U.S. Constitution Establishes Liberty Rights, Not Claim Rights

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New Federal Unalienable Rights Commission Might Untangle Confusion; U.S. Constitution Establishes Liberty Rights, Not Claim Rights Like Many Other Countries

WASHINGTON, D.C.  (June 17, 2019) – While the Washington Post seems worried that the newly created federal Commission on Unalienable Rights was established to “redefine ‘human rights‘ along conservative lines,” the new body may, to the contrary, help American citizens and politicians understand a fundamental difference between two different types of legal rights – those largely embodied in the constitutions of many other countries and in treaties (which do not bind the U.S.), and those enshrined in the U.S. Constitution – suggests public interest law professor John Banzhaf.

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Much of what the Post article terms "modern civil rights law," which it admits is "lefty" and largely economic and social  - such as the "rights to work, to health care and to education" - are largely claim rights, as opposed to the liberty rights, and the difference is a fundamental one well recognized by legal scholars, says Banzhaf.

A claim right is a right which imposes a legal duty on another - often the government - to provide something to the claimant, and a denial of the claim right generally creates a legal cause of action in the claimant. All claim rights impose a corresponding legal duty.

For example, social security is a claim right established by federal law which obligates the government to pay certain sums to eligible claimants.  Other examples are "rights to work, to health care and to education" where, if the government fails to insure that the claimant can find work, obtain health care, etc., it may be legally liable because it has a legal duty created by the claim right to fulfill those rights.

In sharp contrast are liberty rights which do not impose any duty on the government, but which guarantee to the beneficiary of the liberty right the freedom to engage in certain activities without governmental interference.

Since these liberty rights create no legal duty, the government cannot be sued for failing to insure that a person is in fact able to engage in those protected activities.

A good example is the Freedom of Religion protected by the First Amendment.

It, like most of the other constitutional rights, is a liberty right rather than a claim right because it guarantees only that the government will not punish or otherwise interfere with most religious practices.

But it does not establish a claim right since, if the practice of a specific religion requires a certain head covering, a prayer rug, some wine, or a physical religious book or symbol, the government is under no legal duty to provide it - with the narrow exception of people who are incarcerated.

In another example as to which there is frequent confusion, the Supreme Court decision in Roe v Wade and its progeny held that the Constitution protects a liberty right for women to have abortions under certain circumstances.

In other words, governments cannot prevent or through official action impose an undue burden on a woman seeking an abortion.  However, Roe did not create a claim right; one which would impose a legal duty on the government and taxpayers to provide or otherwise pay for an abortion whenever necessary.

While a claim right to abortion - i.e., a legal right to have an abortion backed up by the threat of a law suit - can of course be established by legislation or by contract (e.g., a medical insurance policy may so provide), this type of claim right is not the kind deemed so fundamental by those who founded the country that it was enshrined in the Bill of Rights or in the remainder of the Constitution.

Similarly, even those rights not expressly listed in the Constitution, but said by the courts to be included within the penumbra - e.g., the right to privacy - are liberty rights rather than claim rights.

For example, the right of privacy established by the Griswold case means that the government cannot prevent persons from using contraceptives, although it certainly does not mean that the government must provide contraceptives, even to people too poor to afford them.

Clearly, most of the rights deemed fundamental enough to be expressly protected by the Constitution - arguably those deemed unalienable at the time - are liberty rights preventing governmental interference with certain activities, rather than claim rights which require the government and the taxpayers to provide certain benefits such as jobs, a living wage, health care, etc.

The charter of the new commission is to explore "reforms of human rights discourse where it has departed from our nation's founding principles of natural law and natural rights" - those said to have been upheld by Abraham Lincoln and Martin Luther King Jr.

Regardless of the sources of "natural law and natural rights," those rights which were  deemed unalienable - and therefore safeguarded to the extent possible by incorporating them in a constitution where they could not be overturned by the shifting whims of the public or legislators - were largely liberty rights.

This, of course, made sense at a time our country had just fought a war to insure individual liberty, there seemed to be boundless opportunities for those willing to work hard, and the idea that the government would pay doctors to care for the poor would have been unthinkable, says Banzhaf.

However, now that the economy and society has changed so much, and the federal government plays a much larger role in virtually every facet of our lives, some might argue that we should also recognize and protect a new set of rights - claim rights which are largely economic and/or social ones.

These, suggest Banzhaf, are important issues which should be decided based upon facts and public policy, and not upon by whom or how so-called "natural rights" became established (e,g., by a "Creator" or from other religious views, ancient Greek philosophers, theorists such as Thomas Aquinas and John Locke, etc.)

And, he adds, in this debate, it is vital to remember the important distinction between claim rights (those in international treaties and in the constitutions of many other countries which create legal obligations to fulfill) and liberty rights (those deemed so fundamental as to be expressly included and protected by the U.S. Constitution, but which create no affirmative legal duties on the government).

The former obligate taxpayers to pay for things others may need or at least desire, whereas the latter assume that the relative freedom from governmental interference is the better course, he explains.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418

http://banzhaf.net/ jbanzhaf3ATgmail.com  @profbanzhaf

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