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Modern American rights claims: An avoidable clash of absolutes


As our executive and legislative branches descend into new depths of partisan conflict and gridlock, advocacy groups are turning ever more frequently to the courts to resolve issues that regular politics cannot. We currently await high-court pronouncements on such hot-button issues as gun rights, immigrant rights and the travel ban, and a balance of religious freedom and LGBT rights.

But the legal system itself is not immune from the same extreme and absolutist language and views that has come to characterize our politics.

{mosads}Competing social groups wrap their causes in the lofty language of the Bill of Rights, and insist on the absolute priority of their rights over all others. We must choose, we are told, between gun rights or victims’ rights, religious rights or sexual and gender rights, freedom of speech or reputational rights. But such absolutist advocacy — my right or group should always win — seriously overlooks the history of rights reflected in the text of the Bill of Rights itself.

History shows rights to be a community affair — no right absolute, but a collection of values that must be weighed, balanced, and carefully calibrated. The commitment to the overall system of rights is as important as the belief in any single right. My constitutional law professor made this point by asking us what “the freedom of speech” meant in the First Amendment. I had never thought about the significance of that article, but could see that it did more than simply protecting “freedom of speech.” The article conveyed the idea of a regulating set of principles surrounding the idea of free speech. Protecting “the” freedom of speech also incorporated long-standing common law principles about the limitations of libel, slander, and reputation.

This balancing of rights and values was seen even more explicitly in the religion clauses. The First Amendment did not just protect the “free exercise of religion,” but also forbade laws “respecting an establishment of religion.” The two clauses meant that neither could be interpreted in an absolute fashion; rather, they must be weighed in some kind of tension and balance. Thus, the Masterpiece Cakeshop, which pits a Christian baker’s rights of conscience and expression against the non-discrimination rights of a gay couple, must involve a careful balancing of rights and fundamental values.

A similar balance is also seen in the Second Amendment’s right to “keep and bear arms,” which is put in the context of the importance of a “well-regulated militia” to the “security” of the state. The individual aspects of this right to arms must be understood in the context of the right of society to “well regulate” the use of those arms for the “security” of all. This delicate balance must inform the high Court’s decision in Peruta v. California, a case about whether there is a right to carry concealed weapons outside one’s home.

This same pattern of balancing of values can be seen throughout the Bill of Rights, as the rights of individual privacy give way to public security concerns in the face of particularized search warrants; life, liberty and property are protected from arbitrary or lawless intrusions; and the rights of victims and the accused are balanced through procedural protections.  

This idea of the community of rights is brought to its height in the Ninth Amendment. Here it is acknowledged that the community of rights extends beyond those listed in the Constitution. That the rights listed in the Constitution should not “be construed to deny or disparage others retained by the people.” It reminds originalists and living constitutionalists alike that we are meant to interpret the Constitution in light of the community of rights, both internal and external, in which it itself was formed.

This all means that the wrong position on a host of constitutional rights questions may not be primarily how one comes down on the issue; but rather in the manner in which the position is held. The wrong position in all these cases involving a clash of fundamental rights is the one that says these are easy cases for the Supreme Court. Those who admit the difficulty of the balancing of the values involved have it right, however they may come out on the merits of these cases.

Freedom of religion, expression, and movement are among our most venerable and deeply-rooted liberties; yet non-discrimination, personal safety, and national security are also profound values that are also core and central to our society. Whenever these rights clash, a fair resolution will involve careful, nuanced, difficult evaluations of values and balancing of interests.

To say a decision that involves such competing values is easy means ignoring years of history and experience during which our community has learned to appreciate all these important values. To say it is easy is to remember the individual rights that we personally value most; and to misremember the community of rights of which they are a part — a community of give-and-take which makes our society a civil and fair place to live for people of all faiths, beliefs, and values.

Nicholas P. Miller, JD, PhD, is a professor of Church History at Andrews University. He is the author of “500 Years of Protest and Liberty: From Martin Luther to Modern Civil Rights” (Pacific Press 2017.)


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