Tuesday, January 1, 2008

One Libertarian's perspective (rant?): the difference between rights and responsibilities

I started thinking about this when I was debating health care: is there actually a right to health insurance?

That's not so much the slam-dunk question as you might think.

Now before those of you who are not libertarians start pounding on the keyboards to call me a heartless materialist, let's think about this for a moment.

What's a right?

The Declaration of Independence:

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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So people have inherent human rights that governments are instituted to protect.

One of the things that most people don't know is that the Bill of Rights originally had a Preamble, written by Congress upon the passage of the first ten amendments when sending the package out to the States for ratification:

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

The key parts are in the first paragraph: (1) that many of the State Conventions had insisted on a Bill of Rights; (2) that such a bill would "prevent misconstruction or abuse" of the Federal government's powers; and that (3) such a bill would consist of "further declaratory and restrictive clauses."

In other words, the Bill of Rights was widely if not universally seen as a list of rights against which the government could not infringe.

Why was this necessary? James Madison said it best in Federalist No. 51:

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

It is also relevant to look at George Mason's Virginia Declaration of Rights from 1776, which argues that

That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Finally, just as an example, take a look at the First Amendment:

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 peaceably to assemble, and to petition the Government for a redress of grievances.

Notice that "rights" are qualities that human beings are seen as inherently possessing, and are--more importantly, things that the government is not supposed to take away from them. A corollary: rights when expounded in a constitution or other organizing document are only really "rights" in the western political tradition when they can be expressed negatively:

"Congress shall make no law ... law abridging the freedom of speech," and NOT "everyone has the right to free speech."

Why is this distinction so important?

In the actual construction from the Bill of Rights, this means the right to free speech derives from your fundamental rights as a human being which you delegated a certain amount of sovereignty to the government to protect.

The second ("Everyone has the right to free speech") construction actually places you in the position of the government giving you this right. And what the government gives....

Let's try a couple of real cases. Do you have the right to a driver's license? Most people would answer "No," understanding that driving is in fact a regulated privilege that the government can deny or revoke at any time you fail to follow the rules.

Therefore, instead of language like "Congress shall make no laws abridging the right of citizens to operate horseless carriages," you find State Codes telling you what you have to do to qualify for the government to allow you to drive.

Is there a right to an abortion on demand? I'm not trying to stir up pro-life or pro-choice arguments here, but not only is there a strong inferential case to be made for a general right to privacy in the 4th and 5th amendments, think about how a pro-choice amendment would have to be worded: "Congress shall make no laws abridging the right of citizens to terminate a pregnancy." It's a negative right statement. (Note, however, that women don't magically acquire the right to a FREE or STATE SUBSIDIZED abortion; you have the right to the procedure, not the right to force me to pay for it.)

Pretty much like the right of free speech: you can say anything you want on your blog, but nobody has to buy you a computer or internet access.

So abortion can be stated as a negative right (which leaves totally aside the question of whether or not it should be).

Likewise, you could state a right to gay marriage in a negative fashion: "Congress shall make no laws abridging the right of two consenting adults to enter into the contract of marriage."

But when we get to health care or education we are in a whole different ball park, because universal access to either at public expense cannot be formulated as a negative right.

Please do not mistake me here. I am not suggesting that public education or health care are not critical important issues. With Thomas Jefferson I agree that education has to be the mainstay of a republican form of government, and with millions of other Americans I agree that the inability of tens of millions of citizens to access health care is an outrage.

But it is not a violation of anyone's rights.

Instead, items like education and health care are societal RESPONSIBILITIES, and the role of government in meeting such responsibilities to any or all American citizens is something that is (A) part of the political process; (B) necessarily changes over time; and (C) involves the consent of the governed through elected representatives to fulfill these responsibilities through programs or legislation.

Now truth in advertising forces me to admit that the UN does not agree with me.

The Universal Declaration of Human Rights includes the following:

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23
1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25
5. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
6. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.

This document (honored in the breach by more than 98% of its signatories, but never mind) is not actually a list of rights, per se, but a list of rights mixed in with social responsibilities.

Take Article 26: "Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages." But while societies arguably have a responsibility to educate their citizens, education IS NOT FREE. It always costs someone money to provide it. And that creates a dynamic of interest between those who receive the benefit and those who are taxed to pay for it. Even people who agree completely that society has a responsibility to provide universal education at no cost to the parents, may disagree over exactly how many resources should be devoted to that education.

Likewise, look at Article 24: "Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection."

OK--but who sets the rate of "just and favourable remuneration," especially when it is to be supplemented "by other means of social protection" that have to be paid for by someone?

There's the rub, and there's reason that these items are NOT rights--civil, political, or property. They are social and societal responsibilities, and how the society chooses to meet those responsibilities will change over time.

For example: universal health care (even if the health care available had been something you'd want to undergo) COULD NOT have been offered by the US government in the 18th or 19th centuries because there simply weren't sufficient medical professionals and other care-givers to go around. It was only possible to have a meaningful discussion of the topic once the capacity to deliver the service actually existed.

There is an obvious criticism of this viewpoint that statists will immediately make: that our very conception of human rights changes over time, and that we cannot be bound by some late 18th century formulation by a bunch of white male elites. They will tell you about philosopher Peter Singer and his work (The Expanding Circle: Ethics and Sociobiology) on the continuing evolution of our ethical sense to include people we don't like, people from other cultures, primates, vertebrates, plants, and even apparently small household appliances, with the implications this has for our definition of rights. Singer's work is often cited (pardon me atheists for the pun) as gospel in terms of the redefinition of social obligations and rights.

You really have to read it to discover just how pedestrian and unconvincing the book is. You can pick it up on Abebooks.com in a used copy for about $6, which is all it's worth.

They will tell you that what I am suggesting is horrible because it demotes things like education or health care from being a right to a responsibility, getting people off the hook for taking care of those less fortunate.

Utter crap.

Societies are not measured by the rights they claim for themselves, but by the manner in which they live up to their responsibilities. The manner in which those responsibilities are handled will change over time in relation to (A) the resources available; (B) the prevailing political consensus; and (C) the relative costs of providing such services and benefits as measured against competing responsibilities. What statists want to do is legislate certain (and an ever increasing number of) societal responsibilities into absolute, unchangeable "rights," thereby depriving future generations of their opportunity to interpret the world as the circumstances greet them.

In reality, most people who want to enshrine such rights are not only moved by genuine concern for fulfilling their societal responsibilities, but an innate desire to increase the power of the State. That's the one thing that progressives and social conservatives agree on: the power of the State should be used for social engineering, and that engineering must be carved in stone as a "right" so that nobody can ever undo it.

The fact that they use the existing political system to make promises to various constituencies that THEIR interests will be enshrined as rights is a commentary on just how morally bankrupt the current Demopublican monopoly on state coercive power is.

I agree with Thomas Jefferson: "The earth belongs to the living." Aside from the Constitution, he wanted virtually EVERY law ever made to include a sunset provision that would be triggered at the passing of the enacting generation, and to require a positive re-enactment of those laws rather than a rubber-stamp continuance. Anything rising to the level of a right needed to be place permanently in the Constitution via the ratification of three-quarters of the States.

But just so I have recourse when people misquote me, I tell you THREE TIMES:

The United States has a responsibility for the education of her citizens.
The United States has a responsibility for the education of her citizens.
The United States has a responsibility for the education of her citizens.

The United States has a responsibility toward the health of her citizens.
The United States has a responsibility toward the health of her citizens.
The United States has a responsibility toward the health of her citizens.

How we meet those responsibilities is the grist for legitimate political debate.

How we meet those responsibilities will determine the ultimate fate of this experiment in republican politics we call the United States.

How we meet those responsibilities will be the record by which we will either be remembered (for non-theists) or judged (for theists).


um, no said...

I am enjoying what you write on your blog. I appreciate your focus on rights versus responsibilities. I want to return to an earlier subject which perhaps quite unexpectedly raises a rights issue. The rights to life, liberty, and the pursuit of happiness are exercised by use of our bodies. Few rights are more naturally obvious than the right to bodily integrity. To literally snatch away live body parts (save for horror films) clearly violates those most basic protection from assault of the physical person without which we are not free.

And so I submit to you that all your highest principles inevitably lead, upon scrutiny, to recognizing that those forces in the medical field which introduced routine infant circumcision on false pretenses must place medical ethics above inertia, cowardice, and cash. They must refuse to perform medically unnecessary genital modifications on boys.

If we may not be deprived on fingers, ears, and lips, and if the sharp knife of genital alteration may not fall on females, the surely no singular exception may permit the deliberate diminishing of the pleasure capacity and function of the penis.

Intact genitals (undisturbed by meddling) are a right.
Protecting that right is a societal responsibility.

I hold these truths to be self evident, and I know I can count on you to take them seriously.

Duffy said...

I think the key here is one of cost. One has the right to pursue things freely but not to have things provided by others. An idea I think the founders would find repugnant.

If we have a right to health care, why not a right to food, water, shelter or clothing? All of those are more immediate than health care. I can go ages without health care (normally) but only a few days without water.

As for the circumcision thing; that's a decision made by parents and not forced upon you by the state. If you are circumcised against your will blame your parents.

um, no said...

duffy said:

"As for the circumcision thing; that's a decision made by parents and not forced upon you by the state. If you are circumcised against your will blame your parents."

duffy, I basically agree with your logic here, however parents rarely are the one's to circumcise a child. It's done (usually) by a medical professional. For good reason, they are regulated by the state. You need a license to practice medicine, and you must act withing certain boundaries, such as having the informed consent of your patient before operating.

Clearly with children, informed consent can be obtained only by proxy, from parents. But proxy consent comes with a higher standard. For example, an adult may consent to removal of their own limbs for purely cosmetic reasons. The standard is different when acting as proxy for a child.

So a child circumcised against his will can place some blame with the parents who allowed it, but what about the medical professional who willingly accepted proxy-consent for surgery he/she knew (or should have known) was totally unnecessary and would mutilate the child's body?

And duffy, how can you reconcile the disparity of treatment between males and females under the law? Seems to me one must oppose the anti-FGM law, support extending it to include boys, or forget about equal protection under the law.