Where do Rights Come From?
Americans “know their rights,” and this is a time honored phrase, but where do your various rights come from? There is no short answer to that question, but a good place to start in the legal sphere is the American Constitution and the Bill of Rights, then you may trace the concept of rights back through history to the English Common Law and the Magna Carta. Rights have been a long time evolving in the history of humanity and are constantly being tested, revised and fought for in the legislatures, courts, and of course sometimes in the streets by protestors. Many people might be surprised to learn that most of our rights are not the right to do something, but rather the right to be protected from government action. I think that many young people are under a misapprehension regarding just how limited the right to be free from government control is in the public sphere. Most of the development in “rights” in the modern post “Warren Court Era,” are of the libertarian type involving privacy and right to make personal choices.
The “Warren Court” recalls an era that expanded civil liberties, civil rights, judicial and federal power to reign in what was perceived as abuses of government power that was seen as often focused unfairly on minorities and the powerless. The Supreme Court in that era laid down many principles of criminal procedure tying the Bill of Rights to the rights of the criminal defendant. Many of the rights of the criminal defendant come through the 14th Amendment guaranteeing to them that parts of the 4th amendment, 5th amendment, and 6th amendments, are applicable to criminal suspects such as a right to due process, including rights regarding search and seizure, rights to confront accusers, public and speedy trials, to have compulsory process, the assistance of counsel, and of course the right against self-incrimination or the right to be silent. Subsequent to this era these criminal procedure rights have been refined and even restricted. Good criminal lawyers will respect and fight for the right to due process for every criminal defendant.