What happens when constitutional rights contradict each other?

[DetlefK]

So, the constitution says that you have certain rights. What happens when you come into a situation where upholding one right means violating another right?

Is there a hierarchy of rights?

And who decides what that hierarchy is?

[beachbum bob]

1. be best to offer such a case. BTW, its a purpose of the Supreme Court

[DetlefK]

2. E.g. 1st and 2nd Amendment.

What if there's a situation where it's impossible to uphold both at the same time. Where one of these MUST be violated. How do we decide which one it is?

[beachbum bob]

3. under what scenario is the conflict? I don't see any possible one occurring....

again suggest a situation....

[DetlefK]

4. That's irrelevant.

The question is: Is it okay to violate one right for the sake of upholding another right?

[beachbum bob]

5. no context. As we have had the constitution for a few hundred years and no instance

of conflict of having to uphold either the 1st or 2nd but not both seems too far fetch to even discuss. You can't even provide a scenario.

[DetlefK]

6. Okay, if you insist, here's one example of clashing rights:

"The right to keep and bear arms" vs "the right to live without fear in a peaceful society"

[WPB_dem]

7. Bad example

Where does the constitution guarantee you the right to live without fear in a peaceful society?

[DetlefK]

11. Waitwaitwaitwaitwaitwaitwait

I was being told in another thread that human rights exist ad hoc. They exist whether we write them down or not, whether we explicitly grant them with some document or not.

Are you saying that I only have human rights if I live in a country that mentions these human rights in its constitution?

[discntnt_irny_srcsm]

12. Hi again

As fan of the "innate rights" platform, I will say that these rights are part of each human. This is a founding postulate for the US government as articulated in the Declaration. Many people in the British colonies viewed the British government as failing in many regards to respect some basic rights. They founded a new nation.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Constitution and BoR are a consequence of the Declaration. Each colony (Delaware, Virginia...) was considered a separate sovereign state. Leaders of the time advocated for these states forming a confederation as they had common interests and a common enemy. The federal government was intended as a means of unifying the states. This is the reason that feds generally deal with crimes committed on an interstate level or with crimes committed on federal lands. Most crimes assaults, murder, auto theft... are the purview of states. If you murder in New Jersey and flea to New York you are not tried in New York if you are caught there. There is an extradition hearing and you are returned to New Jersey. Similar process as if you were caught in Canada.

Many state Constitutions contain an enumeration of rights. These Bills or list of rights are not idly naming things. They exist as protections against the same usurpations experienced by the people under British rule in the 18th century. They are there to protect the people from their own governments. These protections operate as criteria for potential challenges in court to laws and acts by the government. The McDonald v. City of Chicago and DC v Heller cases are instances of this type of challenge. The aim of government is to provide for people to have a level field in which to pursue their own lives. On the individual level it is correct to permit a means of self-defense. A means by which a person can end an assault where they have a valid concern for their lives, bodily injury, safety, etc. is a right. There is a science to the development of tools (arms and weapons) for that purpose. The double edged sword of this is that the same tools for defense make good tools for the criminals for offensive use.

The idea of the 2A was as a protection against government disarming individuals. For federal purposes the reason therein explained was for militia purposes. The militia is named in the Constitution in several places. This gives specific nexus to the federal government for such a law. It is one thing to require that a government has a right to raise a militia and military but it is quite another to expect an effective one to exist apart from certain essential experiences such as skill with a firearm.

This right exists apart from any government protections against attempts at legislative interference with it. How best to enact the valid limitations of this freedom is the core of gun regulation.

You ask specifically about:

"the right to live without fear in a peaceful society"

There is no such right. In reality there are aggressors among us both animal and human. Any belief that this reality can be changed by passing a law, is a personal or shared fantasy by a subset of people.

The only real control among humans is self-control. The "control" aspect of gun-control is a myth. Laws act principally as criteria for use in court.

[DetlefK]

13. How do you know that there is no such right?

As fan of the "innate rights" platform, I will say that these rights are part of each human.

You ask specifically about:
"the right to live without fear in a peaceful society"
There is no such right.

1. How do you know that there is no innate right to live in peace? What's the point of outlawing murder except for furthering the right to live in peace?

2. Coming back to my OP: What happens when two rights exclude each other?

[discntnt_irny_srcsm]

14. mea culpa

I actually don't know that there is no such right but, as you insightfully explained, that right would be in conflict with an individual RKBA and the idea of self-defense. In conclusion, there may be such a right but it is in conflict the current US foundational principles. Protecting such a right would require reformulating the US and rewriting its foundational plans.

1. How do you know that there is no innate right to live in peace? What's the point of outlawing murder except for furthering the right to live in peace?

Murder is illegal because there is a right to life. Killing an unjust aggressor in self-defense is not nor should it be illegal. Nor should it made unreasonably difficult.

2. Coming back to my OP: What happens when two rights exclude each other?

Please provide an instance where this could happen. I don't think there is one.

[JayhawkSD]

8. Agree with WPB_Dem

There is no right to live without fear. I have a fear of heights. Are tall buildings and high bridges unconstitutional?

The right to keep firearms does not assure, or even imply, the right to use them to kill people. No one has ever suggested that the law against murder is unconstitutional.

[mahatmakanejeeves]

9. Try this:

Edith Roberts Editor

Posted Tue, March 6th, 2018 7:07 am

[e-mail]

Tuesday round-up

....
Briefly:
....

• In an essay available at SSRN, Michael McConnell considers Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding; he maintains that although “[s]ome may say that [a decision in favor of the baker] prioritizes one right over another – the right of freedom of speech, or perhaps the freedom of religion — over the right not to suffer invidious discrimination,” such a decision would instead “put these rights on an equal plane.”
....

Recommended Citation: Edith Roberts, Tuesday round-up, SCOTUSblog (Mar. 6, 2018, 7:07 AM), http://www.scotusblog.com/2018/03/tuesday-round-up-418/

Dressmakers, Bakers, and the Equality of Rights

You can download the paper or open it as a .pdf document.

DRESSMAKERS, BAKERS, AND THE EQUALITY OF RIGHTS

Michael W. McConnell

Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, Senior Fellow at the Hoover Institution, and former Circuit Judge on the United States Court of Appeals for the Tenth Circuit

[discntnt_irny_srcsm]

10. try this one:

http://abc7chicago.com/religion/woman-fired-over-religious-knife-wins-lawsuit/389533/

Good luck

[lastlib]

15. Fair trial vs. free press: .....

Prejudicial press coverage of a criminal case poisons a pool of potential jurors. Can a court "gag" the press, barring coverage of the case to prevent infecting jurors with information/opinion prejudicial to a defendant? Could Lee Harvey Oswald have gotten a fair trial in the U.S. for the assassination of Pres. Kennedy?

Short answer: courts have to adjudicate the priorities, and decide on the appropriate remedy in any such case where constitutional rights appear to conflict. In our system, we charge the judges to have the wisdom of Solomon to decide what the constitutional priorities are, and to protect the rights that are judged to be the most important, with the least harm to those other rights.