In recent news, a very common phrase I have heard is "the limitation of a right." It has caused me to pause and consider our rights under the Constitution and how those may and must be limited for different circumstances. But further, I have also considered what is the proper response of our legal system when those limitations are violated and the power from one's rights is used improperly.
To understand what it means for a right to have limits, we must examine what the right is and how it can be applied. For example, in America we have the right to free speech protected by the First Amendment. This means a person can say and express his opinion and belief about a topic without being thrown in jail or fined, merely for holding and speaking that viewpoint. That is what the right protects. It does not mean a person can say anything under any circumstance without consequence -- or in some circumstances those words being criminal.
Most famously, Oliver Wendell Holmes Jr. exemplified the limits of free speech in the 1919 Schenck case, stating "free speech would not protect a man falsely shouting fire in a theater and causing a panic." This is a clear case of attempting to harm others or to create a lack of order by the means of false speech. So, in this case "lying" can be a crime and is not protected by the intent of the First Amendment. While this is a tricky topic with lots of debates and details, this should demonstrate that a person is not free to speak anything at all times under every condition; therefore, the limitation of a right.
This clearly applies as a general principal to all legal rights. The idea really comes down to a precept versus a literal interpretation - or as some might phrase, "the spirit of the law." Of course with law, specifics and details are important. One cannot go to court to prosecute a criminal for smoking banana peels by merely lumping "Musa" with all illegal drugs and claiming the spirit of the law is that people should not do drugs. So, there is a balance of intent and legal phrasing required in any legal system.
Our system is filled with judges and lawyers who argue over where to draw the line and how to interpret precept versus literal wording. On a case by case basis, especially if one's client is accused, these debates are important. However, for the general idea I am presenting, understand limits can and sometimes must be applied is enough. However, as I said previously, the response to those limits - at least legislatively - is something we should also consider.
Back to the point of limited free speech...we have established that yelling fire (when there is not one) in a crowded room, can be a crime, as can making bomb threats, lying to obstruct justice, defaming speech, deceiving or conning intent, and even obscenity. When the right of free speech is abused in such ways, those actions become (or can become) criminal. As stated above, there are reviews and tests of whether the incident involving said speech has exceeded the limit of the precept and intent of the protected right.
However, what does not occur is the concept to remove the original right. When a person is charged with inciting a riot, the event is measured to determine if his or her speech is protected. No one goes back to Congress and attempts to abolish free speech from the Bill of Rights. While refinement of the limits might occur, the precept of free speech remains. And this should apply to all of our rights and even to many of our privileges under the law.
A person has the right to religion and creed. It is not illegal to believe one is absolutely superior to other persons who do not hold the same belief system. That belief is protected by freedom of religion. However, if one abuses that belief and puts into action the slavery of other people because of his or her philosophy, then those actions are still criminal. The belief is not, but the action is. When cults are discovered where wife-slaves are being held in a compound, the leader should be charged with the crime without society being in fear that freedom of religion might be revoked because of this one bad apple.
To be just and ethical, we must separate the right from behavior based on the belief that right allows any action surrounding it. Speech and religion are more abstract than other rights. Sometimes that separation is more difficult. The Second Amendment is a good example. Possessing a gun is closer to behavior than possessing an opinion. Therefore, many have a difficult time separating the right of having the gun from the abuse of using the gun illegally. But even when someone does use a gun illegally, in theory, we should not put the right on trial but rather put the criminal on trial -- as we would do for a bomb threat or libel.
Another difficult separation would be immigration. Allow me to make a very specific example involving refugees. I believe anyone from anywhere in the world has a fundamental right to become a citizen of the United States. But as with all rights, there are limitations. Persons with serious criminal history or ties to terrorism are obvious limitations to one's right to American citizenship. There are many other limitations too, but for the sake of my point, let's just focus on the precept of the right and not the details of limitations. Refugees do have the right to enter our borders; however, what they may not have is the right to the funding to get here. When arguments over whether to allow Syrian refugees in our country, the debate should break down to the separations from the right.
Anyone of those refugees can come here and become a citizen under the proper protocol. That should not be the argument; they have the right to immigrate here. What may limit that right are issues of security and funding. If a specific refugee poses a threat, then his or her right to be in America should be limited. Most certainly, no person has a right to free funding from anyone else; thus, the debate might not be about the right to immigrate but rather whether the funding should be used in that way. Likewise, there is a difference between an outright ban of immigration for certain groups and pausing immigration of certain groups to improve the vetting process.
There are so many examples of this concept of separating behavior and extenuations from the right or law itself. Another simple one is driving a car -- not a right but a licensed privilege. When one driver speeds, we don't consider removing all cars. We punish that one driver. We might improve safety features on cars. But we don't consider not permitting driving anymore.
So in conclusion, thank you for taking the time to read my viewpoint. By the way, I recognize your right to disagree with it. However, if we do debate this or other points in the future, I hope that we (and all others who argue) can learn to find the common ground of what is entitled and what is separate from that entitlement. Arguing over where to draw the line of limitations is far more civil than claiming something "just ain't right."
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