Column on Rights as Basic Principles

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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