Rights Not To
I’m currently working on a paper that explores the possibility of a Second Amendment right not to keep or bear arms in self-defense. If such a right exists, it might call into question the constitutionality of various laws that make it difficult or impossible for people to keep guns out of their homes, off their property, or otherwise out of their constructive possession. But in writing the paper, I’ve been struggling with a broader question: When and why is a constitutional right to do something accompanied by a constitutional right not to do that thing?
Various parts of the Constitution protect a “freedom” or a “right to” engage in a particular activity — to speak, exercise religion, or keep and bear arms, for example. But if a person chooses not to engage in that activity, or to engage in some variant thereof, it is not always clear whether his decision is constitutionally protected. The Court has made it clear that “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Singer v. United States, 380 U.S. 24, 34-35 (1965). Thus the right to a speedy trial does not guarantee the right to a slow one — it is a take-it-or-leave-it style right. And yet sometimes one can insist on the “opposite of [a] right”: The First Amendment protects the right to speak and the right not to (see, e.g., Barnette and Wooley), the right to associate and the right not to (see, e.g., Dale), and so on.
Is there a good way to explain these “rights not to”? One answer might be that for some rights, the “opposite” of the protected activity is effectively the same as the “primary” activity itself. That is, speech and silence are both forms of communication, which is the real focus of the First Amendment’s protections. This answer strikes me as plausible, but maybe a bit too easy — it basically means playing around with definitions in order to avoid the question. A second possibility would be to focus on the text of the Constitution, and argue that “freedom of speech” encompasses both speech and silence, while a “right to” implies a take-it-or-leave-it approach. This also seems plausible, though its utility would be fairly limited. Yet another answer could be that in order to determine whether a right carries with it a right not to, one must first know something about the purpose of the right. If the right serves some “public” value, then perhaps one cannot insist on its opposite (the Thirteenth Amendment comes to mind), whereas rights that are designed to create some sphere of individual autonomy (the First Amendment, at least arguably) do extend constitutional protection to the decision not to engage in the enumerated activity — speech, the exercise of religion, or perhaps the keeping and bearing of arms.
Those are just a few possible approaches; I’m sure there are others, and I’d love to hear them.