Tuesday, January 13, 2009

Rights as Basic Principles

Tibor R. Machan

The point of having a written constitution to which the administration of a country's legal system is firmly committed is to provide a framework of viable, just social life to all members of society who renounce violations of its principles. The American framers believed, in large measure, that the principles laid out in the Declaration should be fully represented in the country's constitution. These principles are referred to collectively as individual human rights. The Founders declared that these need to be held as self-evident, not something provisional, incidentally, temporary or otherwise less than fundamental in a legal system. In the U. S. Constitution these principles are mostly laid out in the Bill of Rights. As the grandfather of those principles, the philosopher John Locke, understood them, these rights are not grants of the government but based on an understanding of human nature, of what is most fundamental, basic, about being a human being. People are highly varied, multifaceted, diverse. But they also share some attributes by virtue of which they are indeed human, not other kinds of, beings.

Today a great many intellectuals are dedicated, sadly, to the demolition of this American legacy. They are very critical of the one political philosophy that fully affirms the ideas of the American Declaration and the Bill of Rights. They want to re-institute the idea that our rights are made up by governments and merely granted by them. They believe that our basic human rights may be revoked by some people, those in government, just exactly as monarchs used to believe that their preferred ideas are the principles by which a country should be governed. As, for example, one such advocate, Paul Fairfield insists--in his book Public/Private (Rowman & Littlefield, 2005)--over the last century our rights have come to be recognized as "thoroughly social in nature." As Fairfield put it, "Whereas classical liberalism had often conceived of [our] rights as presocial natural endowments of the individual, a less metaphysical conception of rights in general as social constructions emerged" more recently, one that "appropriately subordinates [these rights] to popular conceptions of social welfare..."

First, of course, the more recent conception Fairfield mentions is actually the older conception whereby monarchs, for example, granted rights. These heads of state were said to represent the popular conception of social welfare. Later, in democracies, the majority was often deemed, by various anti-Lockean political thinkers--such as Rousseau and Marx--as the source of human rights. And it is clear that such an idea is very far from what Locke argued and the American Founders insisted upon, in large part because they wanted to make the basic laws of society independent of the will of government administrators. (This is what is referred to by "the rule of law.") In short, Fairfield's idea is a reactionary one, by no means progressive.

The idea of basic human individual rights is meant to solve the problem of people being governed by principles, not by their fellows who have no authority to dictate to others how they ought to act, what is to be legal and what isn't. And that holds for property rights, too. Consider the idea of eminent domain which was to apply only to government's taking of private property for a bona fide public purposes, not for any special or private project, and with full compensation. Watering down the strict application of the eminent domain provision may well be something many in society desire--ones who believe they could do better things with other people's property then the owners are doing--but in a society governed by the rule of law that is impermissible.

Second, Fairfield makes much of the fact that Lockean individual rights may be said, somewhat contentiously, to be metaphysically conceived, all they were meant to have is a firm, stable foundation in something that is itself understood to be firm and stable, namely, human nature. That is, indeed, why slavery and serfdom are deemed to be morally objectionable and forbidden in a just society, not because of popular will! If that were all, any time advocates of slavery became a majority slavery would have to be judged OK. But that is absurd--such principles are not to be subject to the whim of anyone, kings of majorities.

The attack on basic rights is wrongheaded. It expresses an impatience of some citizens with the fact that they are blocked from conscripting others and the private property of others to purposes for which they could not obtain consent from them. Anyone aware of the New Deal should know this, given how President Roosevelt want to remove principled obstacles to his political program by stacking the U. S. Supreme Court the members of which adhered to principles with which he was very impatient.

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