How should a republic deal with competing rights? The phrase “competing rights” refers to situations where citizens’ constitutional and legal rights clash.[1]
Examples:
- Is the media publication of personal information the exercise of free speech or an infringement on the right to privacy?
- Is the denial of service to a person discrimination or the legitimate exercise of religion?
- Whose free speech should prevail: a controversial speaker at a public event or those determined to shout down that speaker?
You can probably think of more examples.
These sorts of examples are vexing because the Constitution and its amendments primarily prohibit government infringements on our political and civil rights without governing our individual behavior. The ban on slave-holding and involuntary servitude in the 13th Amendment may be the only exception.
Why this matters: Managing conflicts is one of the most fundamental roles expected of any government system. Conflicts over protected liberties (rights) are among the most hard-fought. People involved in such conflicts will feel less inclined to keep our republic if they believe their situation was not dealt with fairly.
There are at least two ways lawmakers and the courts have tried to deal with conflicting rights.
- One way is to try to regulate conflicting rights without taking them away. For example, a controversial speaker might be allowed to proceed in one location, while those opposed might be allowed to protest in another location. Yet, the 1st Amendment says, “Congress shall make no law … abridging freedom of speech … ,” so how could it legitimately be regulated?
- Another method is to come up with some kind of hierarchy of rights. Some legal theorists refer to this as the “preferred position doctrine,” which gives 1rst Amendment rights priority over all others.[2] This prioritization also seems flawed. For example, how could free speech, free press, freedom of religion, free assembly, and the right to petition have value in a republic that does not also vigorously protect voting rights?
We cannot offer any great wisdom in this context. We do, however, propose that finding ways to be respectful and fair should be on everyone’s minds – especially since no one can be sure when power will change hands and for how long.
Photo credit: Michael O’Hara. Middlebury College, March 3, 2017.
[1] See Zucca, L. (2008). Conflicts of fundamental rights as constitutional dilemmas. http://www.stals.santannapisa.it/sites/default/files/stals_Zucca.pdf
[2] See Pacelle, R. (2009). Preferred Position Doctrine. https://www.mtsu.edu/first-amendment/article/1008/preferred-position-doctrine