American constitutional law is caught in a bind between those who believe that individuals derive their significance and their rights from the permissions of the majority, and those who believe that people have certain inalienable rights which government exists to respect.Sandefur and I once clashed over the origin and essence of rights. I later published (here) my case for a consequentialist view of rights. In brief, Sandefur's dichotomy is false because he resorts to the concept of inalienable rights.
The rights that we actually enjoy do derive from "the permissions of the majority" or, more accurately, from the permissions of the state, which may or not reflect the views of the majority. The rights that we should enjoy are not inalienable; that is, they are not in our genes, in our character, or gifts from heaven. The rights that we should enjoy are the rights that would make everyone better off if they were honored -- everyone but predators and parasites, that is. It is that latter set of rights which the Founders and Framers sought, through war and politics, to deliver via the American state. The rights that we actually enjoy, however, are not the rights envisioned by the Founders and Framers because most Americans -- not understanding the consequences of their actions -- have sold those rights to the state in return for a false sense of security.
