Chapter 3

What Rights Do We Have?

Critics on both left and right have complained that America in the 1990s is awash in rights talk. No political debate proceeds for very long without one side, or both, resting its argument on rights--property rights, welfare rights, women's rights, nonsmokers' rights, the right to life, abortion rights, gay rights, gun rights, you name it.

A journalist asked me recently what I thought of a proposal by self-proclaimed communitarians to "suspend for a while the minting of new rights." Communitarians in late 20th-century America, are people who believe that "the community" should in some way take precedence over individuals, so naturally they would respond to rights-talk overdosing by saying "let's just stop doing it." How many ways, I mused, does that get it wrong? Communitarians seem to see rights as little boxes; when you have too many, the room gets full. In the libertarian view, we have an infinite number of rights contained in one natural right. That one fundamental human right is the right to live your life as you choose so long as you don't infringe on the equal rights of others.

That one right has infinite implications. As James Wilson, a signer of the Constitution, said in response to a proposal that a Bill of Rights be added to the Constitution: "Enumerate all the rights of man! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing." After all, a person has a right to wear a hat--or not; to marry, or not; to grow beans, or apples, or to open a haberdashery. Indeed, to cite a specific example, a person has a right to buy an orange from a grower even though the orange is only 2-3/8 inches in diameter (though under current federal law the grower could go to jail if he sells it to you).

It is impossible to enumerate in advance all the rights we have; we usually go to the trouble of identifying them only when someone proposes to limit one or another. Treating rights as tangible claims that must be limited in number gets the whole concept wrong.

But the complaint about "the proliferation of rights" is not all wrong. There is indeed a problem in modern America with the proliferation of phony "rights." When "rights" become merely legal claims attached to interests and preferences, the stage is set for political and social conflict. Interests and preferences may conflict, but rights cannot. There is no conflict of genuine human rights in a free society. There are, however, many conflicts among the holders of so-called "welfare rights"--"rights" that require someone else to provide us with things we want, whether that is education, health care, social security, welfare, farm subsidies, or unobstructed views across someone else's land. This is a fundamental problem of interest-group democracy and the interventionist state. In a liberal society people assume risks and obligations through contract; an interventionist state imposes obligations on people through the political process, obligations that conflict with their natural rights.

So what rights do we have, and how can we tell a real right from a phony one? Let's start by returning to one of the basic documents in the history of human rights, the Declaration of Independence. In the second paragraph of the Declaration, Thomas Jefferson laid out a statement of rights and their meaning that has rarely been equaled for grace and brevity. As noted in chapter 2, Jefferson's task in writing the Declaration was to express the common sentiments of the American colonists, and he was chosen for the job not because he had new ideas but because of his "peculiar felicity of expression." Introducing the American cause to the world, Jefferson explained:

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 abolish it.

Let's try to draw out the implications of America's founding document.

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