Another look at rights
There's an inescapable moral component, and it inevitably leads us back to God
Engaged observer of the present scene that I imagine you are, since you read Precipice, you’ve surely heard about Politico journalist Heidi Przybyla stepping in it on MSNBC the other day with her attempt to make the understanding that rights come from God a tenet of Christian nationalism. She even tries to burnish her cred on the matter by making sure to distinguish Christian nationalism from Christianity. In the process, she makes it clear she has no substantive understanding of either Christianity or rights.
Her can-you-believe-someone-would-assert-such-a-thing tone makes clear the inch-deep thought she’s given to the matter:
“. . . the one thing that unites all of them, because there’s many different groups orbiting Trump, but the thing that unites them as Christian nationalists — not Christians, by the way, because Christian nationalist is very different — is that they believe that our rights as Americans, as all human beings, don’t come from any earthly authority. They don’t come from Congress, they don’t come to the Supreme Court, they come from God.”
And then she picks and chooses which applications of her conception of natural rights are cool in her estimation and which one aren’t:
The problem with that is that they are determining man, men — it is men — are determining what God is telling them. And in the past, that so-called natural law is, you know, it’s a pillar of Catholicism for instance, it’s been used for good in social justice campaigns. Martin Luther King evoked it in talking about civil rights.
But now, you have an extremist element of conservative Christians who say that this applies specifically to issues including abortion, gay marriage, and it’s going much further than that as you see, for instance, with the ruling in Alabama this week that judges connected to that Dominionist faction and talking about a lot of other issues, including surrogacy, IVF, you know, sex education in schools. There’s a lot in addition.
Refutation has largely focused on the “We hold these truths” sentence in the Declaration of Independence, and rightly so. Thomas Jefferson had some funny notions about religion, but he obviously wanted the record to state that the nation being founded by his document held God as the origin of rights as its bedrock principle.
Ive written about rights a couple of times in recent months, once here at Precipice and once in another venue.
Last June, I wrote a post here simply titled “Rights.” I made clear, I think, where I stand with regard to what has Przyblya so bothered:
Many things distinguish the human being from lower species: movable thumbs, the ability to develop language, the power of reason, the ability to mark time, a yearning for transcendent meaning.
Early on, Western thinkers started to look at traits exclusively associated with social life among humans, such as virtue, justice, duty and freedom. At some point, the concept of rights was introduced into the discussion.
Aristotle, Aquinas and Kant, in succession, moved us closer to a fleshing out of our innate inkling that morality dictated that the individual’s sovereignty and freedom of movement and choice could not be infringed upon. Locke advanced our confirmation of this intuition even further with his assertion that certain aspects of human life, most notably owning property, were built into our very nature, and that law must prohibit their violation.
The founding documents of the United States, of course, clarified this further. So did France’s Declaration of the Rights of Man, although when Robespierre took the reins of the revolution the Declaration inspired, his bloodthirsty zeal set the rights specified in its seventeen articles on the back burner for many years.
I would posit that the evolution of this discussion has been a process of coming to understand that we didn’t invent these rights, that there are really only a few of them, they’ve already been discovered, and we won’t be finding any new ones.
I won’t rehash the specific matters I examine in the piece (student loan forgiveness, affirmative action, and wedding services for same-sex couples); I’d rather you’d read it, if you haven’t already.
And then in December, for The Freemen News-Letter, on the occasion of the 250th anniversary of the Boston Tea Party, I wrote an essay called “John Locke and the Ruckus in the Harbor,” which provides some Enlightenment-era substantiation for how the American vision crystallized the conviction that rights have a transcendent authorship:
Framing the Boston Tea Party with a spiritual dimension must be done carefully. That is to say, behind the level on which the concepts of ownership, property, and justice take prominence is a level on which the imago dei status of the human being must be central, but that must be argued convincingly. A critical mass of people has to be persuaded that that centrality is essential for the argument that taxation requires representation to have moral weight.
What actually happened on December 16, 1773, when the perpetrators headed from the Old South Meeting House to the ships in Boston Harbor, was pretty clearly a mob action. The Sons of Liberty, the organizing group, was a rather rowdy bunch, fond of meeting in taverns and burning public figures in effigy. They knew enough about the relationship between the state, the individual, and the question of what belongs to whom on a gut level to be motivated to stage their events and, by the time the Revolution broke out, expand their network of loosely organized chapters up and down the eastern seaboard.
But the groundwork had been laid in the ideas fleshed out in Chapter 5 of John Locke’s 1690 work Second Treatise on Civil Government.
One noteworthy aspect of that work is that Locke refers to God more than was characteristic for him. He predicates what he has to say about appropriating objects found in nature for productive use by asserting that the human being owns himself, as is befitting a creature imbued with free will. By inference, what the individual does with that self is his own as well.
It’s time to delve further into the matters of individual sovereignty, the relationship between rights and obligations, and - well, a number of things stemming therefrom.
And an ideal person to consult about it is Wesley Hohfeld, a legal theorist whose work straddled the end of the nineteenth century and the beginning of the twentieth.
Hohfeld said that there are four elements involved in determining what rights are: privileges, claims, powers and immunities.
An example of privileges (here meant to be synonymous with liberties) is your right to pick up a seashell when you’re walking along the beach.
The claims concept has to do with fulfilling contractual obligations, such as that of an employer to pay an employee.
An example of the powers element would be the situation in which “[a] ship’s captain has the power-right to order a midshipman to scrub the deck. The captain’s exercise of this power changes the sailor’s normative situation: it imposes a new duty upon the sailor and so annuls one of the sailor’s Hohfeldian privileges (not to scrub the deck).”
A couple of examples of immunity would be:
[t]he United States Congress lack[ing] the ability within the Constitution to impose upon American citizens a duty to kneel daily before a cross. Since the Congress lacks a power, the citizens have an immunity. This immunity is a core element of an American citizen’s right to religious freedom. Similarly, witnesses in court have a right not to be ordered to incriminate themselves, and civil servants have a right not to be dismissed when a new government comes to power. All of these rights are immunities, corresponding to an absence of a power in some other party to alter the rightholder’s normative situation in some way.
if you dig further into the link from which I get these examples, you’ll see that not only did Hohfeld break all this down further, but others have weighed in with various nuanced perspectives as well.
I’d like to look at the distinction between negative and positive rights.
I really like the point Bastiat insists on putting front and center regarding that dichotomy:
“. . . in fact, it is quite impossible for me to separate the word "fraternity" from the word "voluntary." It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.”
Again, subsequent thinkers have parsed the negative-positive framework every which way, but if one isn’t enamored of cleverness for its own sake, it really comes back down to this. Any kind of action taken in the name of a “common good” has to be one of the volition of the individuals motivated to take it.
The default position is individual sovereignty. You have no right to anything that compels some action on another person’s part. That’s why I bristle so at the third of FDR’s “Four Freedoms” in his 1941 speech of that name. Two others - speech and worship - are just reiterations of what we find in the founding documents. The freedom from fear bit gets a little iffy, because fear is an emotion, and I’m not sure we can cleanse it of subjectivity.
But that last one - freedom from want - is way off-base.
He fleshed it out further in a 1944 speech in which he had the temerity to put forth a “second bill of rights”:
The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
The right to earn enough to provide adequate food and clothing and recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.
This, maybe more than anything in the four Franklin Roosevelt administrations, puts his statism on full display. Every last one of these “rights” requires someone to do something - that is, imposes an obligation. And we need to be very careful when getting into obligation-talk, because obligations involve a curtailing of liberty. If, as a sovereign individual, my time is my own, and if the fruits of my labors are my own, I’m hard pressed to see how government can coerce me to use those resources to achieve these aims.
Also note the lavish use of subjective adjectives: decent, adequate, good, useful.
And are you surprised at the fact that the supportive article from which I quote was written by Marxist and appears in the People’s World?
At this point, the leftist counter-argument inescapably bases itself on a strong and worthy human sentiment: compassion. You know the drill. “You can’t possibly be so heartless as to be okay with people going homeless, or not getting the education needed to advance themselves, or not getting medical treatment for a bad condition.”
And those scenarios rightly tug at our heartstrings. But how are we going to ensure - as a matter of defending “rights” - the remedies without making somebody do something. We have to make somebody build the houses, teach the students, and provide the treatment.
You can’t provide decent remedies to these unless somebody wants to provide them.
Thankfully, humanity has always had a sufficient reservoir of decency to ensure that, at least to some degree, these remedies are provided.
But we can’t go farther.
God’s granting of the gift of choosing A over B or vice versa first became apparent when Eve thought the serpent had a point about the apples on the Tree of the Knowledge of Good and Evil being at least as delicious-looking as any others in the garden. She. chose poorly, but God didn’t stop her.
And Christ doesn’t demand our devotion. He says some may choose to not see his oneness with his Father. He does lay out the consequence for that, though. At the point of passing into eternity, he says to those who so choose, “Get away from me. I don’t know you.”
But the choice is ours.
Let’s put this in undeniably stark terms:
Why can’t I steal your car, burn your house down, and/or cut your arms off?
Here’s an obligation you do have. You have an obligation, in answering the question, to rely on something more substantive than “Well, gosh darn it, those are things that cause misery for those two whom it’s done,” or “Oh, come on, everybody instinctively knows those things are wrong.”
Sorry, but such answers leave layers of the onion to be peeled back. How do we define misery? How do we define wrong?
That’s what really creeps me out about Przyblya’s clear implication that legislatures or courts can grant, even create, rights. That’s way too much to ask of our fellow human beings, who are clearly fallen creatures with limited ability to create or grant anything.
Nope, sorry, if you take God out of the equation, you come up with a big fat nothing.
Again I say that perhaps nothing requires as much exercise of caution as a discussion of what rights are or aren’t.
The word “rights” should never be used in a sentence without the word “responsibilities.” In the age in which we grew up, they were two balances on the scale of justice. Unfortunately, the second “r” has become profane and only the heartless use it according to many.