What are rights in America?

We discuss the rights of people in America more than in any other country on Earth, it seems. But this conversation is almost instantly muddied because people use different definitions for what rights are. This leads to people on both sides of the aisle simply talking past each other. In particular, the conversation about what rights people have is doubly-muddied once the American Constitution and Bill of Rights are thrown into the mix.

If you want a quick 60-second primer from Walter Williams on what rights are generally, here is a clip.

The Bill of Rights

First and foremost, the Bill of Rights and Constitution do not define the only rights you have. In fact, you have many rights that are not listed in the Bill of Rights, such as the right to self-defense. The Constitution and Bill of Rights only list the rights of people in America that the Federal government is explicitly obligated to protect (or not, as we will discuss). This seems counter-intuitive and is the opposite of the way these documents are taught in schools today.

For instance, the 19th Amendment is often quoted as giving women the right to vote, but this is simply untrue. Prior to the 19th Amendment, women were voting and holding political office across the US. What the 19th Amendment made explicit was that women who had been prevented from voting were having their rights violated, and that going forward, the US Federal government was obligated to protect any citizen’s right to vote, regardless of their gender.

The 2nd Amendment does not grant you the right to bear arms, it obligates the Federal government to protect your right to bear arms. The 1st Amendment does not grant you the right to free speech. It obligates the Federal government to protect your inalienable right to free speech. You may now consider that the 18th Amendment removed people’s right to drink alcohol. However, it simply made explicit that the Federal government was not obligated to protect your right to an alcoholic drink (giving it the power to actively work against your right to an alcoholic drink).

After the 18th Amendment, the American people displayed their propensity for exercising their rights regardless of the Federal government protecting the right or actively working against it. Not a bad way to turn swaths of the public into criminals overnight.

The Rights of Citizens and Non-Citizens

Historically, the only difference between what rights citizens have that non-citizens don’t regards the right to vote and the ability to hold public office. Today, many people would like to draw sharper distinctions between who’s rights the Federal government is obligated to protect. To most people, I’m sure the mention of a non-citizen resident renders an image of an illegal migrant or some other immigrant in their head. However, we have an entire class of undocumented non-citizen residents in the US that have no clear protection of rights in the exact same vein as an illegal immigrant from Mexico; an unborn fetus.

If a fetus is a person, it is not a citizen until after it’s born, per the Constitution. This means that, if a fetus is a legal person within the United States jurisdiction, it has the same protected rights as an illegal immigrant from Mexico from the perspective of the Federal government. This is a huge wrench in conservative gears because they want no protection of rights for undocumented non-citizen residents. This is also a wrench in many liberal gears for opposite reasons.

As a conservative, what rights for a fetus would you protect that you wouldn’t for an illegal immigrant? As a liberal, what rights for an undocumented immigrant would you protect that you wouldn’t for an unborn fetus? From the Federal perspective, an undocumented unborn fetus has the same protected rights as an undocumented immigrant from Mexico.

The common rebuttal to this is that the immigrant knowingly broke a law but the fetus didn’t. This doesn’t square with conservative policies against Dreamers who also did not knowingly break laws. In fact, the conservative argument against the Dreamers is that they are getting “equal protection” as defined in the founding documents, but they aren’t US citizens, thus their equal protection is unconstitutional. This argument also applies to an undocumented fetus, however.

It turns out, immigration rights and fetal personhood are distinctly intertwined in a way I would bet no legal expert expected. Someone call LegalEagle.

In The End

As an American citizen, you have many rights that aren’t listed in the Bill of Rights. It is wrong to consider the Bill of Rights as a list of rights you’ve been granted by the Federal government. Instead, interpret the founding documents as a list of rights that the Federal government is obligated to protect (or explicitly not obligated to protect).

More content in the future will dive into these issues further.