Lecture 2:25 Rights - Professor Steve Herbert PDF

Preview

Summary

Professor Steve Herbert...

Description

Lecture 2/25 Rights Claims are made in the language of rights.3 ● But what do these rights claims imply?3 ● Rights claim: demands change in law often ○ Necessity of law ● Conflicting Rights Claims: ○ How is law looked to in order to adjudicate conflicts in rights

claims?

JUSTIFYING HUMAN RIGHTS: ● Right to be treated equally: ○ WHY? Why does it matter that we be treated equally?3 ◆ Immutable traits… shouldnʼt matter ◆ All humans have same inherent value that exists before we

have the choice.3 ● Animal vs. Human Rights? ○ What connects rights and assertion of rights with the ability to

think (cognition)? ○ Why does our ability to use logic and reason give us rights over

animals?

NEGATIVE RIGHTS: (AKA Civil and Political Rights, or 1st generation Rights) ● Negative rights define the boundary between state and citizens

● What are the rights of citizens? ○ Freedom of Speech ○ Right to Vote ○ Due Process rights ○ Right to run for office ○ Right to assemble ● POINT: All of the above ^ are enacted to protect citizens from the

state. Negative rights restrain the state, to prevents its tyranny.3

POSITIVE RIGHTS: (AKA Social/Economic, or 2nd-generation RIghts) ● Right to education ● Right to healthcare ● Right to unionize (worker protection) ● Right to reproduce ● Right to marry ● Right to social security (right to a fair wage)

POINT: All of the above ^ carry an obligation from the state to ensure these. They require the state to do something. Thatʼs why itʼs a positive right, because it obligates action rather than restrains the stateʼs actions.3 HOW CAN YOU ARGUE FOR POSITIVE RIGHTS? ● Positive Rights enable Negative Rights. People need to be enabled to exercise their Positive Rights. Depriving them of Positive Rights

(like education or healthcare) can prevent people from exercising their Negative Rights.3 ○ How can you argue or the right to education because we are

human? ◆ Education is key so that we can intend to be something

different. Actualization. If there is no education, we have no capacity to actualize possibilities. This is something not innate to animals.3

BAXTER V. MONTANA ● Pro Baxter:3 ○ Does he have the right to die? If he has the right to die, is the

state infringing on that right? ○ Different from “duty” to kill because killing assumes right to live

being violated. ○ Rights of self-determination should be respected; if Baxter

wants to die, he should be able to choose.3 ○ He has right to happiness (self-actualization). If being alive

makes him miserable, he should be allowed to pursue happiness by dying ○ Self-governance of body ● Against Baxter: ○ State has some responsibility to protect its citizens.3 ○ Doctorsʼ Hippocratic Oath?

JACKSON V. JOLIET

● Pro Jackson: ○ State was negligent. Service provided did not effective do their

job ○ State did not protect the rights to safety/health/happiness.3 ○ Behavior of state indicates their failure to execute role to protect

public safety.3 ○ Individualsʼ rights to life were not protected ○ Government has obligations to help preserve them as political

and civil actors ● Pro Joliet: ○ Not necessarily a “positive right” that was violated. Seems more

of a “persona issue.” The police officers and firemen didnʼt try to save the people, but not really a state failing??? ○ Made strategic choice to be more concerned about the drivers

on the road than the two individuals in the burning car who appeared to be dead.3 ○ Each party (police and firemen) did their own jobs. There was no

failing; the jobs were done, but lives were lost anyways. Too bad? ○ Risk of endangerment to state actors

Quiz Section 2/26 Child Rights What should childhood look like? ● Need to learn ● Need to have fun

● Need to learn how to function in society ○ Balance of fun/work ● Social skills—informal social control ○ Sheltered way of living. It would hurt them later in life.3

Children and Rights: What rights should children have? (Knowing that rights are just abstract claims to what we think we should be entitled to…) ● Canʼt make right decisions ● Not rational actors ● Need to be told what to do? ○ Do not have full independent rights ● Children have the right to be safe ● Right to healthcare ● Right to life ● Right to education ○ Need training. Education enables self-actualization ● Informed to be a proper civilian ○ Right to properly socialize

Need vs. Right ● If we say children have rights, who is responsible to provide for those rights/needs?3

○ FAMILY. If family fails, then the state is there it defend the rights

of children.3

How do you ensure these rights are met and protected? ● Passive Role? Child protection services? ○ Looking for signs of children abuse (that the childʼs rights are

not respected) ● Witnesses to look out for rights; those who are exposed to life of

kids have responsibility to check for abuse? ○ Doctors, teachers, babysitters, etc.3 ○ I.e., surveillance by private actors (non state) ● Need a system to deal with the problem when it is reported by

private actors. Need an agency; dedicated agency to deal with this. FORMAL CONTROLS necessary to take over at this point. There are laws with which we are required to report things.3 ● Bottom line: We delegate the raising of children to family, but at

some point the state has interest in protecting the child as well.3

Role of State: ● State serves the rights of children (e.g. providing free education)

Triangle Relationship between State, Family, and Child: Is it a zero-sum game? ● Only zero-sum in serious cases? Depends on severity of the situation.3 ○ How do we deal with competing rightsʼ interests?3

KEMMETER: What was her role, and what were her tools?3 ● Role: To protect the right of the Joshua, to ensure his safety.3 ○ She was caught in between the state and the DeShaney family.

Split in between roles. She had the responsibility to determine when it was necessary to remove Joshua from the household.3 ● Tools: ○ Child protection services ○ Law enforcement ○ Can remove Joshua from DeShaney family

IMPORTANT QUESTIONS: ● Did Kemmeterʼs failure to remove Joshua violate his 14th amendment rights? ● How far should the state intervene in the family? What is the

obligation of the state here?

LECTURE 2/27 Animal Rights Rights vs. Rights → Turn to law (we turn to law to resolve rights conflicts) ANIMAL RIGHTS: ● How would we support the argument to give animals rights? How would we support the argument that a small garter fish has inherent rights? ○ 1) All animals are members of a wider planetary community, to

which they all contribute ○ 2) Are animals alike to humans? How so? In what ways are

animals alike to humans that give them rights? ◆ Animals can communicate, feel pain, they can die, form

social groups, arguably have “free will?” Division of labor, parental care, maybe feel emotions.3 ○ 3) Even though animals canʼt reason… Some humans canʼt

reason either (like the mentally handicapped, babies, etc), but we still give those people rights.

SPECIES PROTECTION: (not going as far as to demand to give animals rights, but still think that animals be protected) ● 1) Humans are responsible to protect animals. We canʼt morally permit another species to go to extinction. We need to “share the planet?” ● 2) No clear line; if the dam is built that wipes out fish, what is next?

Need to be careful of how we treat environment, because it could go out of control.3 ● 3) Environment helps habitat ○ Long-term benefit for humans that we donʼt know. Might deprive

ourselves of resources.3

PRO ENVIRONMENT: ● States are high (small garter fish about to go extinct) ● Dam construction could be stopped ● Ecosystem damaged; it may cause long-term damage ● Damage to natural habitat impacts humans

AGAINST ENVIRONMENT: ● Initially stated by congress; implies continuing the goals of congress

● Benefits of dam override the small benefits of one species of fish ○ Economy bad; needs help ● Benefit to people > small fish

FORESTRY DESTRUCTION = HARM ● Harm distinguished from killing; must mean broader than just kill. ● Chain of causation is very strong (cutting trees directly leads to

death of owl) ● Clear problem viz. ESA (and its associated benefits)

FORESTRY DESTRUCTION =/= HARM ● Not a direct act of harm. Not directly “attacking” the endangered species. ● “Habitat” is too expansive. How do we understand the limits of that

term? ● Is the forest the sole habitat the Spotted Owl can live in? ● How far do you want to pursue this?

If ANIMALS HAVE NO RIGHTS, why? ● Humans are different? ○ Because we have greater cognition?3 ○ Animals canʼt exercise rights? ○ Humans have greater moral options? (capabilities) ○ Humans can self-actualize

○ Humans can have greater positive impact on the planet?

HOW DO WE BALANCE COMPETING RIGHTS?

Quiz Section 2/28: DeShaney Case Melody: wants money to care for kid ● Takes it federal court instead of state court ● State court has a cap on the cost

Idea: Law is a medium through which conflicts take place Central Question Justices Need to Decide On ● Whether or not negligence of the state equals a violation of that individualʼs rights ● Specifically: “Did the DSSʼ failure to protect Joshua violate his 14th

amendment rights?”

Baseline Argument: ● Joshua possesses 14th Amendment rights separate to his parents. How does Joshua DeShaney have rights separate to his parents?

Key disagreements between Justices ● Does state action = state inaction? ● Does the Constitution provide positive rights in addition to negative

rights? ● What are the actions of private violence?3 ● What about family rights?3 ● Theory of special relations: valid?3

Private Constitutional Violence: Not covered by constitution.3 ● Under certain circumstances, the state has responsibility.3

KEY QUESTION: If a constitutional violation happened during events leading up to Joshuaʼs final beating, when did it occur? At what point did the state violate Joshuaʼs constitutional rights? ● Maybe the first time Kemmeter saw Joshua; every time she returned and she saw signs of abuse but didnʼt do anything? ● After substantial evidence of abuse, and signs of DeShaneys not

taking steps to change? Point is: Determining when the exact point of constitutional violation occurred is difficult, so we turn to a different argument.\ ● If there is a special relationship between Joshua and the state (meaning that in this situation, the special relationship obligates the state to act in his protection), then we donʼt need to pinpoint a specific point of violation of rights, but rather just point out the fact that the state did not act, and thus is culpable for what happened.3

In that case… when did “special relationship” between Joshua and the state begin? Was Joshua DeShaney even in a special relationship with the state?3 ● YES? Because the state excludes other parties from looking after Joshua. By assigning Kemmeter to the DeShaney household, the state effectively takes ownership of him and bars others from being concerned with his safety.3

EFFECTIVE CONFINEMENT:3 ● Joshua was unable to leave the house, and Kemmeter was the ONLY ONE who could legally remove him from potentially abusive parents. Thus, you could argue that Joshua was essentially in confinement because he had no other options.3

● The state assumes affirmative duty.3

IF WE CLAIM THAT INACTION OF THE STATE CAN BE A VIOLATION OF RIGHTS (Joshua DeShaneyʼs rights in this case), HOW MIGHT WE ARGUE THIS? WHY IS THIS QUESTION/CASE SO CONFLICTED? What makes it so hard to deal with?3 Final Thoughts: CREATIVE ARGUMENTS AROUND THE LAW ● Debates about interpretation of the law continue ● There are legitimate cases on both sides ● Violence is implicated in what the law does ● Courts are one place where societyʼs values are figured out (values

like role of the family, extension of the law into family, etc).3

LECTURE 3/01 Prisoner Rights ANNOUNCEMENT: Final Exam question will be given on Monday, and will be one prompt. Stricter grading! RIGHTS: Think of 1st amendment rights. How can prisons legitimately restrict rights? In what ways do they do so? (Specifically, this lecture covered the conflict of rights between State and Incarcerated offender; whether the prisonersʼ rights to free speech in the form of a hunger strike protest trumps the stateʼs right to force feed them/protect them.) QUESTION: Why do we deserve the rights of the 1st Amendment?3 ● The 1st Amendment (a negative right that restricts government actions) provides protection against monarchical rule. But WHY? Why do we deserve protection against a tyrannical state? What gives us that right?

● 1st Amendment gives us the right to change the government. The

1st Amendment views us as independent citizens who are able to construct our own thoughts and actions to CHANGE THE GOVERNMENT.\ ● The 1st Amendment enables us to change the government by

organizing ourselves and our philosophies to do so.3

QUESTION: Are there situations in which this right should not be respected? (Situations in where the rights of the 1st Amendment, Freedom of Speech, is legitimately curtailed?) ● If individual poses a great harm to society through their speech ○ E.g. dangerous publications (like bomb-making, for example) in

which the state is concerned with inciting of violence ○ Libel — Illegitimately impugning someoneʼs reputation

(slandering) ○ Targeting Groups (hate crime; unfair castigation of some social

groups) ○ If prior contract prohibits it (like confidentiality form) ○ If wartime, threats to war effort

TOPIC: PRISON AND 1ST AMENDMENT RIGHTS: (WHY MIGHT PRISONS WANT TO RESTRICT THE FULL EXERCISE OF 1ST AMENDMENT RIGHTS?\ ● Maintain order ○ Organization is important; canʼt allow conflicts, riots, disruption

that can occur as a result of prisoners being totally free to assemble, to free speech, etc.3 ○ Freedom to Assemble is not respected because (duh itʼs a

prison), and… ◆ Want to stop organizing protests, gang activities, etc, and

also to prevent any possible interracial/intergroup conflicts that might arise from gatherings.3 ○ Prisoners might not be viewed as responsible enough to

exercise their 1st Amendment Rights ◆ Perhaps offenders are viewed as less than citizens ◆ How do we say this or JUSTIFY this? ◆ Deterrence: Need to make prison suck, to maximize

crime deterrence, so we just take away their rights ◆ Rehabilitation: Need to ensure proper behavior

BIG QUESTION: DO PRISONERS HAVE 1ST AMENDMENT RIGHT TO GO ON A HUNGER STRIKE, AND DOES THE STATE HAVE THE RIGHT TO FORCE FEED THEM? ● Key here: Which right is more valid? Here we see a conflict of rights. Which one is better?

NOTE on solitary confinement:3 ● Prisoners in solitary confinement are kept in a room by themselves for 23 hours a day, only 1 hour a day allowed to have contact with people. Arguably very inhumane treatment; guard escorts prisoner out, gets shackled and cuffed, tied to guard.

WHY MIGHT YOU ARGUE THAT SOLITARY CONFINEMENT IS JUSTIFIED? ● It may be for the protection of the inmate (the inmate may be in danger if he/she is released to the regular prison society)

● Helps maintain the order of the prison ● Eliminates possibility of escape ● It is a last resort at rehabilitation

WHY MIGHT YOU ARGUE THAT SOLITARY CONFINEMENT IS NOT JUSTIFIED? ● Very inhumane. Psychological damaging ○ Mind atrophy. Mental health issues (8x higher risk of suicide) ○ S.C. can last for years ● Hinders rehabilitation ○ Canʼt cope with resocialization

THERE IS A CONFLICT OF RIGHTS. Do prisoners have 1st amendment right to hunger strike? Does state have the right to force feed? ● YES:3 ○ Because state has obligation to protect prisoners, because they

are institutionalized.3 ◆ Malnourishment → Death ◆ State requires punishment (death as a way out) ● NO: ○ 1st Amendment must be respected ◆ Rejecting food is a form of free speech ○ Force feeding is a violation of consent

◆ Illegitimate coercive act ○ Potentially hazardous ○ Prisoners are the only ones who can understand solitary

confinement, which is debated as an unjust action. Therefore, they should not be silenced.3

CASE OF MUSLIM PRISONERS WHO SUED FOR RESTRICTIONS THAT MADE THEM MISS RELIGIOUS SERVICES: ● Pro Prisoners: ○ This creates unequal opportunity for different inmates

depending on their work schedules ○ Religious ritual is highly important, and non-replaceable. It is

very core to practice that and cannot be eliminated.3 ○ Penological interests for punishment are not comprised by

changing work schedule ◆ Neither order nor safety is threatened ○ 1st Amendment rights should not be so easily compromised.3 ○ It serves the goal of rehabilitation, because religion often leads

prisoners to rehabilitate. ● Against Prisoners: ○ It would be far too complicated to allow prisoners to reschedule

their work at whim depending on their religious beliefs. Where is the line? Can all inmates start doing this? It could open a floodgate of similar issues. Slippery slope. It is far easier to have a blanket rule that applies objectively to everyone.3

○ Rehabilitation argument: work is important and key to

rehabilitation. ○ Religious worship might just be an unfortunate casualty of

incarceration. Canʼt do anything about it.3

LECTURE 3/04: Sidewalks, Rights, and the 1st Amendment TOPIC: RIGHTS CLAIMS ● We go through the law to make rights claims ● We also use the law to resolve conflicting rights claims

SIDEWALK: What is it? How do we view it?3 ● It is a public form. But what does this mean? ○ We need to go back to the 1st Amendment, where it gives us the

right to “peaceably assemble.” ◆ This right to assemble enables us to change the government,

to meet and exchange ideas to change things we donʼt like about it.

WHERE DO WE ASSEMBLE? ● Public schools (universities) ● Town squares ● Open areas like parks ● Etc

PUBLIC FORUM: A place that is overseen by the government where you have the right to free speech. Public forums include sidewalks! ● Public forums are protected by the 1st Amendment.3

SO… WHAT RIGHTS OF THE SIDEWALK DO WE CLAIM? ● The sidewalk is a means of public transportation. It allows us to be mobile (walk); thus, we have a right to be mobile. This right comes from the 4th Amendment, which protects us from unreasonable search and seizure. This seizure is implicitly defined to include preventing movement. Thus, we are prevented from being stopped without a good reason.3

SO… WE HAVE A RIGHT TO USE THE SIDEWALK. What if thereʼs a conflict of rights, where some people are congregating on the sidewalk in a protest exercising their 1st Amendment rights of freedom to speech and assemble, and the pedestrians who are trying to get by need to have their rights to mobility respected. Then what? Can we restrict activist movements on the sidewalk to allow traffic to move through?\ ● In follow-up, what rules does the state need to follow in order to curtail rights, specifically on protesting? ○ The act must be content neutral. It canʼt discriminate against a

particular point of view.3 ○ One justification would be that...