The Wrongs of Rights 1: Human Rights

Not all rights are created equal.

"I demand my rights!"

If there's one sentence that encapsulates modern American society, that's it.  The most sordid, drug-addled bum knows that he has the right to a lawyer if he's arrested and the right to sue if his "property" or person are molested in any way.

We are presented nightly with the bizarre spectacle of illegal aliens and terrorists demanding and receiving their rights as American citizens, despite not being citizens at all.  Somehow, giving non-citizens the same rights as citizens seems to make sense to the majority of Americans who vote for such nonsense - and that's not even mentioning such contradictions as a "right" to marry, a "right" to health care, and a "right" to murder the unborn.

This situation is possible only because of a fundamental misunderstanding of what rights actually are.

Conservatives often complain about the mis-education of American children by liberal-monopolized schools and of adults by the liberal-monopolized media.  There's a great deal of accuracy in this charge, but the only way to push back against mis-education is by offering the truth.  How can you argue with someone as to why their opinions are wrong and yours right if you don't actually know why?

Many conservatives know more or less what they believe, but have no idea why.

It's important when we discuss the issue of rights, particularly the basic human rights enshrined in the Constitution, that we don't accept a false premise before we even start the debate.  Hate crimes are based on the false premise that the government can justly regulate thought.  Censorship is based on the false premise that governments can justly establish rules about what may be expressed.  Terrorists receive the rights of citizenship based on the false premise that the rights of citizenship apply to non-citizens.

If we argue based on false premises, we've already lost the argument.  We must argue from first principles, explicitly rejecting false premises to get at the truth.

So let's talk about first principles: what rights exist, and why.

The Rights of Man

In every core document they wrote, our Founders made crystal clear their belief in what we would today call fundamental human rights.  The Declaration of Independence sums up this view:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

There is enough profundity and wisdom contained in these few lines to fill many books, but what stands out most is that the Founders considered what they were saying to be "self-evident."  In other words, the existence of natural human rights was, to them, so obvious that it needed no argument.

Do we have to argue that the sky is blue, that the grass is green, or that water is wet?  Similarly, the Founders believed that of course every person has a handful of inherent basic rights granted to each one individually by God Almighty.

Contrary to the belief of many European or Asian governments of the day, these rights were not granted by any governmental authority.  Quite the opposite: the Founders believes that the purpose of government was to protect the rights that the people already naturally had.

One way to think about the rights that the Founders viewed as fundamental is to consider the contemporary concept of the Noble Savage - basically, a caveman or pre-Columbian Indian living on his own without any government at all.  What are his rights?

He has the right to life - obviously, he is living, and will continue to do so as long as he can defend and provide for himself.  He has the right to free speech - again, there is no one to take it away.  He has the right to liberty, in that he can go where he pleases, and he can pursue happiness as he sees fit to do.

In the "natural" state of un-civilization, everyone has these rights.  Of course, that doesn't last long in the real world; instead, you wind up with Hobbes' "war of all against all," in which life tends to be "nasty, brutish, and short" for everyone except the Conan-the-Barbarian types who end up running things.  That's why the Founders didn't try to establish noble savagery; they understood that a government was required in order to effectively preserve humanity's natural rights for everyone not built like Mr. Universe or the Governor of California, and even he has bodyguards.

Freedom Without Price, but Which Can Be Lost

These core, natural, human rights cost nothing in and of themselves.  They cost something to defend - as the saying goes, "freedom is not free" - but the rights themselves don't require any sort of payment from anyone else.

Your right to free speech neither costs nor harms me; I can walk away, cover my ears, or speak myself if I don't like what you are saying, but if everyone or no-one chooses to talk, it makes no direct difference to anyone else.  Again, it doesn't cost me anything if you choose to travel widely and it doesn't affect you if I prefer to be a homebody; we can all have liberty without getting in each others' way.

The founders didn't believe that even core human rights were totally  irrevocable.  They understood that people could take actions which voided their own rights or some portion of them.  A criminal might, by his crimes, void his right to liberty; a murderer might likewise void his own right to life by robbing his victims of their lives.

To deal with such cases, the Fifth Amendment to the Constitution states (among other things) that

No person shall ... be deprived of life, liberty, or property, without due process of law.

Your natural human rights can be stripped from you, but only through a formal proceeding - involving criminal indictment, trial before an impartial judge and jury, and conviction of the crime.  At every step of the way, the accused has the opportunity to defend himself.  The Constitution was written to prevent innocent Americans from being "disappeared" into the Chateau d'If on the whim of a corrupt official, as with Edmond Dantes in The Count of Monte Cristo or Aleksandr Solzhenitsyn being hauled off to the Gulag.

There are very few of these core human rights and they are strictly limited in scope.  Really, they add up to the right to be left alone - the rights to make your own choices, say and believe what you like, and find your own way without having to do as you're told by somebody else.

Inherent to those rights, which we all have equally, is that just as others can't restrict you in asserting your rights, you can't restrict them in theirs.  They are negative rights: rights not to have to put up with someone else stopping you enjoying them.

Conflict of Rights

With the recognition that each individual possesses the same fundamental rights, we see the first collision.  If people have freedom of speech, that means that many of us are going to hear things we don't like.  Modern commentators use the term "hate speech" about opinions that, in their opinion, are beyond the pale.

Does the Constitution allow such restrictions on the right to speak?  No.  If you don't like what someone says, you don't have to listen, but you have no authority to shut them up.

The power to shut up the opposition has been sought by all governments since the beginning of time.  The king doesn't want to hear people saying he's a fool; the governor doesn't want to read newspapers complaining of his corruption.  The obvious reaction is to imprison or kill people that say things the powerful don't like.

The Founders considered this to be wrong, so they wrote freedom of speech and of the press into the First Amendment; only under the authority of the Constitution can there be such a concept as "speaking truth to power."  Try that in almost any other country at the time the Constitution was written or in most countries even today, and it would probably be the last thing you ever said.

From time to time, we hear complaints of "censorship" against unpleasant opinions or works of art.  There is true censorship in the world today, and in the United States even, but we need to understand where the term properly applies.

If you choose not to listen to something you don't want to hear, you are not performing censorship.  If you don't want to pay for something you don't like, again, you are not censoring.  If the government chooses not to pay for art that offends the taxpayers who are footing the bill, then contrary to the bleating of the extreme left, that is still not censorship.

By not paying for it, nobody is preventing the "artist" from making whatever works she pleases; the issue is simply that the taxpayer shouldn't be required to pay for "art" most taxpayers don't like.  (It's a legitimate question whether the taxpayer should be funding art of any kind, of course.)

Refusal to pay or to pay attention, whether as an individual, corporation, or government, is not censorship, and in no way a violation of anyone's fundamental right to free speech.  The right to speak does not include the right to force anyone to pay attention nor the right to make someone else pay you to speak.

Censorship and rights violations appear wherever the government or government agencies attempt to prohibit citizens from exercising their rights.  For example, public colleges routinely try to prevent Christian groups from meeting on campus or from publicly proselytizing.  If a private college restricted these actions, there'd be no Constitutional issues - the administrators of the private college can make whatever rules they wish on their own private property.

Public institutions, though, are agents of the government, and must abide by Constitutional restrictions on what government is allowed to do.  As a result, though the media doesn't like to say so, the Supreme Court has clearly ruled that students cannot be prevented from praying in public school, even if school employees can be prohibited from using their authority to enforce or even lead prayers.

Particularly in public institutions of higher education, there is a fierce battle going on between activist administrators who'd prefer to quash views of which they disapprove and students who demand that their free-speech rights be honored.  The rights are clear; granting them is free of cost, but takes away power from the powerful who'd rather not give it up.

Thus far, we've discussed the core rights that rightfully belong to every human being, and which government's job is to protect.  There are, however, several other categories of rights which are every bit as important, but which do not belong to everyone.  In the next article in this series, we'll discuss civil rights.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Politics.
Reader Comments
Interesting... I look forward to reading the rest of the series. As I grow older I find myself leaning more and more toward libertarianism -- I'm curious how or if you'll avoid coming to some of the same conclusions I have here. Good work.
July 6, 2009 9:18 AM
"Does the Constitution allow such restrictions on the right to speak? No. If you don't like what someone says, you don't have to listen, but you have no authority to shut them up"

On public property, yes. On private property, you can dictate restrictions on speech all you want. I hope you spend some time dwelling on property rights and how those effect other rights. A great deal of what one may do comes down to WHERE one is. For instance, free speech is restricted on airplanes or crowded buildings. The right to privacy is GREATLY debated, but even with those that support it, it differs again based on property.
July 6, 2009 9:41 AM
This was an incredible exposition on rights. I am enjoying the series thus far--the essay on civil rights was equally brilliant. Keep writing!
July 11, 2009 9:46 PM
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