Column on whether rights are created

Are Our Rights Created by the Framers?

Tibor R. Machan

One of the world?s most influential and honored legal theorists,
Professor Ronald Dworkin of Oxford and New York Universities, has recently
expressed a view that has been gaining more and more support in
intellectual circles. This despite the fact that it is quite reactionary,
returning to a time when its was understood that it is the monarch who
grants rights to the people of a country and these subjects have no rights
apart from what the monarch grants.

In a fascinating essay, ?Judge [John G.] Roberts on Trial,? discussing
the judicial philosophy?or rather, lack thereof?of the recently confirmed
Chief Justice of the US Supreme Court, Professor Dworkin makes the
following revealing aside:

...A constitution shapes democracy by assigning powers to different
institutions?by specifying the composition and responsibilities of the
legislative, executive, and judicial branches?and its regulates democracy
by creating individual rights that act as constraints on what those
different branches of government may do.... (The New York Review of Books,
October 20, 2005, p. 15)

There is a great deal in the piece that could be discussed but for those
who are convinced that human beings have basic rights?e.g., to life,
liberty and property?by virtue of their nature and not because someone
grants them their rights, this comment deserves special attention. It is
just one, but a rather clear cut, statement of the growing political
viewpoint that what is basic to human community life is that it must be
democratic, not that individuals have certain rights. Rights are created,
according to Dworkin?and many others, such as Professor Cass R. Sunstein,
of the University of Chicago?and not identified as a feature of human
reality. So, democracies come first; rights then are created to guide it
in one or another direction?e.g., it can be a nearly unlimited democracy
or one with some limits, in virtue of whatever rights have been created by
the constitution.

A central issue here is that the shape of a democracy is entirely
optional; it depends on what rights a constitution?that is, those who
frame it?has created. Which is to say, any insistence that a democracy
itself must be constrained in specific ways is thus sidestepped.
Democracies are the given, the rights are an afterthought!

Yet this is quite disputable. Democracy, after all, rests on the idea
that those in a society?all of them?possess the equal right to take part
in the political process. So the individual rights of those who make up a
democracy must precede, not follow, democracy. Without individual rights,
in another words, democracies as such are groundless.

Another famous public philosopher, Professor Richard Rorty, shares the
view that democracies come before rights. For him, writing in the first
volume of his collected essays, Objectivity, Relativism, and Truth
(Cambridge University Press, 1991), human rights are impossible to
identify because the idea of human nature is too unstable. More
importantly, Rorty also holds that democracy comes before everything, even
philosophy and objective knowledge. He too fails to contend with the
objection, noted above, that democracy is groundless without individual
human rights.

If, however, one admits that conceptually?and in fact?individual rights
come before democracy, then democracy cannot be of just any scope someone
happens to prefer. Democracy itself would be strictly limited by the fact
that individuals have other rights besides the right to take part in the
political process. And these other rights would be a firm constraint on
what can be done via the democratic process. (We all understand this when
we see, clearly, that a lynch mob, though democratic, is morally and
legally intolerable!)

When famous legal theorists relegate individual rights to a status of an
invention or creation by framers of a constitution, they sanction anything
those framers, just like monarchs, might get into their head to do. If,
however, such influential thinkers acknowledge the priority of individual
rights, they sanction the principle that governments, democratic or
otherwise, must be limited in their powers. But this is just the idea of
which Professor Dworkin, Sunstein, Rorty, and all too many others may not
want to remind us. It would undermine their embrace of almighty government!