The Monster of Modern Mutation: "Rights"

June 2009

P. Gardner Goldsmith

There has been a series of disastrously erroneous statements recently made by politicians and political commentators concerning so-called "rights" and what the political class deems the necessary and equal provision of them by government. In that light, some advocates of small government have correctly observed that the very definition of the term "right" has been twisted, corrupted like a wayward child on the mean streets of Victorian London, turned into something that flips the relationship between man and government on its head.

They are, of course, precisely right, and it is rewarding to expose some of these contemporary examples of philosophical revisionism in order to explore how the term "rights" has been corrupted, and why. But it is even more rewarding to expose other contemporary stories related to "rights" in order to realize something more profound. By widening the lens, one can finally destroy the fallacy that "small government is created to protect rights".

It is not, and it cannot be.

By studying current trends in the debate over so-called "rights" as defined, supposedly defended, or now "offered", by government, we will come to see why this is the case. We will understand that rights and written law in the hands of any government are incompatible.

But, first things first.

At this time, the assault on the traditional definition of "rights" is almost complete. In Washington DC, Barack Obama recently announced the creation of a "Credit Card Holders' Bill of Rights", which will be yet another federal mandate running contrary to the US Constitution and will impose new rules on how credit card companies run their businesses. The ethical and economic poison this creates can be explored at another time, and are very valid points to discuss, but the title and politically-correct, Orwellian, feel-good way in which the populace and pop media accept the terminology need to be cited. They send shudders down the spines of people who believe in natural rights and the definition of words, and justifiably so.

This policy move was quickly followed by President Obama's proclamation that there will be a "Renters' Bill of Rights" in which federal politicians and bureaucrats will dictate to owners of rental property how long they must wait before evicting a tenant for non-payment. Like the afore-mentioned "Credit Card Holders' Bill of Rights" this is a clearly unconstitutional move that could not stand up to a strict reading of the document and the few enumerated powers granted to the federal government, and it is an ethically backwards and economically destructive act of coercion.

But it's got "Bill of Rights" in the title, which harkens back to the Founding era, and makes people feel good, and shields them from the fact that these supposed "Bills of Rights" are nothing of the sort. In fact, they are infringements on the right to private contract and the retention and peaceful use of one's private property (without which one cannot insure the continuation of his own life).

The deception goes unnoticed by all but a few. The warm-fuzzy propaganda is accepted. Rights have nothing to do with keeping government out of our lives and private interactions, they have to do with interfering, with regulating our activities in order to curry populist sentiment in a society that no longer understands the concept of "rights" as it was first fully articulated in the 17th Century.

A so-called Bill of Rights means government, not the individuals with natural rights, can tell people how they will peacefully offer their services or property for use by another.

Two-plus-two is five. America loves Big Brother.

But it goes further. As Summer, 2009, comes upon us, we hear a saber-rattling on the deck of the not-so-good ship US Government, we hear talk of health care "reform", and with it, the term "health care is a fundamental human right" is hollered from the masts. The pirates of the state prepare to invade private contract once more, slicing up what's left of the carcass of our semi-socialized health insurance and medical industries to be served to some Americans at the expense of others and to be regulated to "make things fair".

After all, we have to have equal access to the "rights" that government provides don't we?

Then there are the state stories, New Hampshire being the most recent and illustrative example.

In early June, New Hampshire Governor John "Partnering-for-our-wellness" Lynch signed into law with great bravado a bill legalizing so-called "gay marriage", and here is what he said:

"Today, we're standing up for the liberties of same-sex couples by making it clear that they will receive the same rights, responsibilities, and respect under New Hampshire law."

While that statement rolls well off the tongue - which is apparently all that is needed to make newscasters and voters smile - it has in it the same deep misuse of the term "rights" that can be found in Barack Obama's grandiose pandering.

One does not "receive" rights from the government, as this leftist progressive believes.

But it gets even worse. Now, even supposed defenders of "small government" are getting confused about rights. On a recent broadcast, Boston's most popular talk radio host, Jay Severin (a man who used to call himself a libertarian until it became clear that his principles were far from consistently libertarian) held an exchange with a caller in which they discussed the nature of rights. The nervous man on the phone tried to explain to Mr. Severin that rights are innate, granted by God or, if one is not religious, simply part of the nature of one's existence. He said that governments are there to defend our rights, to protect us from encroachments on our rights, and that the rights would exist whether we had governments or not. Basically, he was simply restating what Jefferson wrote in the Declaration of Independence.

But Mr. Severin found fault with the caller. He said, to paraphrase, "watch it, sir, because you're treading on thin ice. If you say that all men have certain natural rights and that they come from God or from the nature of their existence, then you run the risk of letting foreigners be granted to same rights we enjoy under the Constitution. If you don't clearly state that the rights we enjoy come from the Constitution, then you'll have to grant the recognition of rights to everybody, even if they're not US citizens!"

To whit: duh?

You see, what Mr. Severin was hoping to do was avoid the sticky situation of having to accept that foreigners captured on the grounds of other countries and brought to the US in an unconstitutional military excursion (later held without legal representation or habeas corpus trials and possibly mistreated in interrogations that use techniques termed torture after World War Two) have innate rights as human beings whether they are citizens of the US or not, that, regardless of whether these people are US citizens, the rules constraining the US government from infringing on human rights apply to anyone brought under the purview of US law.

Mr. Severin, who is usually a backer of freedom in many cases, was willing to flip the concept of rights upside down in order to reach his predetermined conclusion. He was willing to side with leftist-progressives who tell us that "rights come from government", and are conferred by the very abstract artifice that people themselves create to legally push other people around. If he could not see the circular logic, the unsustainable nature of his argument, then he ought to consider getting off the air.

Why?

Because by employing the concept that rights are conferred on people by the government, he opens a Pandora's Box, and must accept that there is nothing philosophical or legal that can hold government back if those in power want to further attenuate our liberties. By avoiding the reality that government is nothing more than a group of people who exercise power over others through what is called "legality", he turns a blind eye to the fact that the group entity called "government" is simply made up of people anyway. If government exists prior to individuals, then he pushes against the fact that government is composed of individuals, and he does not recognize the circular logic. Government cannot be parthenogenic.

Let's be clear. According to the political-philosophical tenets upon which the US federal government and the governments of the various states were established, "rights" are inherent. Rights are also "negative" in nature, meaning you have a right to be left alone by me, and I have a right to be left alone by you. It's called "negative reciprocity". No one has a "positive right" to something provided by another person or by government, which is really just a machine for indirectly taking it from someone anyway. "Rights", per se, cannot be given to anyone by government. People have rights upon their creation.

In the traditional view of a small-government defender, which Jay Severin supposedly is, government, or "the state", in its generic sense, is created to protect our rights to our lives and property, to stop us from preying upon one another. As Jefferson said, the moment government begins to encroach upon those rights, to do that which the government was created to stop, it becomes illegitimate, and humans have a duty to abolish it.

If American society has reached a point when even supposed defenders of "limited government" are unwilling to articulate the true nature of "rights" as a bulwark against government, then American society is in trouble.

But perhaps it was in trouble for much longer than we suspected. Perhaps even Jefferson overlooked something.

Over the past century and a half, the idea of "rights" has been under attack. In some cases this has been overt, in some cases more subtle, more insidious, and, of course, it is directly tied to private property and incursions into it made by government supposedly on behalf of "the people".

To see how far the American populace has come in how it views rights as positive, rather than negative, all one need do is look at how the popular view of the 14th Amendment "Equal Protection" clause has changed over the years.

As written, the Equal Protection Clause of the 1868 amendment states that no American citizen shall be deprived by any state "equal protection under the law". This was codified, in part, in order to try to insure that blacks and other minorities would be protected by southern governments just as fully as whites - we can discuss at a later date the myth that government police actually protect anyone any better than private individuals using their own weapons.

The key here is the word "protect". When the 14th Amendment was written, the American populace seemed to have a better handle on the traditional rationale for the creation of government - to protect people against other people, to protect them against threats to their lives, liberty or property by others or by governments. Later we will investigate the inherent contradiction of forming a government that will "protect you against government". Some of the founders recognized the inherent fallibility of that concept, and tried to restrict government powers while insuring that people would be able to fight and overthrow government, but they didn't go far enough).

That standard for the rationale of government did not last long, for in 1876 the US Supreme Court ruled on a case called Munn v. Illinois, concluding that "when private property if devoted to public use, it is subject to public regulation."

It didn't seem to cross the minds of those in the majority that all private enterprises are regulated by others, through the consumer's ability to offer or withhold his money for a free market exchange. What was foremost in their politically driven craniums was that government existed in order to make things "fair". This pernicious invasion of private property, this inversion of power, this reversal of the tenets upon which the US and various state governments were founded has continued from that time, manifesting itself in myriad regulations that have left business owners reeling, cost consumers trillions of Dollars, and fed the popular myth that people have a "right" to have government tell others how to conduct their businesses, or even give them things rather than to "protect" them, as the 14th Amendment actually states.

It has led to the "Public Accommodations" portion of the 1964 Civil Rights Act, which, through legislative rather than court action as we saw in 1876, turned all private property into de facto public property in the US, and fueled the popular misconception that people have the "right" to be customers anywhere, to enter the private property of a business whether the owner agrees or not. This has led to all sorts of problems, wherein store owners have had trouble keeping vagrants out of their shops, and have had lawsuits filed against them for firing difficult employees who claim they have mental problems and were fired due to the prejudices of the owner. It has led to the 1992 Americans with Disabilities Act, in which the federal government told businesses that they had to accommodate people with disabilities, even to the detriment of their bottom line. Thus, Americans saw the almost laughable effects, such as restaurateurs creating wheelchair ramps only to have the government tell them the ramps were the wrong angle and they had to do it all over again, thus putting them out of business and making it impossible for anyone to eat there, as well as the classic striptease club forced to create wheelchair access to its stage for the possible wheelchair-bound stripper who demands to put on a show.

Some might wonder how minorities would get by if government did not interfere in this way. How would they fare if the market weren't regulated in favor of positivism?

None other than the great economist Walter Williams has explained that it is, in fact, the free market that helps minorities and small interest groups get what they want. When government gets involved, it, by its nature, must restrict choice or regulate it away. For example, Williams has observed that in the "Jim Crow South", where government laws restricted private business owners from, say, offering seats on their trolley cars to black people, the owners would try to skirt the law. Why? Because they had a financial incentive to fill the seats, and any open seat was a loss. Similarly, Williams (a black man, by the way, and, as he says, a very handsome man at that) notes that the moral sanctity of private property must come first. If, he has noted, a hotel owner is unwilling to rent a room to him because Williams is black, then the hotel owner will lose out to a competitor who does open his doors to black men. Economic advantage goes to the open-minded. It's a simple axiom, and holds true through the ages.

As we have noted in our Liberty Conspiracy Audios (amazing jewels of MP3 wonderment available free at Itunes or www.libertyconspiracy.com), government ownership or regulation causes all sorts of unintended consequences. When the government owns something, it tends to cause a "tragedy of the commons", which causes over-utilization of the resource, new restrictions, and a general trend towards the "lowest common denominator" in which minorities are shut out and choices are next to nil. On prior occasions, I have explained that if paper were regulated the way the radio and television spectra are regulated, you would suddenly find that what used to be multitudinous choices at your local Borders or news stand -- choices ranging from crochet magazines to pornography (you haven't lived until you've seen crochet porn, by the way!), to political magazines, to music mags, to great horror magazines like Cemetery Dance - would be gone. Instead, you would see only a few choices, all government approved and politically correct.

Anyone up for the stacks to be filled with "Garrison Keillor Weekly"?

Well, with government ownership of radio, that's what you get on NPR, and you pay for that drivel.

If government regulates what you get are higher prices, and, eventually, fewer choices, resulting in a worse market for the very minorities the government busy-bodies were trying to help.

For example, with the restaurant that had to re-do its handicap ramp because it was not the right angle? On the rare occasion that the restaurant did have wheelchair-bound customers, the establishment merely gave the person a hand wheeling in. Saved money, and it was easy. The customer got in, had a good meal at a good price, and was helped out.

Now, that restaurant isn't open at all, so the very option of going into the place has been eliminated. Nice work, government.

That example is clear, but there are thousands of other situations that have arisen in which the businesses remain open, but their costs of operation go up, forcing resources that would normally have been spent on other things to be spent in ways the politicians desire, not the consumers. This has caused untold opportunities to be lost and harmed everyone.

Look, either private property - that upon which we depend to sustain our existences - is ours to peacefully control, or there is no such thing as private property and everyone has a supposed positive "right" to it, causing all these terrible consequences.

Sadly, it is the latter view that holds sway around the world today. From Hawaii to Haiti, from Sweden to South Bend, Indiana, from London to Lexington, Kentucky, the vast majority of people believe that rights are now positive. In all these places, people and the governments that large portions of them elect, seem to think that they have a right not just to enter a private business, but to the very fruits of someone else's labor.

After the 1876 Munn ruling, and concurrent with the growth of government regulation in the Twentieth Century, US citizens and those in other nations saw the rise of the so-called "welfare state", which, in addition to being immoral and creating dependency, shifting productive assets and time to non-productive endeavors and giving politicians more power over peoples' lives, inspired millions to believe that government is there to somehow "protect" them from the vicissitudes of life and provide them with some kind of retirement and hedge against unemployment or medical trouble.

Beyond the problems of dependency and the dampening effect this has on peoples' interest in caring for themselves, this, on a rhetorical level, increases the popularity of the idea that people have a positive "right" to something.

But if one has a right to the fruits of someone else's labor, one is saying he can make a slave out of that person. He can control his neighbor's private property and force him to act according to his wishes, or the wishes of the majority behind the government. How can such a concept exist in the modern world, and is that how we arrive at such sloppy language as that of New Hampshire governor John Lynch when he says homosexual couples will "receive" the same rights as heterosexual couples?

How is it that people have come to misread the 14th Amendment so that they now believe it says there shall be not "equal protection under the law", but equal "treatment", a change that shows us Americans believe government is not there to protect them and their property equally, but to give them things equally?

Clearly, people should understand that no one has a right to the fruits of another person's labor, or his physical being. Rarely do people walk up to others and point guns at them to get them to hand over cash or make them engage in a certain kind of work. Yet this is what they do indirectly through government. In fact, government can be said to be the greatest mechanism of evil man has ever created, because it allows people to prey upon others indirectly; it shields them from the horror and immorality of their own coercive and predatory actions. In fact, it lauds them for engaging in this indirect violence, calling it "community minded" and "civic" as they vote to have their neighbor's salary stolen or his property regulated or his job manipulated or his contract with another re-written against his will

Upon close examination, it seems evident that it is not simply the build-up of welfare programs and subsidies, government schools and bailouts, federal cabinet posts and regulations that have led to this prevailing attitude among Americans that they have rights "to" things provided by government, and, therefore, provided indirectly through majority sanctioned slavery. Certainly, once such policies are established, they tend to cause a snowball effect, making more people assume that they are legitimate, and inspiring those same people to call for government to clog even more areas of peaceful societal interaction. Government intervention and theft begets more acclimation, which begets the further loss of peoples' ability to see free market alternatives. Even as resources get squandered, as opportunities are lost, as businesses get regulated until they move overseas, voters get used to the state doing this or that, and don't even consider that there might be a different, more ethical, more efficient way.

But the problem cannot merely stem from the existence of government programs, for the earliest programs did not pop out of thin air. They had ideological origins, and sprouted from people who successfully convinced voters that there was a proper role for government in letting theft and coercion masquerade as societally beneficial.

What's the cause?

Regardless of the long-held, long-sold myth of so-called "limited government", it is clear that the origins of the problem lie within the most basic, widely accepted, rationale for the existence of the government: that the state is justified in attenuating your rights in order to protect your rights, that it can take from you in order to create the police force that will protect you from takings. Tyranny follows, because the façade of so-called "limited government created to protect your rights" is a fallacy. It is itself tyrannical.

The state can only exist by taking revenue against one's will. If one voluntarily offered his money, then it wouldn't be a state, it would be a business, a market participant that rose or fell based on how it catered to the consumer. The popular notion promulgated by "small government conservatives" that, traditionally, we "voluntarily give up some rights in order to protect the bulk of the others" is a myth, plain and simple. Try not giving up your money when the tax collector calls to tell you there's a new police contract.

Government is not a voluntary organization, it can only exist by infringing on your rights to your property and your life, even as its boosters tell you that it exists to defend those rights. No moral system can rest upon a tautology.

And as admired as they have been over the centuries for their radicalism in favor of supposed individual liberty, people such as John Locke and Thomas Jefferson are guilty of the most fundamental errors supporting this conservative fallacy, a fallacy that starts the ball rolling towards oppression because it excuses oppression and tells you it's for your own protection or that you voluntarily accepted the premises.

In Locke's Second Treatise, the foundational document upon which modern societies rest their beliefs in "Natural Rights", he states that men have certain innate rights, and form government to protect those rights. He notes that "no man should be deprived of any portion of his property without his consent." But shortly thereafter he defines the offering, writing, "and by his consent, I mean the consent of the majority."

In both cases, he overlooks his own contradictions. One cannot protect his rights by having them suppressed. There is no "trade-off" if real, voluntary trade is out of the picture; government is not trade.

In a similar way, Thomas Jefferson's heroic and legendary document, the Declaration of Independence, missed something profound as well.

Jefferson rightly said:

"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."

(Funny, as I typed this, I almost wrote "that tall men are created equal", good thing Jefferson proof-read.)

Unfortunately, Mr. Jefferson added the following mix of myth and abbreviated logic:

"That to secure those rights, Governments are instituted among men, deriving their just powers from the consent of the governed."

There is the myth, which we have studied earlier, but which requires us to expose more fully. No government exists due to the consent of all the governed. If that were the case, it wouldn't be a government, it would be a private business only getting revenue from those who freely offered it.

And here is the final important portion, where he halts in proper logical analysis by saying:

"That whenever any Form of Government becomes destructive to these ends, it is the Right of the people to alter or abolish it..."

Jefferson later adds that it is the "duty" of people to abolish tyrannical government that works against their liberty, which has to do with his belief in God and Natural Rights, but it is the study of government power and the options reserved to the people which are important in our analysis.

If Jefferson had fully studied the nature of government, he would have recognized that no government can exist without infringing on rights. It simply is not possible, for if it operated through voluntarism, it would not be a government. As a result, Mr. Jefferson should have simply written:

"Government from its outset is destructive to those ends, for it can only exist by infringing on one's rights to property. Therefore, it is the right of the people to abolish it. No Government shall take its place, because no government can exist without infringing on innate rights."

It seems clear that the seeds of the modern "positivist" state were sown in the very words of those who wrote in favor of "negative rights", because they always associated those rights with the existence of government to supposedly defend them, never acknowledging that the two are incompatible.

Even today, we can find excellent examples of how the supposed supporters of "protection" of rights must attenuate rights if they want the state to function.

Sam Dodson, a resident of New Hampshire, was recently held in a New Hampshire jail for over two months after he tried to bring a video camera into a courthouse. Yet, the US Constitution states very clearly that the right to a free press shall not be infringed.

The rationale that was offered in defense of the state's actions against the journalist was that the court would simply be unworkable if the presiding judge could not place limits on how many people could enter the room, and what they could do. Too many journalists and cameras would be a distraction, and make the delivery of justice impossible, and people have a right to speedy and fair trials.

But... People have the right to report on the actions of the government as well, soo... how do we square this regulation in order to make the court work, with the supposed "untouchable" right to be a journalist?

Likewise, airline pilots would like to carry firearms, and they have a "right" to keep and bear arms that shall not be infringed. Yet in the airways regulated by the federal government, this right is regulated away.

How is it possible that government and rights can coexist, if the full use of rights makes it impossible for government to operate what it controls?

Americans supposedly have a right to free speech, but over the radio spectra the government stole in the 1920's, government codes bring millions of Dollars of fines for "indecent" speech or pictures.

In all of these instances, and many more, the very government supposedly created to "protect" the rights Jefferson lauded in his day repeatedly infringes on them, and must do so in order to function within the over-used "tragedy of the commons" situations it creates.

The problem stems from the fallacy that government is there to protect your rights, and that various state laws are written to insure those protections.

Don't get me wrong. I'm not saying I'm against law, just law written by government that applies to all, whether they like it or not.

Let me explain.

After the recent Heller gun decision by the US Supreme Court, in which the majority found (um, duh?) that the "right to keep and bear arms" mentioned in the Second Amendment was an individual right, not a group right, Justice Antonin Scalia spend sixty-five pages citing historical evidence that this was what the Founders believed. That was fine, although he could have simply used logic (and fewer pages) to conclude that "groups" are just aggregations of people, and they are always reducible to the people comprising them, therefore, "groups" per se cannot have rights, only human individuals can. Groups are essentially nothing but abstractions, hence the "duh" earlier.

Unfortunately, after all that effort, Scalia then added what I will offer in paraphrase, "but of course, we all know that rights can be attenuated".

Huh?

The entire point of it is that rights are sacrosanct! They are rights only in that, by their nature, they are inherent and cannot be attenuated by outside arbitrary force without acting against God or nature (whichever you want to pick).

In reading this, I thought that perhaps Americans had been badly misled, even by the so-called "small government" conservatives like Scalia who claimed lineage from Jefferson. All this time, they put their trust in government to protect their rights, when, in fact, government existed only at the expense of rights, and was now redefining the term itself!

I began to think that perhaps the term "negative rights" was not only unusable because it had been suborned, corrupted in order to facilitate arbitrary state whim, but that the entire construct of "negative rights" had, from its outset, always been associated with the government that was created to identify and supposedly "protect" those rights.

"Rights" required laws to recognize them, and government to protect them.

I began to think that perhaps a better term would be "societally determined modes of acceptable behavior". In this fashion, one sees that people generally want to maximize pleasure and minimize pain. They are also sympathetic and empathetic creatures who communicate and acquire reputations. As a result, as we see in the free market, bad actors are often shunned, and good actors prosper. Mistakes are rectified quickly, and standards of living grow as each man tries to better his station through voluntary trade and peaceful interaction. A cipher to "rights" organically develops as people work out what behavior is acceptable and what is not. No government entity is needed to make this system work, and profit, loss, inclusion, exclusion, and reputation drive good neighbors to trade and do good in order to do well.

As a result of this line of thinking, I spoke with Sheldon Richman, the editor of "The Freeman" magazine, and a great proponent of free markets. Sheldon told me that that this was essentially what the British Common Law system was; that was how it developed. That made a lot of sense to me.

So, how did people go wrong along the line? Where did they make the turn from societally determined acceptable modes of behavior to government and law?

In a rewarding conversation I recently had with my friend Glenn, I got the answer. I told Glenn that I had become very disenchanted with the term "rights" and the laws written to support them. I also mentioned what Sheldon had told me, and Glenn said, that the trouble seems to have arisen when the laws were written down and the law writers eventually became law makers.

I understood, the problem arose when people took the rules they had organically created through market exchange in society, and had them written down, codified by government.

I asked Glenn about Moses, and mentioned that if one were opposed to written law, how should one view the Ten Commandments?

"Simple," he told me. "Those laws weren't written by government. They were written by God."

Adherence to the Commandments is voluntary, and it is up to you to be a moral being. The consequences are spiritual, not state-based.

And there was the answer. The thing to avoid is government law, and today we can use the shorthand of "law" itself, "statute" or "legal code" to mean the same thing.

Once one places the power to write laws into the hands of anything other than a voluntary, market institution, he sets himself and his neighbors on the path to tyranny. There is no avoiding this trend, for the action of creating a government to write and enforce the laws requires force by the state, and is predicated upon theft in order to make the government run. The very act of trying to get a non-market entity to write the laws and enforce them requires predation upon those who would not voluntarily participate.

And then the monster simply grows. Laws created not to supposedly "protect the bulk of rights" left after the initial predation begin to get written. Politicians create myriad offices and increase their power over individual lives. The tyranny grows and grows until the façades of ‘protection" and "community" can no longer hide the ugliness.

Revolution approaches, be it intellectual or actual, all because people believed in the myth that government laws and rights were somehow compatible.

I hope you, like I, can see that they are not.

And I hope the revolution does not simply replace government, I hope it abolishes it.