University of Bristol, UK
In “Faisal Shazhad and The Right (not) to Have Rights” Sam Chambers has done an excellent job of deconstructing the current discourse about citizenship and rights, in particular so-called Miranda rights, and the outrageous proposals to revoke these in cases of suspected terrorism by revocation of US citizenship. His conclusion, that this presupposes a “right not to have rights” (an inversion of Hannah Arendt’s “right to have rights”), follows nicely from the presuppositions of the discourses involved. While it is politically important to speak to people in terms that are familiar, and ones that they (think they) understand, there is also room here – so I venture to say – for critique, looking back to first principles.
I am not at all sure that a “right to have rights” is a good place to start, or that anyone besides Arendt would really choose to start there, given that it is a bit of a riddle (doubtless she had her reasons). I would start – in the present context – with the American Declaration of Independence of July 4th, 1776:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...
The US Constitution, and its Bill of Rights, and subsequent relevant amendments, do not “grant” fundamental rights. That is why the rights are fundamental. As it says in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Bill of Rights thus recognizes and reiterates what is the case, namely that individuals already have rights – or rather it does so when it is not actively taking (presumed) rights away – from the government.
In contemporary terms I doubt that many people in the US seriously imagine that their “green card” nanny or illegal gardener have no rights to due process, fair trial, personal security, immunity from torture etc. etc., even if they have no right to vote, or could be deported (through one procedure or another). And indeed in practice, and in the history of American jurisprudence, this is exactly the case. Or at least it has been until recently.