What Is a ”Right”?

Episode Transcript

(00:00):
One of the things that is Ithink maybe more controversial than the average Joe
American would think or would understand,is the concept of rights. What is
a right now, in a certainsense, what a right is is a

(00:25):
legal guarantee to something, some kindof legal protection enacted in law guaranteeing something.
All right, I have a rightto freedom of speech. It's basically
a legal guarantee or a legal protectionthat the government cannot engage in adverse actions

(00:53):
against me based on the content ofstuff that I talk about within the sort
of historical parameters of the kinds ofthings the First Amendment and the term of
art freedom of speech is designed toprotect, which chiefly concerns questions of political
and social and cultural relevance. Alot of the stuff I talk about on

(01:15):
this show. Right, So ifnow, there's certain things that are within
that ambit, certain things that arenot me using potty language on the radio,
for example, is not within theambit of the First Amendment, And
I don't have the same protection forsaying it. If I come on here
and curse a bunch, the FCCwill find power talk. That's but that's

(01:42):
censorship, Yeah, well, it'scensorship around obscenity which is not necessarily protected
by the First Amendment. To thesame extent that you know, me giving
my opinion on Joe Biden's policies isright. But it's a legal guarantee.
It's a kind of legal guarantee thatI can't be prosecuted for the content of

(02:07):
what I'm trying to say about thesetopics. And if I am prosecuted or
subject to other kinds of government actionadverse action, I can vindicate my rights
in court. Okay, So it'sa kind of leg A right is a

(02:28):
kind of legal protection, a kindof legal guarantee that you can do certain
kinds of things without adverse consequences.It means I can own a gun without
the state confiscating it from me,or penalizing me, or taxing me,

(02:51):
or burdening me. Well a certainextent, maybe you can tax in certain
ways without taking too much adverse actionagainst me. You can't quarter a British
soldier in my house. The goodold Third Amendment. You can't unreasonably The
Fourth Amendment provides a right against unreasonablesearches and seizure. Police officers can't come
in my house without a warrant.And if they try to do that,

(03:14):
then I have legal protections I canpursue. So a right, in its
most basic sense, is something thatexists within the context of American law.
It's a guarantee within American law,and it's rooted either in the US Constitution
or the California Constitution, within federalstatutory law or California statutory law. It's

(03:42):
a kind of guarantee, a legalguarantee against adverse action by the government against
me for doing X, Y orZ conduct or adverse action by private individuals.
You have a sort of right toYou have a right to go to

(04:05):
businesses, to engage in businesses,engage with businesses as a customer. That
right cannot be fringed, infringed ratheron the basis of you being an African
American. Okay, this was thewhole revolution of the Civil Rights Acts that

(04:25):
basically you had private businesses shutting AfricanAmericans out of, you know, whole
sectors of cities and whole industries invarious ways, huge restrictions on basic living
on the part of African Americans.You can't go to all these different grocery
stores, you can't go to thesekinds of hotels. You can't go to

(04:46):
these kinds of restaurants. These arekind of basic essential services that allow people
to live and function and move aroundin society and Africa, Americans were sort
of shut out from a lot ofthem, a lot of these services and
a lot of parts of towns throughoutthe United States on the basis of nothing

(05:12):
else other than their skin color.And so the Civil Rights Acts forbade that.
So, no, you have aright to go to a you know,
to go to a grocery store andnot be shut out from that service
purely on the basis of your skincolor. Now you can be shut out

(05:32):
of a business on the basis ofother things. No shoes, no shirt,
no service is a perfectly legal formof discrimination. You don't have the
right to go to a business withno shoes and no shirt and just expect
service. So a right is againit's a kind of guarantee from the government

(05:57):
that you can do something. Butpeople use the word right to mean other
kinds of things that I think area little bit more loosey goosey. I
think we start to use and Ithink we get into problems when we sort
of mix these two uses of theseterms. Everyone has the right to an

(06:24):
education. Okay, well what doesthat mean? What exactly do you see
how it's kind of different there.I have a right against an unreasonable search.
That's a fairly concrete thing. Youneed a search warrant before you come
into my house. Okay, that'sa very concrete thing. It's something that's

(06:46):
within the legal process. It's withinthe realm of legal processes. I can
appeal if a cop comes into myhouse and searches for things. You know
that there are certain circumstances in whicha police officer, if he's got a
preponderance of the evidence indicating that someonewent into a house, you know,
they see someone stab a guy andthen run into a house, they don't

(07:10):
need a search warrant first before theygo into the house and catch the guy
who's got the bloody knife. Sothere's an appeal process for that. But
it's a fairly concrete thing. Ihave a right to an education. Well,
that's a much more nebulous thing,right, What does that mean?
I have a right to an educationif you purely just mean I can't be

(07:39):
hindered by the government from going toa school. Okay, But is when
you say people have a right toa good education. That's almost like a
positive You're guaranteeing some sort of positivething, Especially when you use this language
of rights, which we in Americabelieve to be like a very ironclad thing.

(08:05):
It's hard to say for a state, everyone has a right to a
good education. Okay, Well,if you go through Fresno Unified, for
example, my constant education punching bag, and you can't read or write by
the end of it, or youcan't read it right very well, were
your rights infringed? Well, doyou think you have the ability to sue

(08:26):
as a result? No, Sowhat does that even mean? I think
Americans love the language of rights,but use the term in all kinds of
ways that are sort of loosey goosey, And that seems specifically to be what's
happening with a proposed ballot initiative.That's going to sound really nice, but

(08:50):
the practical implications of what it's goingto mean, I think could be way
more far reaching. And it's thekind of thing that makes me hate California's
pure democracy systems, like the ballotinitiative process. Should from the Sacramento Bee,
Should clean air and water be afundamental human right California voters to decide.

(09:18):
In the Golden State, we prideore This is a piece, an
opinion piece in the Fresno in theSacramento be written by Terry Tamminin and James
Struck, who are former secretaries ofthe California Environmental Protection Agency. In the
Golden State, we pride ourselves onour future facing environmental values and our climate

(09:43):
leadership. We I mean you guys, the authors of this piece who ran
the California APA. Maybe, butI don't know that well. Most Californians
think that way anyway. At thesame time, nearly one million residents of
California, primarily in disadvantaged community,are without access to clean drinking water,
and California cities such as Los Angeles, Long Beach and Fresno are burdened year

(10:05):
after year by some of the dirtiest, most polluted air in the nation.
The glaring duality underscores the failure ofour current legal framework to ensure the fundamental
rights of all Californians to clean air, water, and a healthy environment.
It's time for a change. It'stime for California to enshrine this right into

(10:26):
our state constitution. So will.I mean, this is and this is
the thing where we're going to saythat anything we like that is good,
we're going to enshrine as a legalright within the state constitution. Does that

(10:50):
actually make sense? What does itmean to have a right to clean air?
I mean, yes, I thinkmaybe a healthier way of understanding this
is that as human persons, weare owed certain kinds of goods on account

(11:13):
of our basic human dignity, whichmeans that certain kinds of goods should be
respected in our regard. Every childconceived into the world should have a mom

(11:35):
and dad who loves them. Everychild should get an education of some sort.
I think thinking about it in termsof these are things that people are
owed on account of being members ofthe human family. I think that's a
more sensible way of talking about itthan a right. Well, we have

(11:56):
a constitutional right to you know,have two parents. Well okay, well
what if my mom's a druggie andmy dad's a druggy and they place me
for adoption, or my dad isa druggie and leaves or abandons the family
and I only have my mom.Has my fundamental right been violated in such

(12:20):
a way that I can sue somebodythat I can vindicate my rights in the
courts. Well, then we're talkingabout rights in two different senses. If
that's not the case. And Ifeel like what this is trying to do
is take something that, yes,it's a something that human beings are owed,

(12:41):
that human beings should have, whichis the ability to grow up in
a clean environment. Yes, peopleshould have that, but I think it's
a little bizarre to enshrine it withinthe state constitution. I think what this
is going to be. This isgoing to be framed as this is guaranteeing

(13:09):
a right to a clean environment forindividuals, and really what it's going to
be is some kind of carbon emissionsmandated limit on the state, on businesses,
on political on municipalities. Basically,this is going to become some kind

(13:31):
of carbon emissions tax or some kindof carbon emissions cap, or some kind
of environmental massive statewide environmental regulation.Because unless you're going to make it,
if it's not that, then itmakes no sense to put it in the
state constitution. Okay, we don'tvindicate like certain kinds of Again, children

(13:54):
have a right to to loving parentsin the sense that that is something that
every human being should have. Thatis something every being human being is owed,
But we don't have a process forlegally vindicating that right, that obligation
to people all the time. Again, if your dad walks out on you
and abandons his family, in manycases, you can't force that person to

(14:18):
come back into the home to takecare of you the way it should be
you. Certainly you can't necessarily usethe courts to accomplish that goal. People
are owed two parents, people shouldhave two parents, but you can't necessarily
use the courts to vindicate that.People are owed a clean environment. But
how do you bend the courts tomandate that? How do you put that

(14:39):
in the state constitution? And whatdoes that actually mean effectively once it's in
the state constitution. Well, Ithink what it's just going to mean is
a massive carbon limit, some kindof massive emissions limit on businesses. We're
going to dig into what this couldmean in the next segment. This is

(15:01):
the John Girardi Show here on PowerTalk. There's a proposed California state constitutional
amendment. It's working its way throughthe state legislature to guarantee for Californians,
quote, a right to a cleanenvironment, to a healthy environment, rather

(15:22):
to clean air and water and ahealthy environment. And you might think that
sounds really broad, that sounds reallygeneral, that sounds really vague. Yes,
it is broad, it is general, and it is vague. I've
got the actual text of this.So the way that constitutional amendments work in
California, there's a couple of differentways you can amend the California state Constitution.

(15:46):
And for those who need a refreshercourse, for our federal government,
the United States government, we havethe Constitution of the United States, and
this is our foundational law. Anysimple laws that are passed by Congress,

(16:06):
majority in the House, majority inthe Senate, and the President signs it,
those laws have to be consistent withthe US Constitution. So the US
Constitution is fundamental. It trumps anynormal laws passed by Congress. Okay,
when the thirteenth Amendment was ratified,which abolished slavery in the United States,

(16:33):
well, any prior American law,any prior American laws that operated on the
assumption that slavery was okay and regulatedslavery like this, and that all those
prior laws got wiped out. WhyWell, because the thirteenth Amendment came into
effect. If the Constitution says notX. Everything that's said X beforehand is

(17:00):
wiped out. The constitution takes precedenceover normal laws. The same is true
in California. We have the CaliforniaState Constitution. California has a constitution just
like the federal government does in California. Then on top of that has normal
laws passed by the state legislature ofCalifornia. A majority of the Assembly votes
for something, a majority of thestate Senate votes for something, and the

(17:22):
governor signs it into law. Soour normal laws passing California have to be
consistent with the California State Constitution.Now amending the California State Constitution, there
are a couple of different ways todo it, so adding new things into
the state Constitution. The method thatthis proposal is going through is it's getting

(17:44):
two thirds majority votes in the Assemblyin the state Senate before being put on
and that automatically would qualify it forthe ballot to be a ballot initiative voted
on by the voters of California.So this is an amendment to the California

(18:06):
Constitution, a proposed amendment to theCalifornia Constitution to say that the people should
This is the text that's going tobe at it. The people shall have
a right to clean air and waterand a healthy environment, considering the general
well being and other needs of thepeople. The principles inherent in the rights

(18:26):
recognized in this subdivision A shall serveas a guide to all branches of government
in the performance of their official duties. All branches of California government. The
rights recognized in some division A cleanair, water, and a healthy environment
shall inure to all people in equalmeasure, and shall not be construed or

(18:48):
applied in a manner that is inconsistentwith duly enacted laws of the State or
other rights set forth in this Constitution. Now, they Chamber of Commerce,
and I'm not like an unqualified fanboyfor the cal Chamber points out that this

(19:08):
is a hugely broadly vaguely worded thing, and god knows how it's going to
be interpreted. And this is theproblem with putting this, this American obsession
with calling everything a constitutional right,using the language of rights in all these
different ways. Yes, like peopleare owed, people should have clean air,

(19:33):
clean water, and good environment.But there's a difference between that and
something that's very concrete and actionable sortof negative protection like no unreasonable search and
seizure. You need a warrant beforeyou search my house. So the Colchamber

(19:56):
of Commerce wrote enshrining into the state'sconstitution a general right to clean air and
clean water is unnecessary, and thengo through all the different California environmental regulations
that are already on the books.It is therefore unclear what new substantive protections,
if any, this new constitutional rightprovides Californians that is not already being

(20:19):
afforded under existing local, state,and federal environmental laws and regulations. What
is clear, however, are unintendednegative consequences resulting from the placement of such
rights in the state's constitution. Morethan a mere redundancy, it lays the
legal foundation to challenge virtually any stateor local government infrastructure, energy procurement proposal,

(20:41):
or housing project on the basis thatany one of them threatens they're new
and as yet undefined general right.And that's true. I mean it talks
about all branches of California government.And guess what. Municipal governments, city
governments, county governments, those areall just extent school districts, those are
all just extensions of state government,right local governments, municipal governments, county

(21:07):
governments and all that. Those onlyexist as creations and extensions of California government.
They don't have the same kind ofindependence from California state government that say,
you know, a state government hasfrom the federal government. For example,
layering a constitutional amendment on top ofthe extensive matrix of existing laws undermines

(21:33):
their applicability and effectiveness in favor ofan unworkable framework in which no growth would
become the only option. And thatmight be right. I mean, what
are we defining as clean air,clean water, and a healthy environment.

(21:56):
It doesn't say do we just goby existing California statutes. I don't know.
Seems seems like a kakamimi idea tome. Now, when we return,
I want to talk about how thisis going to work and other problems

(22:19):
between the state constitution and statutes,how this actually relates to something we dealt
with and fighting against Proposition one,which is the big abortion amendment that's next
on the John Girardi Show. There'sthis proposed ballot initiative in California to guarantee
as a California state constitutional right,a constitutional right to clean air, clean

(22:45):
water, and a quote healthy environment. That's all it says. It doesn't
define anything any more precisely than that, and so people are asking, well,
well, this seems like a badidea to put this in the state
constitution when we have no actual definitionfor it. Now, the opinion piece

(23:10):
in the Sacramento be about this possibleballot initiative that we'll be facing. And
so just so you guys are awareof the process, the state legislature is
voting to have this be a proposedballot initiative that the voters of California would
vote for, I think this November, and if the voters approve it,

(23:33):
it would become enshrined in the CaliforniaState Constitution. Now, so that's the
process this would go under. Butagain, what does this bill, what
does this proposed amendment to the CaliforniaConstitution say? This is literally all it

(23:55):
says. The people shall have aright to clean air and water and a
healthy environment, considering the general wellbeing and other needs of the people.
These principles shall serve as a guideto all branches of government in the performance
of their official duties. That ismore or less all it says. Clean
air and water, healthy environment.Do we have a definition of that?

(24:22):
Do we have a definition based onemissions and particulate you know, counts or
whatever, what constitutes clean air orclean water? Do we have any definitions
about how this interfaces with existing Californiastate laws regulating emissions, cap and trade,

(24:42):
all you know, environmental impact reports, and any assessment of how that
relates to the existing layer upon layerupon layer of California law that already regulates
the environment. No, nothing,nothing, It's just there. Is it
guaranteed something more than existing California statutes? Doesn't? I don't know. Does

(25:04):
it? Does it mandate? Doesit mandate something equal to existing California statutes?
Do we do? We We're notchanging at all. So to try
to read these tea leaves, allI've got so far is this op ed
in the Sacramento Be in favor ofthis constitutional amendment which I've been talking about

(25:27):
throughout the show again, written byTerry Tammanan and James Strock, who are
former heads of the California Environmental ProtectionAgency, the California state version of the
EPA. Now they write that here'swhat they write, opposition to the proposed

(25:47):
amendment has begun to line up.This is the two former heads of the
California EPA writing this. The CaliforniaChamber of Commerce has placed it on its
job killer list, arguing that existingenvironmental regulations are efficient to protect California's kind
of misstates what the California and Chamberof Commerce was saying. What they were
saying is we already have a tonof environmental regulation and it's not clear what

(26:08):
this does on top of everything that'salready on the books. This is entirely
vague, and it just leaves everyany kind of development or growth subject to
questioning as to whether it infringes onthis right to clean air, clean water,
and healthy environment. That's actually whatthe California Chamber of Commerce said,

(26:32):
but let's gloss past that. Here'swhat these two former heads of the California
EPAS say. The reality is thatthese regulations California's existing exhaustive regime of environmental
law, all of California environmental law, the extensive ambitious programs of and eliminating

(26:56):
all non electric vehicles by twenty thirtyfive, Cap and Trade sequa, which
allows random yahoos to sue for anybuilding development for almost any building development.
All these layer upon layer upon layerof California environmental law, these regulations,

(27:19):
right, these two former heads ofthe California EPA are often inadequate, under
enforced, and subject to political maneuvering. By enshrining environmental rights in our state
constitution, we create a firm foundationupon which future environmental policies and regulations can

(27:42):
be built. So what does thatmean? Again? This question is if
we're going to put a right toclean air, clean water, and how
health the environment, put that inour state constitution, what does that do

(28:03):
to the law on the ground dayin and day out in California. Does
that mean that existing California laws areactually not enough that we have a new
standard we have to live up to. Well, they're sort of talking out
of both sides of their mouth,these former heads of the California EPA.

(28:26):
On the one hand, they're saying, our California existing environmental laws are often
inadequate, often under enforced, oftensubject to political maneuvering. So by putting

(28:47):
environmental rights in our state constitution,we create a firm found day So let
me pause before I get to thenext point. If our existing California law
is inadequate. You're proposing this assomething to enhance it. Right, If

(29:08):
you're arguing we need to do thisbecause existing California environmental law is inadequate,
then you're saying this very generally wordedthing that we're going to put in the
California State Constitution is enforcing some newand higher standards. But they then say,
by enshrining environmental rights in our stateconstitution, we create a firm foundation

(29:30):
upon which future environmental policies and regulationscan be built. So what's going to
guide us is future environmental policies andregulations. That's the more specific thing.
And how does it give us amore firm foundation? All right? The
state of California can regulate the environmentas it pleases. It can already do

(29:56):
that. There's nothing about putting thisin the state constitution that strengthens or weakens
the ability of the State of Californiato pass environmental laws and relevantly empowered executive
agencies to issue environmental regulations. Theycan still do that, Okay. State

(30:17):
governments have the ability to regulate theenvironment. That's not in question. Passing
this constitutional amendment doesn't change that.So it's like they're kind of talking out
of both but they're sort of talkingout of both sides of their mouth.
It creates a firm foundation upon whichfuture environmental policies and regulations can be built.

(30:41):
So proponents of this are going tohave to try to get around the
obvious question of you're putting this reallybroadly worded thing into the state constitution and
it's going to cause massive uncertainty everytime a municipality wants to approve of a
big building project. Is the stategoing to be able to swoop in and

(31:06):
stop it on the grounds that itviolates people's rights to a clean environment,
to a healthy environment. And probably, I would imagine proponents of this will
say no, no, no,no, no, no, no no
no, it's not changing anything onthe ground level. It's just providing principles
for future future action. Now thatdoesn't make sense, and frankly, it

(31:27):
reminds me of some of the debateswe had over Proposition one, which was
passed in twenty twenty two. Thiswas the big abortion amendment, which said
that abortion is now the right toan abortion is a fundamental right in California
law. And so here's the problem. I'll connect this, I promise I
won't just make this an abortion segment. Proposition one put a very broadly worded

(31:52):
right to abortion into the California stateConstitution. It just says the state cannot
interfere with a woman's right to anabortion. No qualification, no qualification about
the kind of abortion, the natureof abortion. Nothing. State cannot interfere
with a women's right to an abortion. To sorry a person's right, because
California thinks that women are not theonly people who can have abortions, all

(32:15):
right, But the problem is,existing California statutory law governing abortion says that
abortions after viability are only legal ifthe doctor deems them to be a threat
to the mother's health. So that'sin the California statute that was passed by

(32:40):
a majority of the Assembly, majorityof the state Senate, signed by a
governor. That's on the books asa normal California law. So people then
ask, well, if you're puttinga broader right to abortion into the state
constitution, does that mean that wenow have legal abortion completely free and clear

(33:00):
in the third trimester? That thatold restriction on post viability abortions and viability
is around twenty two, twenty three, twenty four weeks. It's the point
in pregnancy where a child can survivedelivery kind of varies kid to kid.
If you're putting into the state constitution, which is supreme, which is our

(33:20):
foundational law in the state of California, which which trumps any prior existing normal
laws passed as a statute by theAssembly, the Senate, and the governor.
If you're putting into the California StateConstitution a broader protection, then are
you legalizing third trimester abortion? Now, the politicians who pushed that know that
third trimester abortion is not popular evenin California, and so they say no,

(33:44):
no, no, no, nono, no existing law holds.
Well, that makes no sense.If your statutory right is narrower, but
your constitutional guarantee is broader, thenthe constitutional guarante Trump's So, I think,
what with this environmental constitutional amendment,this proposed constitutional amendment for our California

(34:12):
State Constitution to guarantee in very broadterms that everyone has a right to clean
air, clean up water, anda healthy environment end quote. That's an
enormously broad right. It's much broaderthan any of the specific environmental laws and
regulations that are on the books thatwere passed by the state legislature or authorized

(34:37):
by state regulators. So what's goingto control. The constitutional amendment controls the
California state constitution. If it's guaranteeingsomething bigger then the specific guarantees of California
statutes, then that's going to control. And I agree with the California Chamber

(34:59):
of Commerce on this. If wepass this some big, huge broad right
to clean air, clean water,and a healthy environment. I want people
to have clean air. I wantpeople to have clean water. I want
people to have a healthy environment.But guess what, those terms are subject
to very different interpretations by different people. And I think it's going to lead

(35:23):
to any development in this state,which, by the way, we desperately
need. We desperately need more housing. I don't know how we can talk
out of one side of our mouthabout the desperate need for more housing.
But at the same time past thiswildly over broad measure guaranteeing clean air,
clean water, healthy environment, wherenow any proposed housing could be subject to

(35:46):
Oh what it threatens my right tothe construction and emissions that it's going to
cause. It's going to threaten theright of people in this community to a
quote healthy environment under some vaguely,broadly determined criteria that as yet we don't
have. Don't vote for broad vaguegeneral constitutional amendments. It's a bad idea,

(36:13):
and I almost guarantee this stupid thing'sgoing to pass, because who wants
to vote against clean air, cleanwater, and a healthy environment. When
we return the Hunter Biden conviction andjust the general thought about whether justice is
really served here next on the JohnGirardi Show, Hunter Biden got convicted of

(36:36):
his gun crimes, and there's thisattitude among Democrats of like, see how
much better Joe Biden is than DonaldTrump. Here? Donald Trump is calling
the judicial process rigged, and JoeBiden did nothing to interfere with it.
Joe Biden was clean and pure asa wind driven Snow's see, there's no

(36:57):
special treatment for the Biden's. He'snot pardoning his son, all right.
And there's sort of this attitude thatHunter Biden received fair justice, or even
unfairly over zealous justice against himself.Let's be real here, that is not
true. The federal prosecutor in thiscase tried with might and main to wipe

(37:23):
all of Hunter Biden's crimes away.They were pursuing a plea deal to the
bitter end that would have reduced allof Hunter's millions and millions and millions and
millions of dollars of unpaid taxes,his gun crimes, everything down to a
couple of misdemeanors for which he wouldn'tdo any jail time. And it was
such a ridiculous deal that the judge, the federal judge in this case,

(37:45):
shut it down. When that collapsedand the prosecutor was revealed for being as
wildly duplicitous as he was, hewas sort of forced then to file these
gun charges against Hunter Biden, buthad the statute of limitations pass on some
of his far more serious tax crimes. No, Hunter Biden did not really

(38:07):
get totally fair justice here. Hedeserved worse. That'll do it for John
Girardi Show, See you next timeon Power Talk