I recently re-read Alan Dershowitz's small book on the Declaration of Independence, which he followed up with Rights From Wrongs, which is a somewhat rambling expansion of his "nurtural rights" replacement for "natural rights" argument. He firmly is on the side of the needs for rights, but argues that they are human inventions, not discoveries from nature. To wit:
The function of rights--indeed, of law and morality--is to change that natural condition for the better: to improve upon nature, to domesticate its wild beast, and to elevate us from the terrible state of nature into a state of civilization. It is a never-ending challenge. If the advocates of rights fall asleep at the wheel for even one historical moment, there is danger that the natural human condition will rear its ugly head, as it has so many times over the millennia.
His argument at times is a bit question begging. AD repeatedly relies on the fact that our views of natural rights were divided and flawed, including support of slavery, but the same could be said about our understanding of scientific laws. The fact we over the years put into the mouth of God some dubious things suggests our reasoning abilities are flawed. It doesn't by itself refute the whole idea of natural law itself. Ditto the idea that natural law is widely open to debate. "Nurtural Rights," rights developed from human wrongs, also are open to debate.
I agree that the idea of "rights" (and "law" in that context) is a human invention. OTOH, I don't think the idea of "natural rights" (putting aside if they arise from nature and/or nature's God) is totally bogus. In some real sense, the Declaration of Independence as concerned about rules of "nature," as in those rules that go beyond what established governments set forth. Consider, the "rule of the jungle" as a metaphor for how life is really like on the street or in the war zone. This is our "nature," our life beyond civilized governments. And, to the degree we agree that there must be rules, rights, even here, "natural rights" has some force.
In some fashion, even the simplest tribal bands can be said to have a "government," but I doubt it is what Thomas Jefferson quite considered when writing that word in this context. Next, when determining the rights that are necessary for our basic happiness, for any just society, we also need to look to our natures. AD accepts the point, but notes the "is" of nature is not the same as the "ought" of rights. Sure. All the same, when looking at rights that go beyond positive law, rights that are necessary for our happiness in some "natural state," what word should we use? Natural rights in some fashion, again imperfect as it might be, makes sense.
[Are they "inalienable?" By whom, I guess. If "rights" are inventions, in some fashion, they can be removed. OTOH, if there is some basic rights necessary for happiness, no truly free government could "alienate" them. Anyway, no law tends to be truly absolute, even if it says so. And, how does one "alienate" a right to liberty etc.? If you choose to restrain yourself, the liberty is still there.]
Finally, when determining "natural rights," we look at those rights necessary for our happiness pursuant to our nature and experiences. I don't see any problem with this being an ever developing process, so don't know why AD thinks the imperfect application of the process proves natural rights lacks force. It might better to think of these as "unenumerated rights" or "human rights" or whatever, "natural rights" having some baggage and all. And, yes, this is different than arguing that the rights are just there to be found, like rules of gravity.
At oral argument, some members of the court -- including, most notably and surprisingly, some who were in the majority in the Court's original decision recognizing equality of rights between straight and gay, In Re Marriage Cases -- seemed attracted to the notion that the people have an inalienable right to do whatever they want. Dean Starr made this argument for the opponents of Proposition 8, but with all due respect that is not an affirmation of inalienable right, but a prescription for tyranny.
Conservative Obama/Prop 8 supporter* Douglas Kmiec provides a somewhat surprising analysis of the ongoing court challenge. Basically, he thinks the opponents of the measure have a point, at least to the degree that they have a sound (if not necessarily slam dunk) argument that the fundamental right at stake can very well make stripping away the rights of same sex couples a basic structural change that requires a supermajority. The people themselves, as recognized by previous state precedent, agreed to this framework. Comparably, the idea of some "natural rights" that the Parliament could not deny was in effect agreed upon by the colonialists.
In effect, his solution is to interpret Prop 8 rather narrowly as basically about terminology. And, push for an across the board removal of the word "marriage" (a religious word), which in return honors the higher scrutiny given by the Californian Supreme Court to sexual orientation. I do not think "Only marriage between a man and a woman is valid or recognized in California" is just about terminology. Did those who vote for the measure think calling it "espousal," applicable to both same sex and different sex couples, was different? I also understand that "marriage" for many people has a religious flavor, but many also simply go to city hall. Are birth certificates akin to baptismal certificate too?
But, apparently the Kmiecs of the world do find this determinative, concerned not about the state recognizing unions for both that have the same benefits, but use of the word "marriage" alone. And, arguments against same sex "marriage" often tend to have a religious flavor, including (unreasonable) fears that somehow they will interfere with religious rights somehow. I do wonder how Prop 8 is acceptable even in this narrow sense given it explicitly favors a certain group by gender (or sexual orientation) by recognizing "marriage between a man and a woman" alone. The textual argument has some force -- up to a point -- but it still is discriminatory. You simply cannot get around that.
All the same, yes, if the court can somehow decide that the proposition is narrow in scope, reminding that its strict scrutiny protection of sexual orientation holds true, it could be a good solution. After all, the legislature, and the governor too, has spoken in support of equal protection of all in this context. Prop 8 might make it impossible to have true equality by use of the word "marriage." So, go around that barrier, and use some other word. Given the baggage "marriage" has, this would be beneficial. I seriously do not know if "espousal" ("spouse" has a marriage flavor, doesn't it?) will work, but hey, maybe it will.
Bottom line, Prop 8 threatens a basic fundamental right, one many deem "inalienable" (which has force, even if it is a legal fiction). Constitutional avoidance is a good approach here, especially when the bigots left themselves open to it.
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* An op-ed cited by Part II of his analysis notes he did so on "religious liberty" grounds. Facially, that sounds really bogus, but his proposal puts a somewhat different spin on the matter.