The Fallacy of Cheap Rights

There is currently a fashionable idea that a right extends only to the point where it becomes a minor inconvenience and no farther.

The Fallacy of Cheap Rights
by Curt Bentley

You see this type of thinking quite a bit these days.  But here’s an example, taken from a piece written by Prof. Gedicks (of BYU Law School, no less):

The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs and practices but only when doing so does not impose significant burdens on others.

. . . 

Americans must be free to practice their respective faiths but also free from bearing the burdens of their employer’s faith. The Supreme Court should ensure the liberty of all Americans by rejecting the efforts of for-profit businesses to impose their owners’ religion on employees.

When I first read this article, I was almost persuaded.  But something felt off to me.

It can’t be correct that one’s rights end at the point they begin to inconvenience or impose costs on another person.  Those would be cheap rights indeed.

I want to suggest that the entire purpose of a right is to inconvenience, to disrupt, and to shift the costs of one’s exercising that right onto people who disagree with what has been done.  And if you’re unwilling to bear costs associated with a right, you’re not taking that right seriously, no matter what you say.

You can’t talk about how you value the right to equal protection and suggest that the right of equal protection goes only so far as the will of the people says it does.

You can’t value the right to religious freedom and say it only goes so far as current law allows — i.e., religious freedom is no excuse for disobedience to law!

Nope.  That’s a cheap view of rights.  And the idea that we can have cheap rights is a fallacy.

BUT…

It’s just as self-evident that no right is a get out of jail free card that exempts someone from law every time, the two conflict.

Because, although we often phrase conflicts such as those identified above as a contest between “law” and “rights,” the reality is that what we refer to as “law” and what we refer to as “rights” are (in my view, anyway) both best viewed as rights emanating from different sources.  A “law” is a right that emanates from legislation.  A “right” is a right that emanates (putting the idea of natural law aside for our purposes) from a written Constitution.

Viewed in this light, the question is no longer about “rights over law” or “law over rights,” but about which right prevails over the other and in what circumstance.

And this presents very uncomfortable questions.  Questions of degree.  Questions of assessment of various interests.  Questions that require ongoing balancing and accommodation.  And I want to further suggest that a refusal to acknowledge the messiness is another sign that we’re not taking rights seriously.

Irrespective of who actually bears the real world burden for one’s exercise of a right — one of the “costs” associated with not having cheap rights is the uncomfortable recognition of the ambiguity associated with their extent; that there is no such thing as a preeminent right.

Because a society in which no one takes the time to carefully consider the extent of others’ rights is one where those rights are pretty cheap indeed.


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