Individual Rights as Common Goods

A prominent strand of postliberal thought holds that government exists to advance the common good and that individual rights have been overemphasized. Harvard law professor Adrian Vermeule has defended the government’s authority to advance the common good “even when doing so requires overriding the selfish claims of individuals to private ‘rights.’” This is a serious position answering a real weakness in how rights are often understood: as trumps held by isolated individuals against a society that is their adversary.

Yet rights should be recognized as part of the fabric comprising the common good. Political philosopher and Catholic theologian Martin Rhonheimer even describes protecting each other’s rights as part of “the common good of constitutional democracy.” The responsibility each member of society has toward it—the piety we owe to the public order as a whole—includes being vigilant for the common goods of individual rights that help it flourish.

The Second Amendment Protects Individual Rights to Further the Common Good

The Second Amendment provides an especially clear example in the American context. Its text refers to both the common good and the rights of the individual. “A well regulated Militia, being necessary to the security of a free State,” the provision reads, “the right of the people to keep and bear Arms, shall not be infringed.”

The Supreme Court’s landmark decision in District of Columbia v. Heller recognized that the Amendment contains its own social purpose and could be paraphrased as, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The purpose and the command run together, according to the Court: “Logic demands that there be a link between the stated purpose and the command.” And the Amendment’s original social purpose is clear—discouraging tyranny and, if need be, empowering resistance to it. The Second Amendment secures an individual right with a vital common good in mind.

If rights exist because they serve the common good, can the government override them whenever it decides that the common good requires doing so? That is the point Vermeule makes in the quote at the start of this essay. The answer is that constitutionally enshrining certain individual rights is a way of securing the common goods they provide by insulating them from the give-and-take of ordinary politics. Quoting Heller, “The very enumeration of the right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Such a result “is the very product of an interest-balancing by the people”—a social commitment of great significance and weight.

Individual Rights Generally Advance the common good

No other constitutional right so neatly sets out its social purpose. The First Amendment does not say anything about the value of free speech to the search for truth, nor of religion to civilization, nor of petitioning the government to official responsiveness. The Fourth Amendment is silent as to the importance of legal orderliness and privacy for the tenor of dignified and decent life together. The Eighth Amendment does not speak of what becomes of a society that inflicts gratuitous violence upon those of its members who have been convicted of crimes.

Of course, the patriots who enshrined those individual rights knew of the common goods they would promote. John Milton’s defense of free speech as an aid to social veracity, Areopagitica, had been in print for a century and a half. Fresher in mind for the American Founders would have been the King’s Bench’s decision in Entick v. Carrington, which was highly influential in setting out the common law’s protections against unreasonable searches. Lord Camden’s opinion referred to every individual’s right to private property as “sacred,” but also warned that illegal intrusions would “destroy all the comforts of society.” Even a right enjoyed by only a subset of the people could be defended in terms of social benefit. A decade before the Constitution banned cruel and unusual punishment, Thomas Jefferson wrote a crime bill that said too much use of the death penalty would “weaken the state by cutting off so many who, if reformed, might be restored sound members to society.”

Some modern thinkers continue to understand individual rights as common goods. Consider the response of French Catholic Pascal-Emmanuel Gobry to the terrorist attack in 2015 targeting an anticlerical satire magazine. “The Charlie Hebdo staff and I had diametrically opposed views on religion, philosophy, politics, economics—you name it.” Nevertheless, “an attack against people with whom I disagree on almost everything” is “an attack on my values, on what I believe in and cherish.” Gobry saw the killing of critics of his religion as an assault on a society based on the free expression of views, of heated-yet-peaceful discussion rather than a war of all against all. He understood that solidarity for the sake of individual rights is part of maintaining the common good. As theologian Aristotle Papanikolaou has written, it is a form of civic friendship—of social love.

Postliberals are right that an overly individualistic understanding of individual rights is embedded within contemporary thought. Much has been said about the foundation of modern rights in the Enlightenment anthropologies of John Locke and Thomas Hobbes, where lone people jealously hold onto or surrender rights as they exit primordial individualism into society. In these philosophies, individual rights sit over and against the common good. But rights as understood by Milton, Lord Camden, and Jefferson, and now by the likes of Rhonheimer, Gobry, Papanikolaou, and Scalia, also reflect deep understandings of the goods of society itself. They are indispensable parts of the social, communitarian dimensions of the American tradition just as they are of its more individualistic side.

The Viramontes Case Is a Chance for the Supreme Court to Further Explain How Individual Rights Further the Common Good

This term, the Supreme Court has an occasion for further articulating how the individual right protected by the Second Amendment supports the common good. In December, it will hear arguments in Viramontes v. Cook County, a challenge to bans on AR-15 semiautomatic rifles. The core dispute has been framed as whether AR-15s are better understood as civilian arms for self-defense or wartime weapons.

While self-defense is constitutionally protected and important, this is a false choice that neglects the Second Amendment’s own text. In a Cato Institute friend-of-the-court brief, we explain why small militia arms are no less at the center of the Second Amendment right than the pistols Heller protected. The broader point, though, is that the common good of the militia furthered by the Amendment is why it protects an individual right to keep and bear arms. Gun-rights supporters should not accept an oppositional framing of these two aspects of the Second Amendment’s text.

In this and other settings, libertarians and other proponents of liberty should respond to concerns about the common good not dismissively, but by demonstrating how inseparable individual rights are from it. The Heller decision, and hopefully the forthcoming one in Viramontes, show how.

Postliberals’ desire for a language of politics that recognizes common goods is sound, but their hostility to individual rights is not. They have assumed the same opposition between these two categories as the thinkers they oppose. The common good is distinct from individual rights, but they are an integral aspect of it.