One of the best parts of my occupation is that I get many opportunities to engage in conversation with brilliant lawyers and other members of the workers compensation community. There musings and prognostications are frankly fascinating. I find myself sometimes agreeing with them, or asking questions, or both. It is great mental exercise.
I recently had such a conversation in which my views on fundamental rights were challenged. An individual explained to me, in much kinder words, that I would be lucky to effectively discern my head from a hole in the ground. The dismissive tone, combined with a look of sheer pity in the speakers eyes, combined for a persuasive affect.
This individual explained to me that there are rights which are both constitutionally protected and “absolute." For this premise, he relied in part upon the use of "unalienable" in the Declaration of Independence:
"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."
Unalienable (inalienable) means "not transferable to another or not capable of being taken away or denied." Government, the individual lecturing me explained, can never impair a fundamental right. Some might already see the potential for flaws in that absolute statement. If the lecturer is correct, then any legislation or regulation which in any way impairs a right is clearly and absolutely unconstitutional. The statement also perhaps ignores that the American government does not take away rights, we the people give away rights as we empower the government. In our society, the power rests with the people.
In fact, no right is absolute. No right is beyond the potential for encroachment by government, through some power which we have imparted. This is because any right possessed by an individual may in fact infringe upon the rights of some other individual. And when rights collide, the government is compelled to balance the equation. If the government did not, then those individuals would likely engage in untoward individual behavior to solve the conflict themselves, perhaps even through violence.
In lecturing on the Constitution, I have likened this rights conflict to a tug-of-war. For some, the simplicity of that illustration is comforting. That analogy allows us to picture two people struggling against each other in pursuit of their own preferred outcome.
For example, one person might assert a right to irrigate her/his land from a stream running through the property. But, every drop of water that a person uses is water that the landowners downstream cannot. Similarly, a person might feel that their property rights allow them to have a band perform in their backyard, while others in the neighborhood might find that objectionable (and the later in the evening it gets, the more the neighbors might object). One may have the right to speak their mind, but perhaps not in the place or at the time such speech would disturb or endanger them or someone else.
Certainly, property rights are protected by the U.S. Constitution. As certainly, those rights and a variety of others have been deemed by the courts to be "fundamental." However, there are conflicts that preclude each individual from having the full, unfettered, and complete measure of rights to which they may believe themselves entitled. The rights of one are diminished in similarly protecting the rights of others. In the end, there are no absolutes.
It is worth noting that conflict of rights is rarely between two individuals, competing across some perfectly linear conflict. I have therefore suggested that such conflict may perhaps be better visualized as a spider's web. Where each of the spokes of the web might essentially be viewed as a point upon which competing interests might pull. This analogy illustrates various interests pulling in various directions.
In this visualization, we might note that it is possible for a conflict participant to indirectly receive aid from some cohort that is not necessarily on their specific "side" of an argument, but whose interests somewhat parallel (the strand of the web they pull is more assistive than deleterious to the person's argument). This cohort may not stand for exactly the participant's argument, nor be willing to pull on that particular strand. However, in pulling on their own strand, they nonetheless provide that first participant aid. As important, the participants' opponent may likewise receive the aid of some similarly tangentially related cohort(s). And, there may be some whose efforts are instead closer to ninety degrees from the person's goals and whose efforts therefore skew the debate in a tangential direction.
As importantly, there are times when the rights of individuals conflict with the powers that we the people have given the government. That endowment is not the government taking our rights, but us voluntarily having yielded them by empowering the government. Perhaps a useful example of this with fundamental rights is the freedom of expression. There are those who believe that Americans have an absolute right to freedom of expression. However, the United States Supreme Court has repeatedly upheld limitations upon speech. Examples include hate speech, fighting words, certain advertisements, and words creating a clear and present danger.
And, in furtherance of government "police powers," the government is clearly empowered to regulate the time, place, and manner of speech. One might well stand on the courthouse steps and wax eloquently without interference, but get arrested for insisting on standing in the middle of Interstate 95 to do so. The government might well look out for someone's safety even when she/he seems uninterested in their own safety. The state, that is "government" has an interest in the protection of health, safety, and welfare.
In this context, just as in the competition of individual rights, we will see the tugging and nudging of various interests and perspectives. The state may see driving without a seat belt as too dangerous and forbid it, but nonetheless, allow someone to ride a motorcycle without a seat belt or even a helmet. The power of the state engages in the limitation of rights, or not. (Before you email me to tell me how you feel about motorcycles or seat belts, know this is merely for illustration).
Comedian Steve Martin had an interesting take on free speech in the 1970s. He queried audiences as to whether it was ethical to scream "movie" in a crowded firehouse. Of course, that is a ridiculous construct. The corollary has been historically used to illustrate limitations on speech: is it appropriate to scream "fire" in a crowded movie house? Even a casual observer would accept that screaming "fire" in such a location could result in panic, stampede, and injury. Thus, the right to free expression is not without appropriate limitations. While it is a fundamental right, it is neither absolute nor inviolable.
Thus, I maintain my original thought. Some rights are important, fundamental, and even unalienable. However, no right is absolute. By the same token, we might as validly conclude that state power in our Constitutional Republic is likewise not absolute. It is subject to the sometimes contradicting authority of the rights of the people. In a nutshell, the various rights and powers have to be balanced by the law.
The analysis of rights is more complex than perhaps some are willing to concede. When the government regulates, its actions are subject to review, That review is for the Court, which appropriated it in Marbury v. Madison many years ago (1803). When the rights of individuals conflict, the courts must determine how the laws affect the balance among those rights. There will be disagreement and perhaps even perceptions of inequity.
What does this all have to do with workers' compensation? Regardless of the state you are in, workers' compensation is a statutory construct. It was created by a legislative body elected by the people. It is a statutory change to what were existing rights to property and due process and more. It is a set of limitations and empowerment or entitlement. It is a compromise of various interests, the result of various perspectives pulling on their own respective strand of the web. And, the effect of the imposition of such legislative power is both imperfect and a compromise.
In workers' compensation, as in a vast array of other situations, there are no absolute and unalienable rights. There is compromise, effected through the representative democracy process of this republic. It is neither perfect nor even potentially so. The community charge is to find balance within it.
