Inventing Animal "Rights"

Tibor R. Machan

Among the truly bad guys in the Obama administration none can outdo Professor Cass Sunstein, now of Harvard Law School but earlier a colleague of Adjunct Professor Barack Obama at the University of Chicago School of Law. The really bad thing about Professor Sunstein is that he is championing one of the most reactionary and corrupt ideas in legal theory. This is that human rights are mere inventions of governments.

He and his co-author Stephen Holmes have argued, in The Cost of Rights, Why Liberty Depends on Taxes (1999), that, as they put it, “individual rights and freedoms depend fundamentally on vigorous state action” and “statelessness means rightlessness.” In other words, the idea here is exactly what the American Revolution was meant to refute, namely, that the government--king, czar, Caesar, or majority--grants citizens rights instead of securing the rights they have by virtue of their human nature. As Charter 08 of the Chinese (!) dissidents put it, "Human rights are not bestowed by a state. Every person is born with inherent rights to dignity and freedom. The government exists for the protection of the human rights of its citizens. The exercise of state power must be authorized by the people. The succession of political disasters in China’s recent history is a direct consequence of the ruling regime’s disregard for human rights." But Professor Sunstein rejects this and as a reward President Obama has appointed him, suitably, as the super administrator of all of the federal government's regulations.

Among the results of this development is that Professor Sunstein, who is apparently very fond of various animals, wants the government to grant animals rights, just the sort human beings have. And why not? After all, if rights depend on governments granting them, then whoever is the government is empowered to invent rights so long as the politicians and regulators will go along with this. There is really nothing very surprising about the idea since despite what the American Founders argued--having learned it from the English philosopher John Locke (who developed the theory of natural human rights)--American politicians, no less so than others around the globe, have been inventing "rights" all over the place.

Just now of course the most consequential of these inventions is the "right" to health care, health insurance, etc. The minimum wage was such a "right" invented earlier, as was the right to social security and to unemployment compensation. Indeed, this populist political idea has been around for quite a while and the U. S. Supreme Court has been declaring it constitutional despite the fact that it clearly is not. The entire edifice of entitlements that the American welfare state has concocted rests on this notion, that governments can simply cook up human rights and there need be no basis for them apart from that.

Of course, the cost of it all is enormous, which is one reason Professor Sunstein and his co-author were so eager to make the case for heavy taxation while denying that rights come from our human nature. Those rights, spoken of in the Declaration of Independence, are essentially negative--they spell out our sphere of liberty, not any entitlement to other people's labor and resources. That idea returns us to the time when people in a country were deemed to be subjects of the will of the monarch, essentially serfs, who can be forced to perform involuntary servitude never mind what they want to do with their lives.

And now come animal "rights," a phony notion of there ever was one. Animals are not moral agents and cannot have rights like human beings. One may have the responsibility to be humane to animals but not because of animal rights but because it would be cruel and mean to treat them badly without good reason. But for such reasons as medical research or feeding the hungry, animals may be used by people, just as may trees or fruits.

But if you don't like these niceties, sign up for the invented rights of the Obama team and see your freedom destroyed as a result in the name of what animals need from you, what they are entitled to.