The Problem with Labels
And How Rights Don't Exist
Left. Right. Socialist. Fascist. Theist. Atheist. These are all labels used as shorthand to convey a set of ideas. There are many more, and they are essential to being able to operate in reality, as not every conversation can include a deep dive into every concept. When someone says they are an American Progressive, you can draw a number of assumptions from that and be fairly accurate about it. What you don’t have is confidence on the answer to a singular position, nor how they reached their positions.
A big label is “rights”. Political discourse is often heavily centred around certain rights, and where those rights end. The problem is, this is a meta-conversation about a label, and no longer a discussion about whether something is a good idea. This tends to conflate the concept of legal rights with those of natural rights. A legal right varies by country, state, and time. Natural rights are a conception of what legal rights everyone should have from a moralistic standpoint.1 In the United States, freedom of speech is a legal right derived from the first amendment of the Constitution, and is commonly discussed as a natural right.
Subjectivity makes people uncomfortable.2 Natural rights are inherently subjective, and legal rights are practically subjective. Because of this, there is a desire to view things from a perspective of absolutes. What is considered a right changes over time based on society’s views and who is in power, and this translates into changes to what is legally a right.
The Civil Rights Act of 1875 added protections in public accommodations and public transportation for all citizens in response to discrimination against Black Americans. The Supreme Court struck down the law, citing the federal government’s lack of authority to pass such a law.3 Re-implemented in concept in the Civil Rights Acts of 1964 and 1968, the Supreme Court would break precedent.
The Scopes Monkey trial was a legal case in Tennessee in 1925 brought against John Scopes, a teacher who deigned to teach evolution in school. The court ruled against Scopes, though it was later overturned on a technicality.4 While the Supreme Court would eventually find the teaching of creationism over evolutionary theory a violation of the First Amendment in Epperson v. Arkansas in 1968,5 the issue has never fully been resolved, and court challenges continue. In 2005, there was the Kitzmiller v. Dover challenging the teaching of Intelligent Design in schools in Pennsylvania.6 The same year saw the Kansas Evolution Hearings with the intent to bring Intelligent Design into Kansas school curriculum.7
Loving v. Virginia is one of the most well-known Supreme Court cases in American history. The end result was the legalization of interracial marriage across the whole of the United States. What it also did, was overturn prior precedent of Pace v. Alabama, which had ruled in favour of Alabama’s anti-miscegenation laws.8 And just last March, Indiana Senator Mike Braun stated in an interview he thought that case was wrongly decided.9
Republican political strategy has been, in recent history, to stack the courts with partisan judges in order to enforce unpopular opinions and overturn precedent preventing discrimination they support.10
As indicated by a recently leaked draft decision authored by Samuel Alito, the Supreme Court intends to overturn Roe v. Wade and Planned Parenthood v. Casey in the Dobbs v. Mississippi abortion case, rolling back 50 years of precedent.11 There is little legitimate legal backing for this interpretation, making the move political, from a body that is meant to be apolitical.12
With the current 6-3 conservative-majority court, it is popular legal opinion that not only will be discarding abortion rights in the coming weeks or months, there is possibility from there to move onto other precedents such as Obergefell v. Hodges which legalized gay marriage, Griswold v. Connecticut which legalized contraception, or even Loving v. Virginia which legalized interracial marriage, or Brown v. Board of Education, that outlawed segregated schools.13
The Roberts court — prior to adding conservative judges Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — gutted the Voting Rights Act of 1965 by nullifying the preclearance requirements under the justification that has been glibly describe as “racism is over”.14
While from a legal perspective, Supreme Court precedent for rights is safer than others, it is not immutable. What constitutes a legal right is not untouchable, and there are many examples of how they have changed over time, for better or for worse. Rights as a conception of something that cannot ever be infringed upon or taken away do not practically exist in any meaningful sense.
The United States Declaration of Independence reads, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Even though the right to liberty is referenced in the 5th and 14th amendments,15 there is no legal right in the United States to life or the pursuit of happiness. Jefferson instead is referring to unalienable rights. Natural rights. Moralistic rights that every person ought to have by right of existing in society, and that society should strive toward.
Freedom of speech is a central topic surrounding discussion of Twitter’s acquisition by Elon Musk. There is, however, a conflation between the first amendment legal right to speech, with the natural right to free speech, an ideal purported to be about allowing everyone to socially speak openly in society. Twitter, being a non-governmental entity, is irrelevant to the legal right to free speech, so the perspective of natural rights is the only relevant one. And natural rights being inherently subjective, is open to disagreement about its bounds. Ultimately, this is a discussion on the best way to moderate a content platform, and not a discussion on rights. The label of “free speech” or “rights” is merely a distraction from the substance of the issue.
The substitution of a label for an argument is a red herring. Declaring a natural right to something does not establish that proposed right is a positive one. If one were to argue that Twitter should have less moderation, then that argument can be made on its own merits. If public healthcare is a effective method of administering care to the population, that can also be argued on its own merits, as opposed to whether or not it qualifies as socialist.
The term “rights” acts as a label much like any other political identifier, that is useful in terms of a shorthand for general concepts and identities, but counterproductive in terms of a discussion on specifics. In almost any discussion, any proposal can be focused down to a simple question: is it a good idea? A label cannot answer that question.
Vile, John R.. "Natural Rights" The First Amendment Encyclopedia, 2009, https://www.mtsu.edu/first-amendment/article/822/natural-rights. Accessed 6 May. 2022.
Jankowicz, Devi "Why does subjectivity make us nervous?." Journal of Intellectual Capital, vol. 2, no. 1, 1 Mar. 2001 https://www.emerald.com/insight/content/doi/10.1108/14691930110380509/full/html?skipTracking=true, Accessed 6 May. 2022.
"Landmark Legislation: Civil Rights Act of 1875" United States Senate https://www.senate.gov/artandhistory/history/common/generic/CivilRightsAct1875.htm. Accessed 6 May. 2022.
Adams, Noah. "Timeline: Remembering the Scopes Monkey Trial" NPR, 5 Jun. 2005, https://www.npr.org/2005/07/05/4723956/timeline-remembering-the-scopes-monkey-trial. Accessed 7 May. 2022.
Bowman, Kristine. "Epperson v. Arkansas (1968)" The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/265/epperson-v-arkansas. Accessed 7 May. 2022.
“Judgment Day: Intelligent Design on Trial” NOVA, 2007, https://www.youtube.com/watch?v=x2xyrel-2vI
Wilgoren, Jodi. "In Kansas, Darwinism Goes on Trial Once More" The New York Times, 6 May. 2005, https://www.nytimes.com/2005/05/06/us/education/in-kansas-darwinism-goes-on-trial-once-more.html. Accessed 7 May. 2022.
Stolberg, Sheryl Gay. "50 Years After Loving v. Virginia" The New York Times, 11 Jun. 2017, https://www.nytimes.com/2017/06/11/us/50-years-after-loving-v-virginia.html. Accessed 7 May. 2022.
Alfaro, Mariana. "Republican Sen. Mike Braun says Supreme Court should leave decisions on interracial marriage, abortion to the state" The Washington Post, 22 Mar. 2022, https://www.washingtonpost.com/politics/2022/03/22/braun-supreme-court-interracial-marriage/. Accessed 7 May. 2022.
Calmes, Jackie. "How Republicans Have Packed the Courts for Years" TIME, 22 Jun. 2021, https://time.com/6074707/republicans-courts-congress-mcconnell/. Accessed 7 May. 2022.
Gerstein, Josh, et al. " Politico, 3 May. 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473. Accessed 7 May. 2022.
Huq, Aziz. "Alito's Case for Overturning Roe is Weak for a Reason" Politico, 3 May. 2022, https://www.politico.com/news/magazine/2022/05/03/alito-case-roe-wade-weak-law-supreme-court-00029653. Accessed 7 May. 2022.
Illing, Sean. "After Roe: 9 legal experts on what rights the Supreme Court might target next" Vox, 5 May. 2022, https://www.vox.com/23055107/supreme-court-abortion-roe-wade-constitution. Accessed 7 May. 2022.
Stern, Mark Joseph. "The Supreme Court May Soon Deal a Final, Fatal Blow to the Voting Rights Act" Slate, 10 Oct. 2019, https://slate.com/news-and-politics/2019/10/supreme-court-voting-rights-act-obliteration.html. Accessed 7 May. 2022.
“Liberty” Legal Information Institute, https://www.law.cornell.edu/wex/liberty. Accessed 7 May. 2022.