What are rights and where do they come from? Behind the word “rights” are two distinct concepts: a moral and political call to action in the absence of a legal right (i.e., a right to fight for suffrage where none exists) and a right created by law, such as the right to vote. The two ideas are certainly related, but the line from natural rights to legal ones may not be at all direct, observes Nobel Prize–winning economist Amartya Sen.
Public recognition of a right often leads to legal recognition, but laws are not the only avenue for establishing rights. Organizations such as Doctors Without Borders and the Red Cross help advance the cause of human rights (such as a right to health care) simply by doing their work. And there are certain cases in which rights can be better established through social criticism and public debate than by statute. For example, law is not the best way to protect a woman’s right to have a voice in family decisions.
Within the legal sphere of rights, laws do not necessarily need to be changed in order for new rights to be legally recognized. Recognition can come through judicial interpretation. It’s “hard not to be an ‘originalist’ in some sense” when interpreting the Constitution, Sen says, but even that leaves a lot open to discussion about “what exactly of the original enterprise needs to be preserved”: the specific language used or the “constitutional motivation.” Interpreting the Constitution in light of the motivations at its core—the Framers’ vision of a system that would “make room for people with divergent interests and values to live together”—Sen argues, is a more compelling method for keeping it modern.
Surprisingly, adhering to a strict textual interpretation of the Constitution does not proscribe some accommodation to modern ideas. Over time language evolves, and some of the words of the Founders today mean something quite different than they did in 1787. As a result, even a strictly textual reading will change over time. Though the evolution of words and our ideas about human rights may not correspond exactly, it’s important to acknowledge that judges who embrace originalism are not just machines but interpreters of words, which, as Samuel Johnson put it, “are but the signs of ideas.”