Sunday, November 15, 2015

An objective framework to analyze conflicting personal rights and freedoms

Many, possibly most, liberal vs. conservative disagreements include differences of opinion about how a law, policy or Supreme Court decision affects personal freedoms. Press coverage of these subjective ideological disputes is poor or even detrimental to the public interest because it tends to simply mirror the unresolvable, one-sided partisan arguments and their biased basis in reality.

Although it may be entertaining, that kind of subjective press coverage sheds no light on the reality of how individual rights conflicts actually affect specific rights, e.g., freedom of speech vs. a right to equal protection of law. Mainstream and partisan press coverage never includes an objective analytic framework in which rights and freedoms conflict situations can be rationally explained and understood.

IVN has published two Dissident Politics articles that dealt with analyzing conflicting personal rights and freedoms after the Supreme Court's June 2015 Obergefell vs. Hodges decision extended the fundamental right to marriage to same-sex couples. The first article examined the impacts of the exercise of the right of same-sex couples to marry in the context of freedom of religion and the second analyzed rights conflicts in the context of commerce. The two analyses were different because the rights involved were different and because positive and negative impacts on rights differed in differing ways for different groups of affected Americans.

For both analyses, Dissident Politics relied on essentially the same analytic framework to assess personal rights and freedom impacts. The analysis is based on the following four-step protocol: 

(1) Considering whether each affected freedom or right is constitutionally fundamental; (2) determining whether (i) impacts are high, moderate, low or none-negligible, (ii) impacts are positive (freedom-expanding and/or easier or less costly to exercise) or negative, and (iii) the approximate number of people in major relevant groups; (3) considering current and projected public opinion; and (4) assessing whether an overall net freedom gain or loss best serves the public interest based on objectively balancing all significant competing considerations and interests.  

Following that protocol provides the information needed to reasonably assess (i) the reality of how such conflicts actually affect various groups of people, (ii) approximately how many people are included in relevant affected groups and (iii) impacts on the broader public interest.

Although this analytic framework is not perfectly objective, it is much more objective, complete, nuanced and balanced than the fragmented and usually one-sided content that the mainstream media, e.g., the New York Times or the Wall Street Journal, conveys to the American people. Relative to the generally harmful content that the partisan-biased media provides, e.g., the National Review or The Federalist, this framework constitutes a far better way to assess rights and freedoms conflicts.

The framework should be applicable to assessing conflicts in all rights and freedoms contexts, e.g., from gun control and abortion laws to equal protection of law rights in commerce. For example, it can be used to analyze damage to personal privacy rights in the context of government surveillance for national security. That issue is likely to become more urgent in the wake of the recent terrorist attacks on civilians in Paris. This protocol also works for analyzing conflicts between laws, freedom of speech and equal protection rights. Different conflicts and impacts exist in states that have laws banning discrimination in commerce on the basis of sexual orientation compared to states with no such anti-discrimination laws.

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