Rights and Non-Rights: A Simple Way to Distinguish the Two
“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.” George Mason, in the Virginia Declaration of Rights (1776)
As an Attorney, I often hear that it is my RIGHT to do… or it is my RIGHT not to do…. Many times people believe it is also their RIGHT to have… or that someone else does not have the RIGHT to have…. Clearly, not every want is a RIGHT, but is every need a RIGHT? Can you have a RIGHT to an item, but limit another’s RIGHTS to another item? Where do these RIGHTS that lay as the premise upon which law surrounds come from?
“Rights” are in the news these days perhaps as much as they were in George Mason’s time. As a score of politicians announce their 2020 campaigns for President of the United States, we can expect “rights” to be in the news every day, as they are promised to us one after another. “You have a right” to this or that and “If elected, I’ll make sure you get it” will soon be monotonous refrains.
Despite the centrality of rights in American history, it’s readily apparent today that Americans are of widely different views on what a right is, how many we have, where rights come from, or why we have any in the first place.
Does a document create rights, or do such paper instruments simply acknowledge rights that people inherently possess?
You have a right to:
- Your life (unless compromised by taking or attempting to take that of another person without a self-defense justification);
- Your thoughts;
- Your speech (which is really a verbal or written expression of #2) so long as you don’t steal it from another without permission or credit;
- Material property you were freely given, that you created yourself, or that you freely traded for;
- Raise and educate your children as you see fit;
- Provide the health care you deem your children would benefit from;
- Live in peace and freedom so long as you do not threaten the peace and freedom of others.
You do not have a right to:
- High-speed broadband Internet access;
- Cheeseburgers, cheap wine (or even expensive wine, for that matter), or an iPhone;
- Somebody else’s house, car, boat, income, business, or bank account;
- The labor of another person you’ve not freely contracted with (you can’t enslave somebody, in other words);
- Medical care from a witch doctor or a skilled surgeon or anybody in between;
- Taxpayer-funded (i.e., coercively-appropriated) child daycare, college education, contraceptives, colonoscopies, or sports stadiums;
- Anything that’s not yours, even though you really, really want it and think you’re entitled to it;
- Conscript other people’s children into schools you think they should attend;
- Free stuff in general, unless the rightful owner chooses to offer it;
- Anything a politician flattered you with by claiming you have a right to it.
Positive vs. Negative Rights
The first list comprises what are often called both “natural rights” and “negative rights”—natural because they derive from our essential nature as unique, sensate individuals and negative because they don’t impose obligations on others beyond a commitment to not violate them. The items in the second are called “positive rights” because others must give them to you or be coerced into doing so if they decline.
General philosophical thought states that “Positive rights” trump freedom. According to this doctrine, human beings by nature owe, as a matter of enforceable obligation, part or even all of their lives to other persons. Generosity and charity thus cannot be left to individual conscience. If people have such positive rights, no one can be justified in refusing service to others; one may be conscripted to serve regardless of one’s own choices and goals.
If positive rights are valid, then negative rights cannot be, for the two are mutually contradictory.
The existence of “negative rights, means that no one ought to enslave another, coerce another, or deprive another of his property; and that each of us may properly resist such conduct when others engage in it.”
The Constitution’s Role in Rights
What about “constitutional rights,” a phrase we hear from people on all sides of the political spectrum? I like what Michael Badnarik said about them in his 2004 book, Good to be King:
People are usually surprised to discover that I hate the phrase “constitutional rights.” I hate the phrase because it is terribly misleading. Most of the people who say it or hear it have the impression that the Constitution “grants” them their rights. Nothing could be further from the truth. Strictly speaking, it is the Bill of Rights that enumerates our rights, but none of our founding documents bestow anything on you at all […] The government can burn the Constitution and shred the Bill of Rights, but those actions wouldn’t have the slightest effect on the rights you’ve always had.
The concept of a Democracy, a Republic, or a free society is that your RIGHTS are bestowed upon you from your creation, not by the governing power. It does not matter if it is Republican or Democrat, it is merely the role of the Government to document the RIGHTS you already have, but they have no authority to strip the RIGHTS of any man, women, or child so long as they do not impede the rights of another.
Lawyers protect those RIGHTS you have from those that tend to believe they have the power to create or remove RIGHTS? If you believe your RIGHTS are ever violated please let us know.