ABSTRACT
The language of rights is a normal part of our political conversation, yet we disagree in important ways about what they are. We agree that rights are what lawyers call “a recognized privilege or immunity.” 14 Unlike most of our political decisions that can be altered as our people and legislatures change their minds, rights are protected and immutable. They either empower us to commit certain actions (a privilege) or protect us from specific government action (an immunity). This sounds well and good until we realize that the power to act and the ability to resist actions can be directly contradictory. If we have political rights to control our environment (privileges) but other people have rights to not be controlled (immunities), who has the upper hand? The heart of the dispute is not whether privileges trump immunities or the reverse, but instead who holds the right? If we, the collective people of the Constitution, hold the right, then we can act in a democratic fashion based on the will of the majority, but if we, the individual people of the Constitution hold the right, then we can resist the decisions of the majority. Different answers to the question of collective versus individual rights have an immediate impact on which actions are constitutional or unconstitutional.
