Do We Have Rights, And How Do We Know?

A letter to the editor in my local paper argued that health care should not be considered a right. Her reasoning was that such a right is nowhere specified in the founding documents. This is a great advance over the mere assertion that this or that is a right. To make such conversations meaningful, we need a definition of what a right is and on what basis it is to be affirmed. Otherwise, we have a mere exchange of opinions but not much light thrown on the matter.

Unfortunately, the usual situation is that anything that anyone  strongly believes the government should provide is asserted to be a right. This is not helpful. My proposal is that instead we should claim that something, e. g., health care is a need and that all have a just claim on available resources. I speak here of rights to specific goods and services not the more fundamental rights, e. g., human rights, civil rights, legal rights, etc., discussed next.

This would not, course, automatically resolve all the issues. We would still still have to establish what a need is, whether health care is one, and whether the need should be met by private or public (governmental) means and so on. But it would provide a basis and process for debate that would not be as empty as the mere assertion that something is a right.

We can responsibly speak of rights. I would suggest two types: natural rights and constitutional. The former are those that belong to us by virtue of our being human.  Since they are based on reason, they  are controversial and open to doubt and dispute. But if we are to make claims based on nature, I suggest they be kept to a minimum, such as those mentioned in the Declaration of Independence,  i. e., "life, liberty, and the pursuit of happiness." I would add  equality and justice and leave it at that.

Constitutional rights are those specified in the American Constitution or implied therein as determined by judicial review and ultimately by the Supreme Court. On this basis rights can be established by legislation and court decisions, e. g., the Miranda rights. Interestingly, those legislated and enforced are the most knowable, certain, and specific but most likely to be mistaken, whereas natural rights are less knowable, have less concrete  specificity, and the least guaranteed enforcement as such but have the greatest universal validity.

There are also, of course, rights by recommendation and adoption, such as the United Nations' Declaration of Universal Rights. Earlier were Roosevelt's Four Freedoms and other proposals for the recognition of rights. These tends to function more as ideals to be attained not claims guaranteed by some authoritative body with power to do so.

The issues regarding are more complicated than this, but perhaps this suggests the beginning of a ways to approach the overuse of the term for anything anybody feels strongly about.