It is a normal part of political discourse
to speak of rights to this or that, or that some act is a violation of one’s
rights. Like most terms used in normal
discount, however, this is one of those words that can mean something different
to each speaker. There are several
questions that deserve to be clarified: what are rights, what is their source,
and what is the proper role of government vis-à-vis what we call rights?
In the United
States we often begin such discussions with
reference to the first ten amendments to our Constitution, known as the Bill of
Rights. Of course others have been
added, but these are the best known.
They are “known,” I suppose, but extremely misunderstood at the same
time. For example, the First Amendment
reads as follows: “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech or of the press; or the
right of the people to peaceably assemble, and to petition the government for a
redress of grievances.” The government
cannot create an official religion nor restrict its free practice. What is often overlooked is the nature of the
language used in writing the amendment.
To see that more
clearly, look at the language involving the freedom of the press. The Constitution says that Congress, and by
extension any other branch of government, may not abridge its freedom. One is free to write what one chooses, but
what is lacking? It is that the
government, while not having to power to censor what is written, has no
affirmative obligation to provide any outlet for opinions or news. It has been said, quite appropriately, that
the Constitution requires freedom of the press if you happen to own a press. No one, either public or private, has even
the slightest obligation under the Constitution to provide any citizen with an
outlet to express his opinion. If I
disagree with an editorial opinion in my local paper, I am perfectly free to
write a letter expressing my disagreement.
No official at any level may censor my letter or prevent me from mailing
it. The state may take no action of any
kind.
On the other hand,
the newspaper publisher has no legal obligation to publish my letter in any
form. The government cannot compel him
to publish it in the name of fairness or diversity; he may reject the letter on
whatever arbitrary grounds he may choose.
True, it may not be good business sense for a publisher to refuse to
print letters with which he disagrees; it might really hurt his paper’s
circulation. That is, however, his
decision, not mine, and not the government’s.
It is the same with freedom of religion.
I am free to worship whatever god or gods I may choose, or not to
worship any deity at all. The government
simply has no role to play whatsoever.
There is one
possible exception to this rule in the Bill of Rights, and that concerns to
right to counsel in any trial in which I am a defendant. It is not clear that the original intent was
that the state could be compelled to provide counsel, merely that the state
could not prevent one from obtaining counsel if one wished. The Supreme Court has held otherwise, and for
good reason. I can only be a defendant
in a criminal trial because the government has decided to charge me with a
crime. Since the government has put me
in this jeopardy, it must be willing to provide counsel if I cannot afford
one. However, I have no right to
publicly paid counsel if I am the either the respondent or the plaintiff in a civil case, or
if I wish legal advice on personal or business matters. I am only entitled if I am the subject of
government action.
Rights that are a
result of Court decisions take a similarly negative tone. Many people erroneously think that, as a
result of the decision Roe v. Wade, the Supreme Court established a right to an
abortion. It did nothing of the sort.
What it said is that the Texas
law improperly restricted the plaintiff’s right of privacy, in that the matter
of terminating the pregnancy was, in this case, purely between her and her
doctor.[1] If she wished, she was free to terminate the
pregnancy by procuring an abortion. The
state was not permitted to interfere in any way. Note, however, that the Court did not
establish the right to an abortion, in that it did not state that the Federal
Government, the State of Texas,
or any local authority had any obligation to facilitate the action in any
manner, other than to step out of the way.
No agency had a Constitutionalobligation to provide an abortion, or
provide funding for a private one. Just
like the aphorism about the freedom of the press only applying to those who own
one, the only right affirmed is the right to procure one, and nothing
else. Even if a legislature makes a
decision to fund abortions for those who cannot afford them, that is a
legislative, not a Constitutional, decision.
If at a later date the legislature decides to end such funding, no
constitutional rights have been violated in the process. In short, rights are not what the government
is obliged to do for the citizen; they are what the government is forbidden to
do to him.
We do hear a lot of
discussion about things like a “right to health care” or a “right to
housing.” Such talk is different from
traditional statements about rights because they assert affirmative obligations
on the part of the government. In the
face of such claims, we must ask two questions.
Who is obligated to act by such a right, and what is the source of that
right? To begin with the first question,
we must remember that collective entities are really no more than descriptions
or categories of totally discrete individuals; they do not exist. How can something that does not really exist,
outside of rhetoric, possess responsibilities?
If we have an affirmative right to X, then someone is responsible for
providing X, and something that does not exist cannot do so.
If “X” in this case
is health care, then if I assert that I have a right to health care, then I am
asserting that the individuals described in that category have the obligation
to provide it, or provide the funds to pay for it. The government has no money except what it
takes from the citizens in taxes, so if “it” is going to pay for health care,
it has only three ways in which to do so.
The first would be to confiscate the necessary equipment, supplies and
labor from those who provide them, but this would be a violation of the Fifth
Amendment, which states “nor shall private property be taken for public use,
without just compensation.” It could
raise taxes to pay for it, but that would be no more than demanding that the
taxpayers pay for it, which is precisely what they would be doing, each individual
one of them. Lastly, it could stop
funding some existing program in order to pay for the new one, but that only
postpones the issue of whether or not one taxpayer has an obligation to pay for
a service for a second taxpayer.
Before returning to
this point, we need to inquire a little further into the source of such rights,
those that are not found in the Constitution, if they exist. First, if the people are the source of law,
they are the source of rights. This will
not be a popular position to take once the consequences are admitted, however,
either for those on the left or on the right.
Those on the right often point to the words of the Declaration of
Independence, that our rights are “endowed by our Creator.” Politicians on the left have spoken of
natural law as the source of our rights, or of the march of history. In either case government is only
recognizing, or should recognize, rights that properly belong to man as man. They transcend government. Admittedly, it is likely that the founders
thought along the former lines; the language of the Bill of Rights certainly
seems to treat rights as if they transcend whatever government is in
power. Either way, to the true believers
of either camp, the idea that rights and law come solely from the people leads
to the suspicion that it would be all to easy to abolish our rights if they
were no more transcendent that laws governing speed limits on interstate
highways.
In reality,
however, what assurance do we ever have that a society will remain free, not
lapse into some form of oppression? We
have certainly seen religious states that are free, and religious states that
are oppressive. There are free secular
states, and oppressive ones. Did the
belief that our creator endowed us with these rights prevent the passage of Jim
Crow laws? Did the belief in the natural
rights of man prevent freedom from degenerating into the Reign of Terror? Did the belief in the rights of working men
and women prevent the establishment of the Gulag and Stalin’s NKVD? These
arguments seem to have had no impact upon our ability or willingness to step on
our fellow man.
No, they have not,
and they can lead to even worse. There
are two types of oppressive societies.
The first is the expression of pure, simple greed for power or
money. Being the top dog in an
autocratic society simply makes it easier to get the power or money you
want. Religious moral beliefs may seem
to be elevating, but they have never seemed to prevent this type of
oppression. The second type is far more
pernicious, because it actually comes about as a result of moral
principles. It arises when we see those
who oppose us, not as being fellow citizens with different goals, but as our
enemies who are on the wrong side of history.[2] The worst oppression always arises when those
in power see themselves as fighting on the side of the angels, and those who
oppose them as agents of evil. One can
endeavor to convince an opponent, but enemies are to be crushed.
Can “international
law” serve as a source for or foundation of human or civil rights? Before we can answer that we have to ask,
“what is international law?’
Rhetorically the phrase sounds inspiring enough, but perhaps that is
precisely the problem. It is inspiring,
but it is also empty. International law
is, in one sense, no more than a euphemism for the way nations have become
accustomed to conduct their international business. The term is descriptive, not
prescriptive. There is no international
body that has the authority to legislate.
By its own charter, the United Nations can issue only resolutions, and
only those of the Security Council are considered “binding.” The Security Council is still not sovereign,
because any one of the Five Permanent members has the right to veto an action
of the Council, and there are no enforcement provisions. Resolutions from the General Assembly are
really no more than opinions, since they are not binding even in theory.
Treaties are
supposed to be “binding” on their signatories, and our Constitution states that
a properly ratified treaty is, along with the Constitution and enacted
legislation, the “law of the land.”
That, however, is the point; they are only binding if they are ratified,
which in our case must be by the Senate.
If not, they are no more than sheets of paper. A proposed treaty may have the enthusiastic
and popular backing of every other nation in the world, but it is not ratified
by our Senate, it is no more than an expression of popular opinion. The people, through the organs of government,
remain sovereign. Like any other law, a
treaty is only a law if the people of the United
States say that it is.
Even if we grant
that there are no sources of law of rights other than the citizens themselves,
suppose that the people becomes seduced by the promises of “panem et circum,”
and demand that the government provide a cradle to grave welfare state. If they are the source of the law, wouldn’t
that then, in fact, be a right? I
concede that point; from a legal point of view it certainly would.[3] This is why men like Madison
labored so diligently to produce a government that would prevent one group of
citizens from plundering another simply for their own enrichment. America
might be fortunate in that we could well have the opportunity to witness the economic
collapse of the European social welfare experiment. It is becoming clear how untenable this
attempt at statism has become. If we can
delay adopting such policies ourselves until the European collapse is complete,
then the voters themselves, who are generally middle of the road and tend to
reject extremes of either the right or the left, might refuse to countenance
such a system. They key to this success
will be to refuse to compromise on issues that would weaken our system of
checks and balances in the name of “democracy.”
If we fail, then the alternative is to learn from our own economic
collapse, our own misery.
