the positive rights that the Left holds so dear.

    Also, is there not a difference in Hobby Lobby versus the other tax protestor cases in that with the other cases the State serves as the intermediary dispensing the tax dollars whereas with Hobby there is a clear line between the objector and the objectionable conduct. Perhaps a small yet significant difference.

    • R Richard Schweitzer says


      To put it more exactly, the continuing imposition of increasing obligations through the use of the mechanisms of governments, impedes, limits and ultimately displaces the performance of those obligations which have been essential to the nature of our social order.

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