What are Rights ?


In Defense of the Ninth Amendment:
What are Rights?
Don Soloway
Hampton Va.
Written: June 1992
Webicised: Feb. 12 1998


Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

What are the rights that are retained by the people?

Listening to the people through the media you hear "I have the right to speech, liberty, a job, trial by jury, health care, bear arms, privacy, freedom, life, safety, clean air, religion, abortion, and a home."  The arguments then start -- "Who pays for your health care?", "Certain speech is obscene and should be censored.", "Should I lose the opportunity to a job to someone less qualified?", "Guns kill people. They should be banned", "The second amendment guarantees my right to a firearm", "That paper is two hundred years old -- It's time we rewrite it to reflect a 21 century America with 21 century rights; they could not have foreseen what we are today."  Are all these rights covered by the ninth?  Which argument is meant to be supported by the ninth?

When you look at the list and hear the arguments, one tries to understand who is to guarantee these rights, and thus if someone guarantees them, by not doing so you may be denied your rights.  For example, the right of trial by jury, here the government must supply the materials for your right to be exercised.   Another example is the right of free speech.  To exercise this right no one needs to supply anything. Between these two rights a natural partition forms, rights that are conferred by nature and the other conferred by people.

Rights Conferred by Nature (Natural Rights)
How does one determine what are natural rights?  I propose here a simple test (acid test) that can determine whether a specific right is a natural right.  The premise that this test is based on is that a natural right is ability given to a person by nature and that one person's natural right cannot interfere with another person's natural right.   The test is as follows:

    1) One person
    2) Island void of people except the one person
    3) Natural resource to create any human made object

Natural rights (Fundamental Right of the first kind) -- Given the above, what ever the person can do.

Examples that are rights of the first kind:
    Say whatever they please (Freedom of Speech)
    Worship or not worship (Freedom of Religion)
    Eat whatever they please (Freedom of Ingestion)
    Build arms (Freedom to Bear Arms)

Free commerce would not be a right of the first kind.  If you were alone on the island there would not be anybody to commerce with.  Since this requires at least one other person that confers with the commerce this would put the right in the category of rights conferred by people.

Examples that are not rights of the first kind:
    To murder (no one else there to murder),
    To steal,
    To harass, and
    To conceive children (no one else there to get pregnant with).

Rights Conferred by People
After removing the rights of the first kind from the set of all rights, we still have plenty left over to catalog.  One finds that another partitioning can be done by extending the above given.

    1) Two people
    2) Island void of people except the two people
    3) Natural resource to create any human made object

Right of the second kind - Given the above, what ever the two consenting people can do.

The reason for the two people need to be consenting is that if one party was not consenting then you would be violating one of the parties right of the first kind.

Examples that are rights of the second kind:
    To conceive children
    To enter into commerce

The idea can easily be extended to rights of the third kind and higher.  For example of a right of the third kind is the right to arbitration.  First we need three people to have an arbitrator.  Second we need the three people to consent to this. 

Whether the right is enumerated in a piece of paper or not, whether one is suppressed from exercising the right, the right still exists.  I presented here a way of recognizing the type of right you are contemplating.

The ninth amendment refers to other rights retained by the people. I suggest that these rights might be found in the Declaration of Independence - "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."  Unalienable rights would seem reasonable that the founding fathers would want us to retain. These unalienable rights come from our creator not agreement among men.  The set of rights, that this refers to, are the rights of the first kind.