Over my years in public life, I conducted many hearings that included comments from members of the public. I remember well that people often said when asserting a claim: “It’s my right as an American citizen.”
That is a compelling statement that goes to the core of what it means to be an American. We deeply value our rights as we conceive of them. But what rights do we have as citizens? How did we get them and how do we keep them? How has our sense of our rights changed?
And what do we mean by rights? For my purposes here, I adopt the common definition used by legal scholars: A right is a claim, enforceable in a court of law, to take or decline to take some action.
The story of our rights as Americans is complicated, and we continue to write and revise it. We invent rights, we approve rights, we reject rights, we expand rights, and we fight for our rights. We are on guard for those who would violate our rights.
America’s founders wrote in the Declaration of Independence that we are “endowed by our creator” with “inalienable” rights, and that these include “life, liberty and the pursuit of happiness.” They said we form governments to protect those rights; but they also worried that governments could infringe on them. When the colonies united to form the United States, many Americans wanted protection from government overreach. Thus, James Madison drafted a Bill of Rights and gained approval for what became the first 10 amendments to the Constitution.
The First Amendment guarantees freedom of speech, religion, the press, and the right to meet peaceably and petition the government. The Second Amendment addresses the right to keep and bear arms. Other amendments ensure the right to a jury trial, property rights and additional protections. The 14th Amendment, adopted after the Civil War, extended the rights of citizenship to everyone born in the United States and provided “equal protection” and “due process of law.”
We often emphasize the right to vote, but, for a long time, only white men who owned property could vote. The Constitution did not extend voting to people of African descent until 1870 or to women until 1920. It took the Voting Rights Act of 1965 to enforce that right; and today, Congress and state legislatures have heated debates on voting restrictions.
Over time, courts have expanded their conception of rights, ruling, for example, that a right to privacy, a right to counsel and a right to marry were implicit in the Constitution. Today, we do not just talk about rights for American citizens, but we prioritize human rights in our foreign policy.
Importantly, rights are not subject to majority rule. Rights are not unlimited, however: You have right to speak freely, but you do not have right to yell fire in a crowded theater, as Justice Oliver Wendell Holmes famously wrote. And rights are not self-enforcing; they are enforceable in court. If we think our rights are being denied, we must persuade judges, juries, or legislators.
Rights are at the center of our political life. We debate constantly about just what our rights are and how they should be interpreted. Defining and understanding our rights is part of the business of living in a democracy.
I stated above that the story of our rights has a complicated history. It will no doubt have a complicated future as well, one that we shape by the actions we take as a people.
By Lee H. Hamilton