CITES BY TOPIC:  right

Black's Law Dictionary, Sixth Edition, pp. 1323-1324

Right.  As a noun, and taken in an abstract sense, means justice, ethical correctness, or consonance with the rules of law or the principles of morals.  In this signification it answers to one meaning of the Latin "jus," and serves to indicate law in the abstract, considered as the foundation of all rights, or the complex of underlying moral principles which impart the character of justice to all positive law, or give it an ethical content.  As a noun, and taken in a concrete sense, a power, privilege, faculty, or demand, inherent in one person and incident upon another.  Rights are defined generally as "powers of free action."  And the primal rights pertaining to men are enjoyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law.  But leaving the abstract moral sphere, and giving to the term a juristic content, a "right" is well defined as "a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others."

As an adjective, the term "right" means just, morally correct, consonant with ethical principles or rules of positive law.  It is the opposite of wrong, unjust, illegal.

A power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage.  See Bill of rights; Civil liberties; Civil Rights Acts; Natural rights.

In a narrower signification, an interest or title in an object of property; a just and legal claim to hold, use, or enjoy it, or to convey or donate it, as he may please.

A legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act.  Restatement of the Law of Property, 1.

That which one person ought to have or receive from another, it being withheld from him, or not in his possession.  In this sense "right" has the force of possession.  In this sense "right" has the force of "claim," and is properly expressed by the Latin "jus."

See also Conditional right; Correlative rights; Droit; Jus; Justice; Natural rights; Power; Recht; Vested rights.

General Classification

Rights may be described as perfect or imperfect, according as their action or scope is clear, settled, and determinate, or is vague and unfixed.

Rights are also either in personam or in rem.  A right in personam is one which imposes an obligation on a definite person.  A right in rem  is one which imposes an obligation on persons generally; i.e.,  either on all the world or on all the world except certain determinate persons.  Thus, if I am entitled to exclude all persons from a given piece of land; and, if there are one or more persons, A., B., and C., whom I am not entitled to exclude from it, my right is still a right in rem.

Rights may also be described as either primary or secondary.  Primary rights are those which can be created without reference to rights already existing.  Secondary rights can only arise for the purpose of protecting or enforcing primary rights.  They are either preventive (protective) or remedial (reparative).

Preventive or protective secondary rights exist in order to prevent the infringement or loss of primary rights.  They are judicial when they require the assistance of a court of law for their enforcement, and extrajudicial when they are capable of being exercised by the party himself.  Remedial or reparative secondary rights are also either judicial or extrajudicial.  They may further be divided into (1) rights of restitution or restoration, which entitle the person injured to be replaced in his original position; (2) rights of enforcement, which entitle the person injured to the performance of an act by the person bound; and (3) rights of satisfaction or compensation.

With respect to the ownership of external objects of property, rights may be classed as absolute and qualified.  An absolute right gives to the person in whom it inheres the uncontrolled dominion over the object at all times and for all purposes.  A qualified right gives the possessor a right to the object for certain purposes or under certain circumstances only.  SUch is the right of a bailee to recover the article bailed when it has been unlawfully taken form him by a stranger.

Rights are also either legal or equitable.  The former is the case where the person seeking to enforce the right for his own benefit has the legal title and a remedy at law.  The latter are such as are enforceable only in equity; as, at the suit of cestui que trust.  Procedurally, under Rules of Civil Procedure, both legal and equitable rights are enforced in the same court under a single cause of action.

Constitutional Rights

There is also a classification of rights, with respect to the constitution of civil society.  Thus, according to Blackstone, "the rights of persons, considered in their natural capacities, are of two sorts, --absolute and relative;  absolute, which are such as appertain and belong to particular men, merely as individuals or single persons; relative, which are incident to them as members of society, and standing in various relations to each other."  1 Bl.Comm. 123.

Rights are also classified in constitutional law as natural, civil, and political, to which there is sometimes added the class of "personal rights."

Natural rights are those which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law and depend upon civilized society; or they are those which are plainly assured by natural law; or those which, by fair deduction from the present physical, moral, social, and religious characteristics of man, he must be invested with, and which he ought to have realized for him in a jural society, in order to fulfill the ends to which his nature calls him.  Such are the rights of life, liberty, privacy, and good reputation.

Civil rights are such as belong to every citizen of the state or country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government.  They include the rights of property, marriage, equal protection of the laws, freedom of contract, trial by jury, etc.  Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his citizenship in a state or community.  Such term may also refer, in its very general sense, to rights capable of being enforced or redressed in a civil action.  Also, a term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth amendments to the Constitution, and by various acts of Congress (e.g. Civil Rights Acts) made in pursuance thereof.  See Bill of Rights; Civil liberties; Civil Rights Acts.

Political rights consist in the power to participate directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, and the right of petition.

Personal rights is a term of rather vague import, but generally it may be said to mean the right of personal security, comprising those of life, limb, body, health, reputation, and the right of personal liberty.

[Black's Law Dictionary, Sixth Edition, pp. 1323-1324]


Burnett v. Wells, 289 U.S. 670 (1933):

"Government in casting about for proper subjects of taxation is not confined by the traditional classification of interests or estates. It may tax, not only ownership, but any right or privilege that is a constituent of ownership."

[Burnett v. Wells, 289 U.S. 670 (1933)]


Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 580 (1937):

"We learn that employment for lawful gain is a 'natural' or 'inherent' or 'inalienable' right, and not a 'privilege' at all. But natural rights, so called, are as much subject to taxation as rights of less importance. An excise is not limited to vocations or activities that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right."

[Charles C. Steward Machine Co. v. Davis, 301 U.S. 548, 580 (1937)]

[NOTE:  The only way that rights or natural rights can be the proper subject of government taxation is by voluntary consent.  If such taxes are instituted without consent of the person taxed, who ordinarily would be in receipt of some government privilege, then the taxation is unjust and unwarranted.  For instance, you can forefeit your right to earn a wages free of federal taxes by consenting or volunteering to participate in the Socialist Security Program.  HOWEVER, the absence of complaint when collecting a tax or the lack of a written, signed, informed contract explicitly giving up a right in order to procure a benefit DOES NOT constitute consent by any means.]


Providence Bank v. Billings, 29 U.S. 514, 563 (1830):

"However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burdens; and that portion must be determined by the legislature."

[Providence Bank v. Billings, 29 U.S. 514, 563 (1830)]


U.S. v. Perkins, 163 U.S. 625, 627 (1896):

"[T]he laws of all civilized states recognize in every citizen the absolute right to his own earnings, and to the enjoyment of his own property, and the increase thereof, during his life, except so far as the state may require him to contribute his share for public expenses ..."

[U.S. v. Perkins, 163 U.S. 625, 627 (1896)]


Brookhart v. Janis, 384 U.S. 1; 86 S.Ct. 1245; 16 L.Ed.2d 314 (1966):

"The question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.  There is a presumption against the waiver of constitutional rights, see, e.g. Glasser v. United States, 314 U.S. 60, 70-71, 86 L.Ed. 680, 699, 62 S.Ct. 457, and for a waiver to be effective it must be clearly established that there was an 'intentional relinquishment or abandonment of a known right or privilege.'  Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019, 146 A.L.R. 357."

[Brookhart v. Janis, 384 U.S. 1; 86 S.Ct. 1245; 16 L.Ed.2d 314 (1966)] 


Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir. 02/16/1984)

We also give considerable weight to the judgment of Congress that consent of the parties eliminates constitutional objections. The House Committee gave explicit consideration to the issue of constitutionality, and concluded that consent of the parties suffices to overcome objections based on constitutional grounds. Compare H.R. Rep. No. 287, 96th Cong., 1st Sess. 7-9 (1979) (House Committee confident that the Magistrate Act passes constitutional muster) with H.R. Rep. No. 595, 95th Cong. 1st Sess., 36-39 (1977), reprinted in 1978 U.S. Code Cong. & Ad. News, 5963, 5997-6000; and, Staff of House Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, 95th Cong., 1st Sess., Constitutional Bankruptcy Courts 33 (Committee Print 1977) (same Committee expressing substantial doubts about the constitutionality of the Bankruptcy Reform Act the Supreme Court subsequently struck down in Northern Pipeline).

The Supreme Court has allowed criminal defendants to waive even fundamental rights: the right to be free from self-incrimination, Garner v. United States, 424 U.S. 648, 47 L. Ed. 2d 370, 96 S. Ct. 1178 (1976), the right to counsel, Adams v. United States ex rel. McCann, 317 U.S. 269, 87 L. Ed. 268, 63 S. Ct. 236 (1942), the right to be free from unreasonable searches and seizures, Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), the right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the right to a jury trial, Duncan v. Louisiana, 391 U.S. 145, 158, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968), and even, by pleading guilty, the right to trial itself. See Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969). We refuse to reach the anomalous result of forbidding waiver in a civil case of the personal right to an Article III judge.

The waiver of personal rights must, of course, be freely and voluntarily undertaken. The present statute recognizes the importance of this requirement and provides that "rules of court for the reference of civil matters to magistrates shall include procedures to protect the voluntariness of the parties' consent." 28 U.S.C. 636(c)(2). The local rules of the District of Oregon pertaining to the assignment of civil cases to magistrates meet this requirement.

[Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir. 02/16/1984)]


Reid v. Covert, 354 U.S. 1 (1957):

"At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. 3 Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. 4 When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

* * *

"This Court and other federal courts have held or asserted that various constitutional limitations apply to the Government when it acts outside the continental United States. 10 While it has been suggested that only those constitutional rights which are "fundamental" protect Americans abroad, 11 we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of "Thou shalt nots" which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments."

[Reid v. Covert, 354 U.S. 1 (1957)]