Adding (and Subtracting) American Rights

December 15, 1991|By LYLE DENNISTON | LYLE DENNISTON,Lyle Denniston covers legal issues and the Supreme Court for The Sun.

WASHINGTON — Washington. -- Americans sometimes tend to think that being an American is to be someone who has rights. It is a proud and happy thought -- one that ordinarily might seem fitting today, the 200th birthday of the Bill of Rights.

But that is a thought that might go sour if more Americans knew how truly foul-humored the debate is these days over "rights" of any kind.

Those who have the most to say about what rights exist and who should enjoy them engage in often rancorous discussion that can make most unpleasant the very idea that a new right might be created, or an old one strengthened or redefined. That is the most unsettling feature of of the public conversation over rights on this bicentennial anniversary of ratification of the first ten amendments to the U.S. Constitution -- the Bill of Rights.

Talk of "gay rights," and the conversation turns ugly quickly.

Talk of "a right to die," and bitter emotions are aroused instantly.

Talk of "fetal rights," and the result is immediate hostility.

Talk of the medical and workplace "rights" of people infected with AIDS virus, and the consequence is likely to be a swift outpouring of moral outrage.

Talk of a "right" of sexually active minors to use birth control, and the very death of the family and of morality is predicted.

Talk of the "rights" of the homeless, and ridicule may well be the response.

Talk of the "rights" of the poor, and the reaction can be a sniff in disdain.

Talk of the "right" to speak crudely of race or sex, or to burn a flag, or a cross, and the reaction is a harshly disapproving insistence upon the need for "political correctness."

L Talk of "animal rights," and coarse laughter may well ensue.

But every one of those propositions is or has been seriously advanced by someone, in the contemporary debate over rights in America, and the discontent stirred by the mere mention of those ideas is matched by a new rancor over the "old" rights: of blacks, of women, of children, of the elderly, of criminals.

In the two years leading up to this Bill of Rights anniversary, Washington witnessed the almost daily pain of a dyspeptic debate over passage of the Civil Rights Act of 1991. That might have been Washington's joyous gift to the nation in this bicentennial year of the first national declarations of rights; instead, it became a sad testimonial to the ease with which ugly slogans of race favoritism can be thrown about. "Quota" is definitely the new, and awful, code word for a political vice.

It is likely to be heard often in political conversation, too, as America awaits a presidential election campaign featuring a former Nazi and Ku Klux Klansman -- Louisiana's David Duke -- running for the White House with a strongly anti-rights message.

But the deep disaffection in the political debate over rights is almost equally matched in exchanges these days about the law of rights -- especially rights as a constitutional matter.

The Senate hearings last fall on Clarence Thomas as a nominee to the Supreme Court were an angry new demonstration of the blunt fact that the future of constitutional rights is being determined, right now, in a philosophical war that is anything but kind or gentle.

A new Supreme Court majority, chosen by three presidents expressly committed to turning around precedents on a whole string of modern rights, seems poised to cast aside rulings that no longer enjoy five justices' favor.

For the first time in history, the court appears likely, in coming months, to debate very seriously and quite emotionally an absolutely unprecedent proposition in the history of legal rights: taking away, altogether, a right put into the Constitution by the court. That, of course, is the right to seek an abortion, declared by the court 19 years ago next month -- and probably the most controversial American constitutional right since it originated in 1973.

But even as the court contemplates the end of an abortion right as such, it must also ponder the almost equally controversial issue of where to stop with the dismantling. The right to seek an abortion comes out of a broader constitutional right, also created by the court: a "right of privacy" that exists nowhere in the Constitution's words, but has been acknowledged by judicial decision since at least 1965, and perhaps in judicial hints for some forty years before that.

That right of privacy now includes -- by judicial declaration -- such things as the right to marry, the right to decide matters of sexual privacy (including the use of birth control), the right to decide how to raise and educate one's own children, and the right to refuse unwanted medical care or treatment.

If the court is to do away with the abortion right, it may have to find a way, as a matter of doctrine, to do so that does not cast aside those others simultaneously.

All of the "privacy" or privacy-related rights are "unenumerated rights" -- that is, rights which find no specific clause defining them in the Constitution, but which exist nonetheless.

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