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,
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,
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.
be described as perfect or imperfect, according as their
action or scope is clear, settled, and determinate, or is vague and
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.
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).
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.
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.
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.
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.
also classified in constitutional law as natural, civil, and political,
to which there is sometimes added the class of "personal rights."
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.
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.
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.
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.
Dictionary, Sixth Edition, pp. 1323-1324]
"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."
v. Wells, 289 U.S. 670 (1933)]
"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."
C. Steward Machine Co. v. Davis, 301 U.S. 548, 580 (1937)]
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
"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."
Bank v. Billings, 29 U.S. 514, 563 (1830)]
"[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 ..."
v. Perkins, 163 U.S. 625, 627 (1896)]
"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)]
"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."
v. Covert, 354 U.S. 1 (1957)]