New legal rights in the legal system of the United States of America

AutorRoberto Rosas; Bill Piatt
CargoInstructor of Law, St. Mary's University School of Law, San Antonio, Texas; Professor of Law, St. Mary's University School of Law, San Antonio, Texas
Páginas423-438

Instructor of Law, St. Mary's University School of Law, San Antonio, Texas since 2000 and Visiting Professor since 1994. Prof. Rosas received his law degree from the Universidad de Guadalajara in Mexico where he previously obtained the degree of Electrical Mechanic Engineer. Professor Rosas' postgraduate studies include Harvard Graduate School of Business, University of Massachusetts at Amherst, and Oxford Centre for Management Studies. He also studied graduate courses on comparative law of Mexico and the United States as well as canon law. He is a doctor of law at the Universidad Europea de Madrid. He has also been a professor of law at the Universidad de Guadalajara, from which he graduated at the top of his class. He worked at various law firms in Guadalajara and later established a solo practice. Professor Rosas has spoken at several conferences in Mexico, Spain, and the United States and is the author of numerous essays on the laws of those countries. He was recently elected director of the Commissión on Legal Affairs for the Advisory Council of the Institute of Mexicans Living Abroad where his main role is advising the President of Mexico in the design and formulation of policies concerning the Mexican communities in the United States.

Professor of Law, St. Mary's University School of Law, San Antonio, Texas, Dean of the law school from 1998-2007. Professor Piatt received his Juris Doctor degree from the University of New Mexico School of Law in 1975. He also taught at several law schools throughout the United States and has taught as well as lectured in Mexico and Spain. He is the author of numerous books, including books on immigration law, language rights and race relations.

The authors would like to thank research assistant, Roel Gutierrez, prospective JD from St. Mary's Law School, San Antonio, TX, USA, class of 2009, for his valuable research Summary of Constitutional Rights, Powers and Duties, (consulted June 10, 2008)

Page 423

1. Introduction

Currently, there exist an extensive variety of individual rights recognized not only nationally but internationally as well. Nevertheless, with the course of time and conforming to society's characteristics, they are changing; occasionally, governments Page 424 consider it necessary to create additional protections for their citizens. Generally, these propositions are made possible through the creation and approval of new rights. Even though these new rights are based on other previously established rights, they do offer society the opportunity to protect and defend itself as well as allowing it to continue making progress.

In the United States, two general categories of rights are recognized: natural rights and non-natural rights. Natural rights include the right to life, liberty and property. From these three natural rights are derived many others that are recognized virtually all around the world. For example, several rights are derived from the right to life, such as the right against deprivation of one's life and the right against suffering abuse and injury. From the right of liberty are derived rights such as the right to free expression, the right to move freely, the right of communication, the right to privacy and the right to bear arms for security and legitimate defense, among others. From the right to property are derived the rights to own personal property and to reside in a decent home.1

Non-natural rights are divided into two general categories: rights of the person and citizenship rights. Non-natural rights of the person include the right to contract and the right to due process of the laws for those individuals who are subjected to criminal prosecution. Non-natural citizenship rights include the right to vote and to be elected, the right to bear arms in defense of the nation, and the right to the enforcement of these rights, among others.2

Likewise, universal rights exist that are recognized internationally and have been adopted by the United Nations (UN) in several treaties, conventions and declarations. The United Nations was the first to recognize the necessity of establishing and protecting certain human rights at a global level. The Universal Declaration of Human Rights approved by the UN is based on the recognition of four principle rights. The first is the right to freedom of speech and expressión throughout the world. The second refers to religious freedom. The third is the right to obtain economic security for one's development and well-being. The fourth principal right is the right to be free from fear or apprehension. Partially based on this fourth principal is the UN's commitment to the worldwide reduction of weapons, thereby eliminating threats of future conflicts.3

In continuation, only a few of the new legal rights that have been recognized within the last few years will be addressed: specifically, the rights for the protection of the environment, the right of privacy in relation to unsolicited commercial telephone calls, the right to the residential information of sexual offenders, the protection of the victims of human trafficking, marriage and civil unions between same-sex couples, euthanasia or death with dignity, and the determination of medical treatment to be administered as well as the donation of human organs. Page 425

2. The Right Tü The Protection Of The Environment

On May 16, 1994, in Geneva, the United Nations' first Declaration of Principies on Human Rights and the Environment was written, establishing for the first time a direct relationship between human rights and the environment. The Declaration demonstrated that the already accepted human rights and rights for the protection of the environment include the right of all persons to have a secure, healthy, and ecologically acceptable environment.4

The first part of this declaration expressed that human rights, the right to an ecologically healthy environment and peace are interdependent and indivisible rights that all persons, present and future generations, should enjoy. The second part established that all persons have the right to live free from contamination, environmental degradations, as well as all activities that have a negative effect on the environment, threaten lives, health and the well being of individuals. At the same time, it recognizes the right to the protection and preservation of the air, land, flora, animal life and the natural processes and essential áreas necessary to maintain biological diversity and ecosystems.5

In the United States, the struggle between economic development and the protection of the environment continues. The Environmental Protection Agency (EPA) has drafted new rules that if approved, will permit mining companies to discard waste generated by their activities in high mountain áreas, including rocks and dirt, into rivers and other running waters. Traditionally, federal and state agencies and judicial orders have regulated coal mining in mountains to restrict the quantity of waste that can be discarded into bodies of water. Should these new rules be approved, it would give great support to mining operations, especially those in West Virginia and Kentucky as well as other mining states in the western part of the nation.6

At the same time, these same regulations are undermining the efforts of ecologists and community organizations that oppose such mining operations. According to these organizations, such operations cause unacceptable damage to rivers and other bodies of running water. EPA officials claim that the new regulations are only an effort to make the rules of the Corps of Engineers compatible with the Clean Water Act.7 They also argue that nothing in the Act prohibits the disposal of this type of waste into rivers and that the practice does not represent a threat to the environment.8

The Supreme Court of the United States has also had its say in the debate over environmental protection. On April 23, 2002, the Supreme Court of the United States in Tahoe-Sierra v. Tahoe Regional decided that the temporary ban Page 426 on the development of certain lands is not an unconditional "taking" of the property, relieving the government from compensating the landowner. The Supreme Court ruled in favor of a Nevada state agency that issued a moratorium for 32 months while it conducted a study on the impact of urbanization on Lake Tahoe and designated an effective strategy for the proper management of the environment in the area. The landowners wanted to develop their lakeside property; and when the ban prevented the development, they sued the government.9

The Supreme Court recognized that while the permanent deprivation of the use of the property is a complete "taking," a temporary restriction that simply decreases the value of the same property is not, because the property recuperates its value once the restrictions to its use are lifted. The Supreme Court also indicated that a more appropriate manner in treating temporary regulatory "takings" was by carefully examining each case and evaluating all the repercussions that the "taking" entails, one of which is the duration of such "taking." The moratoriums were recognized as essential tools for urban development now that the interest in being able to make intelligent decisions with respect to the development suggested that it was inappropriate to adopt a rule that would automatically consider whatever...

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