Right of Way

Gene hits the nail on the head. Extending FDR's legal philosophy to its rightful (pun intended) conclusion leads to life-hatred, a conclusion that welfare-state policy in his wake has reinforced again and again. But this really begs a more thorny question--one both sides have yet to address sufficiently--of whether rights talk has any meaning in the first place.

Historically, the idea of every man being born with inalienable rights is relatively recent. Gene points out that our Constitution, their foremost guarantor, could not exist if man's inalienable rights did not predate it. If rights did not exist prior to the state, it would not make sense to design a state whose citizens reserve the prerogative to revolt any time their rights are not being protected. But it is interesting that pre-Enlightenment thinkers, though they lacked rights rhetoric, sought many of the same values--the pursuit of happiness in particular--as those the Constitution seeks to uphold. Man has always striven to discover how to lead the Good Life, and, the occasional anarchist aside, has looked to the state to help him do so. Though democracy certainly has its share of imperfections, most people would agree that once rights talk was introduced, the search for the Good Life met with greater success than ever before. Every capitalism aficionado has seen graph after countless graph showing that the increases in individual liberty unique to representative democracy consistently improve quality of life: life expectancy goes up, medical care improves, and access to luxuries increases in direct correlation with expansions of freedom in society.

What is so special, then, about the seemingly-arbitrary three rights that the Framers chose to protect? Locke said all men are entitled to "life, liberty, and property," and Madison echoed him in the Constitution. This was partially inconsistent with the Declaration of Independence, however, in which Jefferson had used "property" instead of "the pursuit of happpiness." These choices seem haphazard.

One illustrative example of the confusion that rights-talk causes is that the government reserves the right to resolve property rights when ownership is ambiguous. Ronald Coase [scroll to "A Comparative Example"] pointed out that if a laundromat and a factory operate on the same street and the factory's pollution causes the laundromat to lose $1000 of sales every year, the laundromat can appeal to the government and ask the state legitimately to repeal the factory's right to operate on that street, thus depriving it of its property because of the other party's complaint. Moreover, Coase stated that it did not really matter in whose favor the state resolves the dispute between the laundromat and the factory, because the individual property owners would resolve the dispute via voluntary exchange of rights to operate. If they are thus transferable, property rights are not actually inalienable, and even if they are, we treat them inconsistently.

Do we just shrug our shoulders at this point and sigh that human relations are complex and our justice system is imperfect? Or can we find resolution by sorting through the jungle of rights speak that plagues post-Enlightenment politics?

No one can blame politicians for failing to try. Conservatives argue that the right to life extends to protect private gun ownership, national defense, and the illegitimacy of aborting the lives of unborn children. Liberals stretch the rubber band of rights-talk even further, throwing into their political grab-bag every American's right to adequate healthcare, a college education, gourmet cuisine, middle-class wages, and a whole host of other pragmatic goodies. Where do we draw the line, and upon what principle?

It seems logical to turn to our founding documents for the answers, but they, too, provide no comfort. Why is there no agreement between the Constitution and Declaration of Independence on the right to property? One answer is that the Declaration is not a legally-binding document. Again, this begs the question. If rights predate the state and have their origin in our very humanity, why is it that we still cannot agree on what they are?

I contend that either we turn to God as ultimate guarantor of these rights (but why does He guarantee *these* rights in particular?) or we must abandon rights theory altogether and seek something more fundamental.