Category: Bill of Rights

People and their Rights

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February 22, 2026

By Stephen Stofka

On Friday, the Supreme Court announced its decision that President Trump’s tariffs had exceeded the bounds of his authority. Trump has declared that, as President, he has a right to do anything he wants if he thinks it is in the best interests of the United States (Source). Alex Pretti was trying to shield a woman protesting ICE immigration enforcement when he was shot down by border patrol officers (Source). Newly elected mayor of New York City Zohran Mamdani supports the principle that everyone has a right to decent, quality housing (Source). We use the word right to describe a broad set of claims. This week I want to explore the concept of rights.

President Trump claims an authority rather than a right. An authority is attached to a person’s job, or their role in society. Alex Pretti was exercising his First Amendment right at a protest in Minneapolis. Video of the incident shows that his posture to ICE agents was defensive. He was carrying a handgun, thereby exercising his Second Amendment right, but made no move toward his weapon. In wrestling Pretti to the ground, an agent discovered the weapon, yelled that Pretti had a gun, then threw the gun away from the scuffle. Another agent a few steps away shot Pretti in the back several times. The agents clearly did not recognize Pretti’s First or Second Amendment rights.

Both the First and Second Amendment are considered first generation rights. These arerights that prohibit or restrain the government and its agents from taking certain actions. The rest of the Bill of Rights except the Sixth and Seventh have similar characteristics. Some background. A few weeks after President Franklin Roosevelt died on April 12, 1945, nations around the world met in San Francisco to create a framework for a United Nations (Source). A few weeks after that conference, Germany signed a final surrender on May 8, 1945, known today as V.E. Day. Several months later Japan surrendered and the United Nation was formally created on October 24, 1945.

In 1948, the U.N. issued a Universal Declaration of Human Rights, or UDHR, in which they recognized five categories of rights, civil and political, followed by social, economic and cultural (Source). These categories were familiar to political scientists and sociologists but this was the first time that an international body had recognized them. Like the First Amendment, it recognized the natural rights of speech and religious belief, the first generation rights. It also recognized a freedom from want and a freedom from fear that President Franklin Roosevelt included in his State of the Union speech on January 6, 1941 (Source). These are second and third generation rights.

As I noted above, civil and political rights are considered first generation rights. They protect private citizens from government interference and are called negative rights (Source). The first amendment, for example, states that the government shall not prohibit or abridge the freedom of speech. These are restraining verbs. First generation rights assumed that all people had certain natural freedoms, like the freedom of speech and worship. They had a right to privacy from government snooping. The government does not have to provide these freedoms to individuals because they are assumed to exist. Some people insist that these natural rights come from God.

A person might have a right to free speech but the government does not have to provide a printing press to each person. That would be what is called a positive right. The last three rights, social, economic and cultural, are considered second generation rights. They are positive rights stipulating what the government should or must provide. Education is an example. It is difficult to make a direct case for a natural right to public education but human rights organizations advocate for a right to education as an issue of equality, considered a natural law of civic society. The Equal Rights Trust, based in London, has published a guide on how to compose such arguments (Source). However, conservative judges in the U.S. have a distaste for litigation involving economic rights, considering them non-judiciable and best left up to the legislative and executive branches of government (Source).

Second and third generation rights become judiciable when they involve constitutional first generation rights. In a 2020 decision in McGirt v Oklahoma, the Supreme Court ruled that the U.S. Government had never formally disestablished the reservation of the Creek Indians in eastern Oklahoma. That meant that the Creek Indian Reservation had jurisdiction over certain criminal cases, not the state of Oklahoma. The court’s recognition of the 1833 Treaty set a precedent for the sovereignty of other tribes as well. The case was decided on a 5-4 vote when the conservative Justice Gorsuch sided with the four liberal justices on the court. Recognition is the other axis I want to explore this week.

Rights must be recognized. If Gorsuch had agreed with his fellow conservatives, the vote would have gone against the Indians and for the state of Oklahoma. Institutional recognition depends on the ideologies and sympathies of key human beings within an institution. Rights are fragile wisps of thought smoke. Without formal recognition by institutions with power, there are no rights.

Notice that first generation rights generally save the government money because they stipulate that a government not take action. Second generation rights cost the government money since they call for the government to provide certain material comforts. Third generation rights are international accords, or what some call international law (Source). Because there is no central body to enforce international law, these rights depend on cooperation between nations. President Trump has indicated that he doesn’t need international law because he has his own morality and he doesn’t want to hurt anyone (Source). What of the  75 to 100 killed in the capture of Venezuelan leader Nicolas Maduro? (Source) What of the hundreds or thousands of civilians at risk if the U.S. attacks Iran? (Source) Like many leaders who counts the loss of human lives, there is a great deal of discounting included in the count.

The words of the Declaration of Independence recognized an equality that was contradicted by the realities of political rights in the colonies in 1776. The words of the Declaration stated that “that all men are created equal” but those sentiments were merely a composite of popular sentiments, Jefferson wrote (Source). In the latter part of the 18th century, idealist sentiments had to exist within a class system familiar to the founding generation. The rationalist aspirations expressed in the Declaration were goals, not descriptions of political, economic and social life at the time. Perhaps we can read the sentiments of the United Nations’ UDHR with the same understanding.

Excluded from the union of all men were women, those without property, indentured servants, Indians and slaves. In most states, only white men with property who paid taxes were allowed to vote. Over 200 years, these excluded groups were awarded political rights. During the four decades after the Constitution was written in 1787, most states dropped the property qualification for men over 21 to vote.

For many decades, women lobbied for suffrage. Women’s rights activists Elizabeth Cady Stanton and Susan B. Anthony felt that the 15th Amendment granting the vote to black males but not women was an insult to all women. The argument against women voting was that a wife or unmarried daughter would vote however her husband or father told her. This effectively gave married men and men with children an unfair advantage over single men and childless men. In a representative republic, that just wouldn’t be fair, would it? If this reasoning doesn’t make sense to you, it’s because you are living in the 21st century.

In 1857, when the Dred Scott case came before the court, Roger Taney, the Chief Justice of the Supreme Court, thought that he could end the decades-long disagreements over slavery and the rights of slaves. In Taney’s reading of history, slaves had no standing to sue. Six other justices agreed with Taney. In writing the majority opinion, Taney stated, “When the Constitution was adopted, [negroes] were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its ‘people or citizens’” (Source). Case dismissed.

But Taney went further, despite two justices in the majority who urged him to keep it simple. Taney wrote that when the Constitution was written, negroes were regarded as “so far inferior that they had no rights which the white man was bound to respect.” Ouch, an ignominious sentiment that anti-slavery advocates like Thaddeus Stevens used to tarnish Taney’s reputation. But Taney wasn’t done. His reading of historical jurisprudence convinced him that Congress had no constitutional right to prohibit slavery in Federal territories acquired from the French after the Constitution was written. The decision nullified Congress’ legislative power in this regard. Instead of rendering the issue of slavery moot, the Dred Scott decision made it clear to many in the north that civil war was the only way to tame the rebellious southern states. The election of Abraham Lincoln in 1860 made it clear to those in the south that secession was the only remedy. The Dred Scott decision demonstrates that some questions can not be resolved by judicial decree.

In 1973, the court recognized a right to privacy in the Fourteenth Amendment and that right  justified the court’s ruling that state laws prohibiting abortion were unconstitutional. At the time, 36 states had laws prohibiting or restricting abortion. Justice Ruth Ginsburg, an advocate for women’s rights, thought the decision was too hasty. Twenty years later, President Clinton appointed her to the Supreme Court. Fifty years later, a decidedly conservative court overturned that recognition.

Rights do not exist on some separate plane of existence. They must be recognized by civic institutions. Recognition is an evolving process, not a fixed point in time. It must be maintained and nurtured.Throughout our lives, we must fight to maintain our rights or to win official recognition of other rights that we think are intrinsic to the human experience. I hope to see you next week.

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Photo by Nathan Dumlao on Unsplash

The Reins of Judicial Power

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July 21, 2024

by Stephen Stofka

This week’s letter is about an alliance of business interests and libertarians alarmed by the growing power of the federal government that emerged during the 1930s Depression and enabled by a shift in judicial interpretation on the Supreme Court. In the following decades, executive agencies expanded their authority by assuming powers held by each of the three branches (Epstein, 2014). The agencies wrote rules like a legislature, administered the rules with or without the assent of the President, and resolved controversies in legal interpretation like the judiciary. When the Court’s decisions challenged the traditions of religious groups, social conservatives joined the coalition.

Social unrest in the 1960s followed by political turmoil and economic stress in the 1970s accompanied a generational shift in power in the Congress. A coalition of civil rights advocates  and environmental activists helped pass legislation in both areas. In the southern states where resistance to federal control was still active a century after the Civil War, voter sentiment began to shift from the Democrat Party to the Republican Party. Extractive industry groups increased their lobbying efforts to check environmental laws that increased their costs or delayed their projects (Kraft, 2022). In the 1970s, environmental activist groups turned to the courts to block industrial developments (Smith, 2022). Many of these controversies occurred in federal district courts where 860 justices with life tenure decided the application of the rules. Business groups recognized the need for judges sympathetic to any judicial philosophy that promoted a diffusion of government power to the states and individual business interests. Large corporations, enjoying many of the legal rights of individual persons since the 19th century, had revenues greater than those of many state governments, allowing big businesses the power to steer state and local policy toward maximizing profits.

A hybrid form of judicial interpretation called textualism/originalism was an effort to develop objective rules of jurisprudence to guide decisions in the lower courts. Textualism focuses on the legislative text while originalism focuses on the history of statutes and the Constitution (Eyer, 2022). Together the rules encourage justices to stay faithful to the text, history and tradition of the law. Six justices on today’s current Supreme Court hold the reins of this team of horses, which sometimes pull in opposite directions. Four decades in development, textualism and originalism have not brought the sought after clarity. Lower courts have sometimes responded with contradictory decisions to recent Supreme Court precedents, resulting in a judicial recycling of controversies in which the Court clarifies an earlier precedent.

As executive agency power expanded in the decades following World War 2, the Supreme Court expanded individual rights in its interpretation of the 14th Amendment. Richard Epstein (2014, p. 121) voices the conservative sentiment when he called this period a “veritable explosion of new rights.” The 1973 Roe v. Wade decision overruled state laws that prohibited abortions at various stages in a pregnancy, determining a right to privacy in the 14th Amendment. Social conservatives, business interests and libertarians formed an alliance of think tanks to limit the expansion of judicial and executive power.

Conservatives decried the Court’s Roe v. Wade decision upon its publication. In an interview late in her life, liberal Justice Ginsburg faulted the reasoning the court gave in that decision. She explained that the decision should have been based on a principle of gender equality clearly stated in the 14th Amendment. The Court’s ruling, based on a presumption of privacy, left the decision vulnerable to repeated attacks by groups of social conservatives. A coalition of religious groups, still angry over the Court’s 1962 decisions banning prayer in schools, now found common cause with business interests angry about the expansion of executive agency power.

For some foundational understanding of this revolution in judicial interpretation, readers will remember that the Bill of Rights was a package of ten amendments submitted to the states for ratification in conjunction with the Constitution. They applied to the federal government and were meant to assuage any concerns that this newly created federal government would impinge on the rights and power of state legislatures and the small number of individual citizens allowed to vote in each colony (Klarman, 2016). The enumerated powers stated in the Constitution was designed to define and contain the powers of the federal government but left unsettled or undefined powers to the states. In the century following ratification, the Court’s rulings gave preferential treatment to state autonomy in controversies over Bill of Rights protections. The Supremacy Clause of the Constitution gave the federal government priority if a federal law contradicted state law, but if there was no federal law resolving a controversy, state law took precedence. Separation of powers included the three branches within the federal government and between the federal government and the states.

For an evolving history of jurisprudence, I will turn to the National Constitution Center, a bipartisan independent organization authorized by Congress to educate the public on the history, text and meaning of the Constitution. They offer a free curriculum of classes on the Constitution for readers who want to expand their knowledge of the controversies related to the Constitution and its Amendments. What follows is a synthesis of a class section on selective incorporation, the Court’s application of protections for individuals to the states law.

Following the passage of the 14th Amendment, several Supreme Court decisions limited its protections against state abuses. In the 1925 Gitlow v. New York decision, the Court held that a state could not violate an individual’s First Amendment rights. In the 1960s the Supreme Court, headed by Chief Justice Earl Warren, further expanded individual rights, reasoning that the due process and equal protections guaranteed by the 14th Amendment made Bill of Rights protections applicable to the states as well as the federal government.

Before the rulings of the Warren Court, individuals had few protections against abuses by state governments. States routinely violated protections against search and seizure contained in the Fourth Amendment, the right to counsel stated in the Sixth Amendment, the protection against self-incrimination in the Fifth Amendment, and the right to free speech in the First Amendment. As I noted last week, a minority of rural voters in some states controlled the legislature through clever districting rules that magnified their representation and interests in the state legislature.

As the court has applied combinations of textualist and originalist interpretation, it has satisfied the wishes of the coalition of social conservatives, business interests and libertarians. Its Dobbs decision overruled the 50-year-old precedent set by Roe v. Wade, pleasing social conservatives. It overruled previous precedent set by the Bakke decision in 1978 that established affirmative action, pleasing business interests and libertarians. In 2008, its Heller decision established an individual right to own a gun, satisfying libertarians. It 2010 Citizens United decision overrules McCain-Feingold limits on corporate political contributions, giving business interests a greater opportunity to influence policy. Social conservatives are hoping that the court’s next term will overturn a right to same sex marriage established by the 2015 Obergefell decision.

Next week I will look at the conflicting priorities in textualist/originalist analysis and how its methodology differs from the more traditional analysis that focuses on the purpose of a law.

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Photo by Jim Strasma on Unsplash

Keywords: civil rights, environmentalism, amendments, Bill of Rights, Supreme Court, textualism, originalism

Epstein, Richard Allen. (2014). The classical liberal constitution: The uncertain quest for limited government. Harvard University Press.

Eyer, K. R. (2022). Disentangling textualism and originalism. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.4090893

Klarman, M. J. (2016). The Framers’ Coup: The Making of the United States Constitution. Oxford University Press.

Kraft, Michael E. 2022. Environmental Policy and Politics. New York: Routledge, Taylor & Francis Group.

Smith, Kimberly. 2022. “Environmental Policy In the Courts.” In Environmental Policy: New Directions for the Twenty-First Century, eds. Norman J. Vig, Michael E. Kraft, and Barry George Rabe. Thousand Oaks, CA: SAGE. essay, 137–54.