Professor Irving seems to me to be on strong ground when she argues that many new rights are not apt for constitutionalisation.
While I am actually strong on such matters as "sexuality rights", "reproductive rights", "the right to die with dignity", and "environmental rights", I agree to some extent with Irving that that they "rest upon values or claims that are still controversial, and still open to reasonable disagreement."
She says, I think correctly:
They are current topics of public debate. In casting these values as "rights," their supporters seek to make them unassailable and foreclose debate. This is not merely inconsiderate towards those with different perspectives, it is also detrimental to the democratic process which requires open and robust debate about competing values.
Even where it is clear that a matter is a "right" rather than value claim, it needs to be recognized that different rights derive from, and belong to, different fields. Some arise from the natural law tradition. Others are creatures purely of legislation. Some rights are available to the individual alone, others to groups or classes of person; some rest on a distinction between citizens and non-citizens; others are enjoyed by natural persons only, and still others extend also to corporate persons; some are enforceable only against governments, others against private actors as well. Some rights are "negative," taking the form of prohibitions on legislation. Others are "positive," expressed as guarantees that can be asserted against governments.
I agree with this as far as it goes. Indeed, I've always argued that we need to be careful not to confuse fundamental political rights, such as freedom from the state compelling what religion we adopt, with the messy political business of working out the scope of, and exceptions to, anti-discrimination laws giving legal entitlements against private parties.
In my submission to the Human Rights Consultation, I argue as follows in respect of anti-discrimination law:
In some cases, e.g. where there is widespread prejudice, some individuals could suffer from the cumulative decisions even of individuals who do not, taken one by one, possess much power. For example, people from a certain racial background might suffer discrimination at the hands of shop owners and proprietors of similar businesses that supply goods and services to the public. The cumulative effect of many discriminatory acts could have drastic impacts on the welfare of somebody from a widely-despised or disliked background. For this reason, there is merit in enacting legislation that forbids racial discrimination in supplying goods and services to the public. Similarly, there is merit in enacting legislation that forbids racial discrimination in employment. Indeed, there is merit in creating a strong framework of equal opportunity and anti-discrimination law; this has become an accepted function of the state in modern society.
But the details of anti-discrimination law — particularly the issue of where tolerable kinds of discrimination by people in their private lives end, and the need for regulation of various kinds of private power begins — are for the day-to-day political process. Reasonable people and reasonable political parties can disagree about just which transactions should be regulated and how, what grounds of discrimination are important problems within a jurisdiction, what exceptions should be made to anti-discrimination law, and so on. Unlike the exercise of power by the state itself, these are not matters that are apt for constitutionalisation.
Thus, there is legitimate scope in some circumstances for the state to require those who wield intermediate power in society to do so subject to legal rights that are assigned to individual citizens who stand at the weaker ends of power relationships. However, there is no general rule that constitutional limitations on the power of the state should have equivalents whenever individual citizens deal with each other. To imagine otherwise would be to neglect the important difference between the vertical relationship of citizen and state and the horizontal relationships among citizens. It would also show a poor understanding of the sheer complexity of the various power relationships among citizens and other parties that interact beneath the overarching protection of state power. In many cases, there are good reasons to use law to regulate these other power relationships, but reasonable minds will differ on the manner and extent, and the law must be open to detailed amendment from time to time.
However, none of this entails that legislatures should have unlimited power to encroach on our private decision-making in areas such as sexuality and expression. If we are not talking about some kind of controversial right to resources, or against private parties, I see nothing wrong in principle with developing constitutional arrangements that will keep the government from muzzling us or prying into our bedrooms.