Position

Is there a perception that this right is above or higher than other fundamental rights, or in general, that it has a particular place in a hierarchy of rights?

Right	Breakout	Contents
Freedom of Association		Numerous scholars offer interpretations of the hierarchy of rights, placing freedom of association at differing levels of importance. Noted by Tom Farer in “The Hierarchy of Human Rights”, human rights are non-negotiable, and thus are prioritized within the hierarchy. As to why certain rights remain at the top of the hierarchy, Farer answers “because all other rights are dependent on them.” Furthermore, Farer claims that a consensus among United States human rights organizations is that the rights to life, physical security, and due process are essential human rights. Excluding freedom of association from his selection of non-negotiable human rights, Farer undermines its importance within the hierarchy of rights. Thus, Farer emphasizes that the rights to life, physical security, and due process hold precedence over the right to free association. Fernando Surez Muller argues that there is a select group of fundamental rights that are essential to the exercise of all other rights. With this, Muller emphasizes that certain rights must be prioritized in order for others to be functionally implemented. When analyzing the Universal Declaration of Human Rights, Muller interprets freedom of association to be a right of particular importance. Muller argues that the rights to communication and expression are impossible to exercise without the right of free association, claiming, “Related to this transcendental right to communication (cell 6) are also all mobility rights (mentioned in articles 13 to 15) because communication is not only a matter of expression but it is also a matter of transporting and receiving the message and this requires freedom of association.” Thus, from Muller’s perspective, freedom of association maintains a high position within the hierarchy of human rights. Explained by Kimberley Brownlee and David Jenkins of the Stanford Encyclopedia of Philosophy, the right to associate often only pertains to certain associations. Because of this, different rights to different associations have varying ranks within the hierarchy of rights. Brownlee and Jenkins claim “However, since not all associations operate according to either implicit or explicit declarations of consent, exactly what counts as consent is a difficult thing to assess: How do we know when association is free? This problem is exacerbated by the hierarchical form that many associations take.” For this reason, Brownlee and Jenkins note that explicit associations, group identifications that are easy to identify and thus protect, are often prioritized within the hierarchy of rights.
Freedom of Expression		The freedom of expression is essential to the development and upholding of an individual’s inherent sense of self and personal dignity, and as a result, the protection of this right is necessary to the protection of society as a whole (Civic 118-119, 1997). After the court ruling of Whitney v. California, which deemed that the freedom of expression is not an absolute right, Justice Brandeis “declared free expression to be the means to attain the truth, and the truth to be at the foundation of liberty and happiness” (Civic 120, 1997).The fundamental nature of this right is protected in the Preambles of the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, and both assert human dignity as the foundation for all other rights protected in the documents, further asserting that human dignity is the foundation of all human rights (Civic 134, 1997). A survey carried out by FindLaw in 2015 found that of the 1,000 American adults asked to participate, 30% believed their freedom of speech to be the right of upmost importance from the Bill of Rights. Although all given rights are important, and it can be dangerous to start ranking rights’ power and relevance, Stephanie Rahlfs, attorney-editor with FindLaw.com states “it's interesting to note that the Founding Fathers placed freedom of speech into the First Amendment as a cornerstone of the Bill of Rights” (FindLaw, 2015). As time has passed, The Supreme Court has even professed this freedom to be “the matrix, the indispensable condition of nearly every other form of freedom;” for example, this right is what allows for the fundamental right to vote, the right which powers democracy, to be constitutionally protected (ACLU 2020). Although the right to freedom of expression falls under a small category of rights with “preferred position,” (a concept which was inspired by Justice Oliver Wendell Holmes Jr.’s opinion in the 1919 case of Schenck v. United States, which ultimately recognized the hierarchal primacy of the First Amendment and the rights protected under it), the right has been tested many times throughout American history (Pacelle Jr.). For example, during times of compromised national security such as WWI, First Amendment rights have been significantly compromised, with some citizens having been censored, fined, and jailed: “It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets” (ACLU, 2020). From this example, we see that although freedom of expression ranks high on the list of protected rights, it does not outweigh the importance of the common good or the need for general societal peace. References: Americans Say Freedom of Speech is the Most Important Constitutional Right, According to FindLaw.com Survey for Law Day, May 1, PR Newswire Association LLC, 2015 New York. Freedom of Expression, American Civil Liberties Union, 2020 New York. The Right to Freedom of Expression as the Principal Component of the Preservation of Personal Dignity: An Argument for International Protection Within All Nations and Across Borders, Mélanne Andromecca Civic, 118-120, 134, University of Pennsylvania Carey Law School, 1997 Philadelphia.
Freedom of Religion		Freedom of religion often conflicts with other human rights. Specifically in contemporary times, other fundamental rights are often prioritized over religious rights. In particular, this is observed with LGBTQ+ rights. Explained by Dr Alice Donald and Erica Howard of Middlesex University, the rights to religious freedom and anti-discrimination are both globally upheld as fundamental rights. Though, Donald and Howard argue, ultimately LGBTQ+ individuals’ rights to non-discrimination hold precedence over religious rights. Explaining how religious freedom is enshrined in numerous human rights treaties, Donald and Howard do not shy from acknowledging the importance of freedom of religion. Though, later explaining its intersectionality with anti-discrimination rights, which they further assert to be a fundamental human right, Donald and Howard ultimately uphold the importance and prioritization of LGBTQ+ rights. In this way, Donald and Howard diminish the dominance of freedom of religion within the hierarchy of fundamental rights. Donald and Howard assert, “As mentioned, the right to manifest one’s religion or belief can be restricted if this is necessary for the protection of public safety, public order, health or morals or the rights of others. The latter includes the right of others not to be discriminated against.” Thus, as explained by Donald and Howard, the right to anti-discrimination places the right to free religious exercise at a lower position within the hierarchy of rights. Though, recent United States court cases have countered Donald and Howard’s positions, denoting a higher status to freedom of religion. Furthermore, within American jurisprudence, freedom of religion holds a particularly higher position in the hierarchy of rights. This was most notably observed in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the court defended a baker’s denial of services to a gay couple on the grounds of religion. Upholding the ability of the baker to discriminate against the gay couple, the court asserted the dominance of religious rights over anti-discrimination laws. Noted by Justice Gorsuch, “The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.” Through this, the court demonstrated that religious rights hold a principal position above other fundamental rights within the United States. REFERENCES: Dr Alice Donald and Dr Erica Howard, “The right to freedom of religion or belief and its intersection with other rights,” ILGA-Europe, 2015 London.
Freedom of the Press		The right to freedom of the press is commonly balanced against other rights and concerns, such as the right to privacy/ reputation and national security concerns. Freedom of the press is not inherently viewed to be above or higher than the right to privacy and potential security concerns, but rather the importance of freedom of the press is considered on a case by case basis, in comparison with the degree of other concerns. In the case of the right to privacy, free press can lead to an invasion of privacy in terms of the right of the public and the government to receive information, and can also lead to defamation especially in the case of false press or press being presented in a false light. When privacy law is applicable, historically, the courts try to assess how newsworthy and important the publication or information is for the public. The right to privacy often falls higher in the hierarchy of rights when the publication is not obviously important or newsworthy, whereas when the publication is very important for news purposes, the right to freedom of the press tends to be perceived as above the right to privacy. Additionally, in defamation cases, the degree to which reputation is harmed is considered by the courts. The courts may be more likely to uphold the right to reputation when a public figure is involved, and the cost to reputation is greater (Emerson 1979, 333). Another important factor is national security concerns; a tricky issue in terms of freedom of the press. There has been disagreement over what necessitates or makes permissible prior restraint on the press due to national security concerns. One example includes the case of New York Times Company vs. United States in 1971 (New York Times Company v. United States). In 1967, Robert McNamara, the Secretary of Defense, conducted a government study about America’s involvement in Vietnam. The work was compiled in 7,000 pages, and only 15 copies were printed. The work revealed that the government had not been transparent with the American people about its engagement with Vietnam. The study was considered classified. Daniel Ellsberg, who had helped with the project, later secretly made more copies of the study and distributed them to New York Times employees who referred to them as “Pentagon Papers.” The Nixon Administration barred further publication of the papers by means of a restraining order due to what they considered national security concerns. The New York Times appealed to the Supreme Court, and the Court ruled that the New York Times could continue to publish the Pentagon Papers. The Court decided that the Nixon Administration did not have enough justification for barring the publication of the Pentagon Papers. Justices took different stances on the issue at hand, with some believing prior restraint to never be justified and others believing it to be justified in certain circumstances, if a national security threat is clear and serious. These justices referred to the need for a “clear and present danger,” a precedent that established, in the case of Schenck vs. United States in 1919, that the First Amendment does not protect speech which creates a clear and present danger with which Congress is equipped to prevent, (Schenck v. United States). In New York Times Company v. United States, the majority ruled that the threat to national security by publishing the Pentagon Papers was too vague and unclear to impose restrictions on the press (New York Times Company v. United States). In certain circumstances, the Supreme Court has restricted First Amendment rights due to national security concerns. Typically, the Supreme Court attempts to find a balance between allowing freedom of the press and disallowing real security threats. References: Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360 New York Times Co. v. United States, 403 U.S. 713 (1971): https://www.oyez.org/cases/1970/1873 Schenck v. United States, 249 U.S. 47 (1919): https://www.oyez.org/cases/1900-1940/249us47
Privacy Rights		Joseph Wronka posits that the UDHR has tiers of rights, arranged by article. Article 1, human dignity, is the first and foremost right. Articles 2-21, which includes the right to privacy in Article 12, are civil and political rights, protecting people from their government. The right to speech, press, religion, and vote are also protected in these articles (Wronka, 1994; UDHR 1948) . Below these rights were the positive rights in which a government should provide “to ensure an existence worthy of human dignity” and solidarity rights (Wronka, 1994) . So, there is some recognition of a hierarchy between fundamental rights, but nothing has been written on the hierarchy among rights of the same tier. In practice, however, privacy seems to be overshadowed by other rights. On one hand, privacy rights can overtake rights such as the freedoms of speech and press. On the other hand, these rights have stifled privacy rights in many instances. Hixon suggests that privacy rights prevail in cases of information gathering but press and speech rights prevail during and after publishing (Hixon, 1987, 178). Mills suggests this difference in protection is due to the publication medium and the perceived benefit to the public (Mills, 2008, 36, 117). In the United States, some scholars have noted that “free-speech and free-press rights almost always trump information privacy rights,” suggesting there is a hierarchy within fundamental rights in at least one nation (Mills, 2008, 108). Hixon referred to privacy as “at best a correlative right,” and “sociological notion,” while Milles calls it a “precondition” (Hixon, 1987, 44, 45; Mills, 2008, 116). Press freedoms only require a “newsworthy” and “public interest” standard to be upheld, while privacy rights have had to be fought for continuously in courts. In this fight, the inadequacy of American privacy law has shown through, stemming from the lack of explicit protection in the Constitution (Hixon, 1987, 76). Public figures continuously have information published about them, protected under free speech, leaving them vulnerable to the news cycles (Hixon, 1987, 133). References: Hixon, R.F. ( 1987) . Privacy in a public society: Human rights in conflict. Oxford University Press. Mills, J.L. ( 2008) . Privacy: The lost right. Oxford University Press. Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights Wronka, J. ( 1994) . Human rights and social policy in the United States: An educational agenda for the 21st Century. Journal of Moral Education 23(3). https://doi.org/10. 1080/ 0305724940230304
Voting Rights and Suffrage		Rights, as outlined in constitutions around the world, the 1948 United Nations Universal Declaration of Human Rights, the 1789 Declaration of the Rights of Man and of the Citizen, and in various philosophical frameworks throughout history, have become integral aspects of many societies and governments. The understanding and view of rights and their implications on the government's structure and role can vary but their presence in vast political arenas cannot be denied. Within these documents however, there are several rights that are considered to be inalienable and should be protected. The right to vote, in the United States and in other countries, can be considered to be in legal limbo compared to other clear guaranteed rights popularly included in the articles mentioned above. In the case of the United States, this nuance has been present throughout the entire tenure of the US Constitution. The Supreme Court has the responsibility of defining voting rights with respect to the United States Constitution, which assigns significant power to the states in the electoral process via the Elections Clause. For example, we can see recent cases such as Bush v. Gore(2000), “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college,” (Bush v. Gore, 531 U.S. 98 (2000)). This decision was split amongst party lines and some have declared the case itself to be “not justiciable,”(Chemerinsky 2001). Yet, the majority opinion of the court also stated, “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors,”(Bush v. Gore, 531 U.S. 98 (2000)). While this decision was split amongst party lines, in “First,” a 2019 biography of retired Justice Sandra Day O’Connor, Justice Scalia who sided with the majority privately regarded the equal protections rationale that the decision was based on as “a piece of shit.”(MacDougall 2020) While this decision seemed to undermine the electoral process, in the Supreme Court’s majority opinion of Wesberry v. Sanders 1964, Judge Hugo Black wrote, “ No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined,” (Wesberry v. Sanders, 376 U.S. 1 (1964)). This case, in response to unequal representation in congressional districts in Georgia, upheld Justice Black’s sentiment and established a voting rights precedent still in effect today. These two cases, among others, reflect some of the complexity when it comes to voting rights in the United States. However, it is interesting to note that when looking at the available study guides for the civics questions portion of the naturalization test in the United States, “The right to vote is the most important right granted to a U.S. citizen,” (“The Citizenship Test” 2015). Scholars have also contributed to the conversation of the importance of voting rights in several ways. Thomas Paine assigns voting rights as the “primary right by which other rights are protected,” (21, Paine 1785). He continues on to say, “To take away this right is to reduce a man to a state of slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives, is in this case,” (21, Paine 1785). President Lyndon B. Johnson echoed this sentiment in his speech before signing the Voting Rights Act of 1965 stating, “This right to vote is the basic right without which all others are meaningless. It gives people, people as individuals, control over their own destinies,” (Johnson 1965). This argument, that all other rights depend on the right to vote, has been one of the more salient arguments in political science that consider suffrage to be the pinnacle of all rights. Joseph Fishkin, a voting rights scholar recognized by the Supreme Court,(Brnovich et al. 2021) adds, “that the individual right to vote is valuable for reasons that cannot be fully captured by broader, structural variables such as the overall level of participation, representativeness, democratic accountability, and so on,”(Fishkin 2011). Furthermore, he builds upon his claim by stating that voting has an innate value “for reasons that are individualistic” and ties personhood with the ability to vote. Other more pessimistic public perspectives also have gained traction throughout the years as misinformation has become more widespread. One of the more famous examples of this is Mark Twain’s alleged quote, “If voting made any difference they wouldn’t let us do it.” In reality, his views were quite the opposite. In fact, in a 1905 interview with the press he stated, “In this country we have one great privilege which they don’t have in other countries. When a thing gets to be absolutely unbearable the people can rise up and throw it off. That’s the finest asset we’ve got — the ballot box,” (Spencer 2019). Essentially, the right to vote is not universally accepted as the most important right in one's life. Arguments have been made in favor of the right to vote but there is no widely accepted status of superiority amongst scholars and political leaders. References: Paine, Thomas. 1795. Dissertation on First-Principles of Government. Chemerinsky, Erwin. 2001. Review of Bush v. Gore Was Not Justiciable. Notre Dame Law Review 764: 1093–1112. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1707&context=faculty_scholarship. MacDougall, Ian. 2020. “Why Bush v. Gore Still Matters in 2020.” ProPublica. November 1, 2020. https://www.propublica.org/article/why-bush-v-gore-still-matters. Bush v. Gore, 531 U.S. 98 (2000) Wesberry v. Sanders, 376 U.S. 1 (1964) “The Citizenship Test.” 2015 https://canalalliance.org/wp-content/uploads/2019/09/Citizenship-for-Us-11-4-15.pdf. “From the Archives: Lyndon B. Johnson Signs Voting Rights Act of 1965.” n.d. www.youtube.com. https://www.youtube.com/watch?v=QJamYFIE3kY. Fishkin, Joseph. 2011. “Equal Citizenship and the Individual Right to Vote Equal Citizenship and the Individual Right to Vote.” Indiana Law Journal Indiana Law Journal 86. https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1001&context=ilj. Brnovich, Mark, Att'y, Justin Levitt, Allison Davis, and Chris Swift. 2021. “Supreme Court of the United States Respondents. On Writs of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF of VOTING RIGHTS SCHOLARS as AMICI CURIAE in SUPPORT of RESPONDENTS * Institutional Affiliation for Identification Purposes Only.” https://www.supremecourt.gov/DocketPDF/19/19-1257/166801/20210120124709720_19-1257%20bsac%20voting%20rights%20scholars.pdf. Saranac Hale Spencer. 2019. “Fake Mark Twain ‘Quote’ Mocks Voting - FactCheck.org.” FactCheck.org. June 13, 2019. https://www.factcheck.org/2019/06/fake-mark-twain-quote-mocks-voting/.