By Jay Jamison
I still remember being told as a young teenager desperate to obtain an Illinois driver’s license that driving is a privilege, not a right. That means those who want to legally operate motor vehicles on the roads of Illinois must seek permission from the state to do so. Anything the state issues to citizens asking permission to obtain is a privilege that can be issued, but it can also be revoked.
So, what about rights? What is the status of right? Where do they come from and who has the sovereign status to their use? How many times have we heard someone declare, “I have my rights!” during some controversy or another? Such a declaration implies ownership. In the great battles of recent decades over Supreme Court nominations, I always thought that the ideological fight really began with the nomination of Robert Bork and the abortion controversy. I’m now convinced that the issue has roots that stretch further back in time.
At the time the Bill of Rights was adopted, its principle author, James Madison, viewed rights as akin to property — something an individual owned. My right of freedom of speech is just that, mine. However, there was a change in thinking about rights in the early 20th century. According to Timothy Sandefur in his book, “The Permission Society,” he wrote, “Such Progressive Era thinkers as John Dewey, Louis Brandeis, and Oliver Wendell Homes saw the freedom of speech or press not as property rights but as tools for ensuring that the public could reach wiser collective decisions.” I suspect that many, if not most progressives, do not believe in a creator as the source of rights; as in the famous phrase from the Declaration of Independence about equality among persons: “That they are endowed by their Creator with certain unalienable Rights.” If there is no creator, how can individuals be endowed by that power with rights? That leaves society or the state as the source of rights, and anything the state gives out — like driver’s licenses — the state can take away.
This realization presents a whole new understanding of what may lie ahead for some possible Supreme Court cases. Those who hold to the pro-choice view in the abortion controversy desperately want the right of privacy, upon which the whole Roe v. Wade decision rests, to be seen as a permanent Constitutional right held and owned by individuals. But the progressive view that the Constitution is a living document, and the rights referred to in the Constitution are subject to changing interpretation, imperils that view. After all, by the progressive view again, what the state gives — like driver’s licenses — the state may also take away. This applies to every right declared in the Constitution, not just the one announced in Roe v. Wade. I think we can agree that no rights are absolute; you cannot falsely cry fire in a crowded theater and then, after the stampede, claim you were merely exercising your Constitutional right to free speech.
However, it seems to me that another matter of rights looms. Are the rights in the Constitution and elsewhere, held and owned by individuals prior to state consideration, or are they granted to us by society and government? It would seem that you couldn’t have it both ways. Yet, that question may help explain why highly educated and experienced jurists can interpret seemingly clear and forthright words in the Constitution in such diametrically opposite ways.