On Individual Rights

In this post I am going to describe my own personal opinion of the structure of individual rights. This is, to be clear, not a positivist opinion. I'm not describing the structure of individual rights in, say, the American Constitution as written, though I might argue later that it's reasonable to read my notion of individual rights into the Constitution. Rather I'm making what you might call a "natural law" argument, except that I wouldn't phrase it in terms of natural law as that has various religious or top-down implications. But I am definitely talking about how I think one ought to approach the question of individual rights. Here's my basic thesis: the only individual right is the right to the pursuit of happiness, and any specific individual right may be derived from that right.


First of all I'd like to give a few examples of how you derive a specific right from the broad pursuit-of-happiness right. Consider the right to life. It's typically considered a very important one. In the Declaration of Independence it gets top billing, ahead of pursuit of happiness. In Germany I think life is second only to dignity, a decision I disagree with in part because I don't like the whole "dignity" formulation. But I would argue that really the right to life is just a natural consequence of a right to pursue happiness. Why? Well, if you kill me (against my will), I don't get to pursue happiness anymore. (Side note: yes, I'm stipulating that we're talking in secular terms, which assume that there is no afterlife. That's a separate argument, and I'm not going to try and accommodate the alternatives in this post.) This isn't just an infringement of my right to pursue happiness, it is a total destruction of that right. It is a total and final infringement. Accordingly it is perhaps the very first concrete right that follows from the general right to the pursuit of happiness. Similarly locking me in a cage in a dingy building with bars on my window rather dramatically restricts my ability to pursue happiness, but not as absolutely as killing me does.

Now, the trick here is that happiness isn't very well defined. In fact that's the entire point. Aristotle waxes emphatic about the importance of happiness, and I imagine that if I posed my idea about the pursuit of happiness being the source of all rights he'd happily agree, but he has a very different idea of happiness than I do. Aristotelian happiness is very teleological. The idea is that there is One Right Way for a given individual to life his or her life (which might vary from person to person), and happiness consists in living your life according to that path. You don't actually get to choose what that path is. That might be part of why Aristotle was an illiberal, pro-slavery bastard. (I don't like Aristotle.) My idea of happiness is almost entirely anti-paternalistic and anti-teleological: basically, happiness means whatever a given person says it means to them. The right to the pursuit of happiness is the right to the pursuit of my own happiness in my own way. Killing me puts a stop to that. Telling me what my telos is, for (hypothetical) instance, that as a woman my place is in the home, restricts my right to pursue my own happiness my own way.

So why does this right to the pursuit of happiness encompass all other rights? Well, let's start by assuming that if you've violated my rights that's a bad thing for me. Maybe a given violation of a given right isn't a big deal for me, but certainly the violation of a right per se is not something I like. So now here's my question: what harm can you do to someone, what badness can you inflict upon someone, which does not restrict their right to pursue their own happiness in their own way? It strikes me that the answer is, nothing. Anything you do to me that I don't like is something which almost necessarily hinders my pursuit, to some degree. Since this isn't a math paper I'm writing I don't actually have a formal logical proof of this, and if someone has a potential counterexample I'd be happy to argue about it. But I think this is a basically sound principle. Notice that I'm not claiming the converse as well, and in fact I think the converse might be un-true: there are restrictions of my right to pursuit of happiness that don't harm me. But that comes in later. If all violations of rights are bad (for the violatee), and if all bad things are violations of the right to the pursuit of happiness, then all violations of rights are violations of this one right.

But isn't the right to the pursuit of happiness, so defined, almost infinitely broad, you say? And didn't I argue in a previous blog post that it's dangerous to play with these fundamental values that can be defined so broadly? Yes, I did. But specifically I argued that what's dangerous is rights that can be defined broadly or narrowly, and where by alternating between the two you can pull off an Orwellian trick. But the right to the pursuit of happiness as I've defined it is actually just very, very broad. You can't really shrink it. So that's a big part of the point: using pursuit-of-happiness as the One Right to Rule Them All gives you a perfect one-sided test. If something doesn't violate pursuit of happiness, it isn't bad, and you're done. A government policy that doesn't violate someone's right to the pursuit of happiness is just plain a good policy; incidentally, these are probably few and far between.

And that's the other point. Most laws restrict your right to pursue happiness; that's almost just the point of laws. So by using the pursuit of happiness as my One Right, I'm making it clear that there can be violations of that right that are okay. I'm comfortable taking this strategy because I think there's a pretty good way to form the other half of the test, the test to see whether something that does violate pursuit of happiness is in fact Bad. I basically derive this test from the standards for strict scrutiny, which require that a law be a) backed by a compelling state interest; b) narrowly tailored to achieve that interest, and c) minimally invasive of equal protection. To me the last two of these, narrowly tailored/minimally invasive, are really a single principle, which I might call the "tread lightly" principle. The idea here is that just because there is a compelling interest in violating equal treatment in some way/shape/form it doesn't mean you get to run rampant. The state gets to violate equality exactly as far as it needs to go for its compelling interest, and no further. This strikes me as a very useful conceit in discussing individual rights generally.

So here's my basic individual-rights test for any piece of public policy: violations of the right to the pursuit of happiness must be justified by a state interest commensurate with the magnitude of the violation, and must not go further than necessary to achieve that interest. The way I see it, this test provides one framework for discussing every area of civil rights and civil liberties (not including political participation rights, which are a very separate thing). You can analyze anything that feels like an infringement of a right by the severity of the violation of the right to the pursuit of happiness, and compare that to the state's interest in infringing that right. This provides a rather simple language for discussing any situation. We don't have to come up with a separate language for free-speech rights and a separate language for privacy rights and a separate language for economic rights. It's all the same language of individual pursuit-of-happiness rights.

Here are a couple of examples of how I would analyze certain policies under that law. To me, killing someone is, as I said, the ultimate, total, and final destruction of the right to the pursuit of happiness. Therefore, there is essentially no state interest that can justify the state's killing someone except for those circumstances that are a valid defense to murder for an individual, primarily the immediate defense of the lives of others, which is justified by the state's duty to protect those other people's right to pursue happiness for themselves. This standard would rule out the death penalty immediately. On the other hand, it's perfectly true that a law against murder is a restriction of the right to pursue happiness (for some people). Someone who tries to commit murder presumably thinks that killing that other person is a part of pursuing happiness for them. But here's the thing: there's one hell of a compelling state interest here. A law against murder, for that reason, passes this test with flying colors.

I think there are a lot of instances where rephrasing things the way I've done makes things easier. The Lawrence v. Texas right to sexual privacy? Here's how I'd address that: what the devil is the state's interest? I don't think you can really come up with one at all, particularly if you agree to the restriction to consider only public-reason state interests, and not particular religious doctrines. One nice thing about this is that it addresses a concern that a professor of mine raised last semester, namely, do we really want the burden of proof to be on the individual against the state in cases like these? Well, under my standard, there are two burdens of proof. The individual has a responsibility to prove that their right to the pursuit of happiness has been violated as severely as they can, but the state also has a responsibility to prove it has an interest. And the state's actions are sustained only if the state can meet its burden but the individual can't. So even if you can't show that a particularly important aspect of your pursuit-of-happiness right has been violated, you can still prove that the state has virtually no interest in violating it. And even if you can't deny the state has a rather sound interest, you can still prove that the violation of your right would be disproportionately severe.

Yes, there will be marginal cases. There will always be marginal cases in any legal standard. You can almost prove that: to get a little too mathematical, the space of possible situations is continuous whereas the space of legal outcomes is discrete, so any map from the former to the latter will necessarily include boundaries and those boundaries will have situations so nearly on the boundary that it's almost impossible to tell which side it's on. So there will be instances where people disagree about which side wins. I don't imagine that this would resolve all debates about individual rights. But I think that my system would make the debate a lot simpler and more direct, and that would probably lead to an improvement in the conclusions we reach over time.

Now, as for whether one can read this concept into the U.S. Constitution. I think you can make an argument that you can, running through the Ninth Amendment. Basically, as my grandfather argued in his book A New Birth of Freedom (1999), the use of the word "retained" in the Ninth Amendment is a signal that what's meant by it are rights held by Americans under the Declaration, the truly foundational document of our nation. What are those rights? Where do you think I got the phrase "pursuit of happiness"? Then, of course, the Fourteenth Amendment's Privileges and Immunities Clause ought to incorporate those rights against the states. And I think that once you have something like the right to the pursuit of happiness in place you need something resembling the test I've laid out to determine which of the many violations of that right are acceptable ones. So I think that there is a very reasonable case that my philosophy of rights is lying dormant in the Constitution, and I suppose that if I'm ever appointed to the Supreme Court I'll start ruling that way.