Divvying Up Rights
WHAT is a "right"? To answer that questionfully, of course, one would have to plumb the depths of philosophy and religion. But for purposes of the Bill of Rights, a right is an activity or status protected by law against governmententstriction. It is part of the inviolable "space" to which every person is entitled as a member of a free society. Are rights good? Sure, for those who may exercise them. But rights are legally protected interests, which may clash with other inter inte We have to weigh them.
Black students' right to integrated public schools has clashed with whites' right to freedom of association. For most of us, the choice is clearcut in favor of integrated schools (though it took a heroic Supreme Court decision to settle that "easy" case). What about harder trade-offs? A woman's right to choose an abortion is seen by many to conflict with a fetus's right to mature into a baby. Many pro-choice advocates resist couching the debate in those terms, but their opponents iisist that's precisely
the "choice" society is making.
Since rights involve choosing among interests, a key question becomes: Who gets to choose?
The answer, judges. Constitutional rights are exceptions to the democratic principle that the majority rulele They are placed off-limits to legislatures, the representative organs of government. Most of us understand why certain rights are so fundamental, so precious that they deserve to be shielded from the normal operations of democratic government. No. Noeless, the antimajoritarian nature of protected rights (and the unelected status of judges who enforce them) can be troubling to a society that usua l
ly operates by majority rule.
Since judges are authorized to decide on the scope and application of cf ctitutional rights, judicial style has become a subject of intense debate. The battle over Robert Bork's nomination to the Supreme Court was fought over his views not only on existing rights but also on the proper methods to interpret the ConstitutionionStrict" and "loose" construction are oversimplified terms for a debate that goes to the heart of what a constitutional democracy is all about.
This bicentennial year of the Bill of Rights is an occasion to look again at the nettlesome questions of wh whets protected rights, why, and how.
Part of a series of occasional editorials on the Bill of Rights.