The Origin of Rights: Constitutionalism, the Stork and the Democratic Dilemma
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Description
Parents often respond in two ways to precocious questions from children about their origins. Either they avoid the issue entirely, assuring the questioner that he or she will understand some day; or they invent a legendary explanation. I'm neither a child psychologist nor a legal philosopher; but, as a parent who has blundered through the origins issue, I confess to a sense of déjà vu when trying to think about where individual rights in a political democracy come from. I have a strong sense of wonder at the miracle of their existence; but find it difficult to explain the process of creation. Most attempts to probe the paradox of judicially enforceable individual rights (as opposed to what I will call “oughts”) in a democracy seem to share the same difficulty. Either they finesse the origins issue completely by asserting the self-evident existence of individual rights as an inherent result of the nature of things, or they invent legends - some of the most beautiful and ennobling legends in our culture—to explain the miracle. I propose to sketch the roots of the dilemma by summarizing the work of others who have cogently described the tension between a genuine commitment to majority rule and a genuine insistence that areas exist—we call them rights—that are off-limits to the will of the majority, even when that will is expressed with scrupulous fairness. Somewhat immodestly, I will then explain why I fear that the existing attempts to describe the origins of individual rights fall into one of the two “parental” categories—(1) assertions that questions about origins don't really matter since rights exist in the nature of things; or (2) explanations of rights that share as a common theme the invention of a legendary skyhook from which to suspend the rights. Finally, I shall conclude by suggesting that rights may be thought of, not only as free-standing substantive phenomena, but as the real-world consequences of a complex institutional interplay that acts to deflect error—both legally and factually—in favor of certain values by vesting power in an independent and insulated arbiter, often called a judge, whose duty it is to assure that the requisite level of error deflection has been applied by a democratic decision-making body when it decides to trench upon the value. So described, the process of defining and applying legal rights in a democracy bears a close resemblance to another significant check on popular decision-making, the use of sophisticated error deflection mechanisms together with judicially administered checks to impose a degree of control over the jury's power to find adjudicative facts, especially in a criminal case. Briefly—and simplistically—put, I believe, first, that we temper the jury's power to find adjudicative facts with a set of judicially enforced error-deflection mechanisms and control techniques that insulate certain values; and second, that a comparable error-deflection process operates to check the democratic power to find legislative facts and enact legal rules in derogation of significant values. It is in the breathing space created by that complex institutional interplay that I find the origins of rights.
Source Publication
The Role of Courts in Society
Source Editors/Authors
Shimon Shetreet
Publication Date
1988
Recommended Citation
Neuborne, Burt, "The Origin of Rights: Constitutionalism, the Stork and the Democratic Dilemma" (1988). Faculty Chapters. 1346.
https://gretchen.law.nyu.edu/fac-chapt/1346
