Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktThe word “rights” has been used to describe both liberties and claims against others (including “entitlements”). We rebelled against a monarchy that made broad claims of entitlement for itself, and we had run away from established churches that made claims of entitlement for themselves. We understood the limits of government to require the establishment of liberties, and not entitlements, as a natural result of our seminal experience(s).
We have attempted to expand liberties and encroach on entitlements by increments, notably including the freeing of the slaves and the expansion of the voting franchise.
We have also created entitlements, most notably SS and Medicare. To the extent these were modeled on insurance schemes, they were either intended to, or disguised to appear to, create common quid pro quo legal claims. Common quid pro quo legal claims are often spoken of as “rights”, as well. When I provide you a legal service that you requested, typically I am “entitled” to be paid for it. Thus we have words with mixed usages and should be careful in this conversation to be clear.
I concede that a society could adopt a quid pro quo entitlement in which all were charged for a service through a tax and all were entitled to receive it upon reasonable demand. We have certainly done so in our nation’s history and I think we would find that all free countries have done so in modern times.
At this point in my monologue I pause to say that while I understand and can accept “entitlements” of various sorts, I do not place these on the same plane as liberties. I consider entitlements and claims to be less worthy than liberties, although we often permit entitlements to trump liberties. Life, liberty, and property can actually be taken by the state – with due process. The fact that Congress is “entitled” to tax, and the understanding that a government can levy taxes as an inherent power, limits our property rights. That Congress is “entitled” to call us to serve in time of war or national emergency limits our liberty rights. Examples abound.
Phrased in the rough manner that I have laid out, “liberties” and “entitlements” are always bound to be in conflict. I accept more in the way of “entitlements” than QB would and I may claim more in the way of “liberties” than he would, based on my reading of QB over time. But I would be just as adamant as he on the general proposition that “liberty” is the higher form of “right”, and while I am comfortable with calling many statutory claims “entitlements”, and many legal claims “claims of right”, I personally have reserved the word “rights” to describe our claims as citizens of a free state to life, liberty, and property. Recognizing that these rights are bounded and that we can choose to limit them in other ways by creating entitlements is linguistically clearer to me than trying to equate entitlements with liberties.
I believe the UN Declaration cited by Yjkt incorporates aspirations for a post WW2 world in ruins. It is an attempt to invoke the myth of Phoenix rising from the ashes. As such, it is beautiful. There is no form of government possible that could deliver on that entire Declaration because of the internal conflicts, and because of the fact of scarcity. It is better to preserve the liberty rights while attempting whatever limited aspirations we can afford, in the world of limited resources. Or so Mark opines.
I anticipate some here may argue that there are entitlements that are as important as liberty interests, and that some may argue that liberty interests must trump aspirations at every turn. That debate would be more productive than trying to call everything we might want a “right”.
Filed under: Constitution, rights theory |
All Things in Moderation 
Since it hasn’t been brought up, I find Roosevelt’s Second Bill of Rights speech to be a better written summation of the approach found in the U.N. Declaration, as well as the premise that they were necessary due to the fact that “the “political rights” guaranteed by the constitution and the Bill of Rights had “proved inadequate to assure us equality in the pursuit of happiness.”
As suggested by his framing of these positions as a Second Bill of Rights, in order to make them compatible with the existing Constitutional order, enactment via the amendment process should have been necessary for most, if not all of them. Instead he got the courts to do it with decisions such as Wickard v. Filburn.
http://en.wikipedia.org/wiki/Second_Bill_of_Rights
http://en.wikipedia.org/wiki/Wickard_v._Filburn
P.S. I forgot to complement Mark on a good post.
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Really excellent article, Mark. A great way to clarify the way these specific words are being used and in what context. This allows the ATiM community to do what it does best, parse meaning and argue about the definition of terms.
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jncp,
Thanks for the link to FDR’s Second Bill of Rights. It includes this:
That does provide some ahistorical context to the rather grandiose pronouncement by Nancy Pelosi I linked to previously.
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I guess I assume in discussions like this that most people are familiar with FDR’s Second Bill.
The failure of the Constitution to include such “rights” and the failure to institute them through the courts is exactly what Obama appeared to lament in 2001.
His friend and advisor Cass Sunstein is a prominent advocate of such rights. The name of his book escapes me. These are not obscure ideas. They are radical but are mainstream Democratic beliefs these days.
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I find that Roosevelt makes a much stronger argument for his position (no surprise) than most recent advocates, based on his experiences with Huey Long and Douglas MacArthur.
“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.”
I’d rather argue against the case in it’s strongest form than the weakest.
Also, here is a broader summation of the topic, along with a succinct summation of the counter arguments which those of us on the conservative/libertarian side have been making..
http://en.wikipedia.org/wiki/Three_generations_of_human_rights#Second-generation_human_rights
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I will have to read and comment more later, if I have time.
Entitlement rights are antithetical to “negative” or liberty rights, in my opinion.
Isaiah Berlin wrote a famous essay on two conceptions of liberty. Not necessarily precisely the same distinction, but a historically important essay.
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jnc4p,
Why do you find FDR’s argument stronger? I find it to be just an ipse dixit.
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ipse dixit? More likely a conclusion his audience shared after viewing the rise of Hitler in the aftermath of the crushing of the Weimar economy by post WWI reparations, or one the audience shared about Huey Long on the domestic front. Perhaps there is a background to this as jncp4 suggested. Any two sentence quote might be attacked as “ipse dixit”. I am going to read jncp4’s links before I chime in again. Perhaps after I read them I will think FDR’s points were an ipse dixit.
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“jnc4p,
Why do you find FDR’s argument stronger? I find it to be just an ipse dixit.”
His premise that you need a certain level of material prosperity for each citizen for republican government to work has more historical grounding than Nancy Pelosi’s random rhetoric. Note the citation in the Wikipedia article from the English Common Law case that Roosevelt quotes:
“necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose upon them.”
http://en.wikipedia.org/wiki/Vernon_v_Bethell
Now whether Roosevelt’s proposals are in fact in alignment with that premise is a separate question, but I think he’s a better advocate for his position than recent politicians.
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Mark:
Good post. I think, in the past, my distinction between moral/natural rights and legal rights is akin to your distinction between liberties and entitlements. Agreed?
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Scott, ever since law school I have been confused by “natural law” arguments, because it turns out there was not universality of opinion on what was “natural law”. I would not be surprised if we would align far closer to parallel than perpendicular about defining various liberties and claims. I really want to read jncp4’s links, but I actually have to work right now.
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“quarterback, on February 27, 2012 at 9:57 am said:
I will have to read and comment more later, if I have time.
Entitlement rights are antithetical to “negative” or liberty rights, in my opinion.
Isaiah Berlin wrote a famous essay on two conceptions of liberty. Not necessarily precisely the same distinction, but a historically important essay.”
Not just your opinion, but a long standing position that was often the province of the “classical liberals”
Here’s the link to the Wikipedia write up of your essay you cite:
http://en.wikipedia.org/wiki/Two_Concepts_of_Liberty
See also Frédéric Bastiat
“M. de Lamartine wrote me one day: “Your doctrine is only the half of my program; you have stopped at liberty; I go on to fraternity.” I answered him: “The second half of your program will destroy the first half.” And, in fact, it is quite impossible for me to separate the word “fraternity” from the word “voluntary.” It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.”
http://en.wikipedia.org/wiki/Frederic_Bastiat
But hey, you can just write it all off as part of being “greedy and uncompassionate”.
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jnc:
See also Frédéric Bastiat
Ah, he of the parable of the broken window. One of my favorites.
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Speaking of rights … The Archbishop of Chicago lays it out there regarding HHS sticking its nose where it doesn’t belong:
“The provision of health care should not demand “giving up” religious liberty. Liberty of religion is more than freedom of worship”
More:
Whole thing is worth a read. He notes that the cries have “separation of church and state” have it exactly backwards.
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Pope Benedict has also reiterated the Church’s position against in vitro fertilization and other fertility treatments, items often included in the current smörgåsbord of standard health care policies in the United States.
The ban on IVF is entirely consistent with the same precepts banning most forms of contraception but it does ironically put it in the position of demanding people who don’t want kids to have them while denying children to those who want them but can’t.
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yello:
Since the thread got moved, I just wanted to make sure you saw my last to you on the notion of health care as a right.
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So, outside of the context of a legal system, how does one claim this “right” to health care without being able to force someone else, against their will, to provide it?
You missed my point. Nobody is making doctors doing anything for free against their will. Most doctors I know don’t really care who pays the bill as long as it gets paid. This seems to be a philosophical dilemma which wouldn’t occur in real life.
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yello:
You missed my point.
No, I didn’t. But your point is irrelevant to mine.
Let’s try a different tack. A right is a moral sanction on individual action. That is to say, a person who has a right to X is sanctioned by morality to take action in order to establish and maintain X. And this sanction is independent of any law. So, for example, to say that a slave has a right to freedom is to say that a slave is sanctioned by morality to take action in order to establish and maintain his freedom. The action to which he has moral sanction is independent of any law governing the action. That is precisely what makes it a moral sanction rather than a legal one. So the slave’s right to freedom gives him moral sanction to, say, run away from his master, even if there is a law that says he can’t. The right, and the moral sanction, exists independent of any law.
So, with regard to this ostensible right to health care, what individual action is morally sanctioned by it? Is a person morally sanctioned to hold a gun to a doctor’s head in order to force the doctor to treat him? Is he morally sanctioned to steal money from his neighbor in order to pay the doctor to treat him? What action is the individual morally sanctioned to take in order to establish and maintain this alleged right?
This seems to be a philosophical dilemma which wouldn’t occur in real life.
If that were true, then there would be no need to create a law in order to establish and maintain this alleged right.
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Well, as usual, I don’t think I have much to add, but have learned quite a bit. So thanks for that.
I’ll just link to this story that seems to indicate that Pope Benedict views health care as being an “inalienable right.” Granted, I haven’t read his statement, so I don’t know if the reporting is accurate or not.
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Let’s try a different tack.
Let’s not. No amount of hectoring is going to convince to go along with your abstruse philosophical hypotheticals.
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yello:
Let’s not.
And here I thought you were being serious when you said “I would love to have a discussion about what is a right and what isn’t.”
No amount of hectoring…
Hectoring? Huh?
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This view makes no sense under any coherent understanding of a what human right can be. One cannot have a “right” to something that can only be supplied by the labor of another person.
As I said, one cannot have a “right” to something that can only be provided by the labor of another person. At least not in the context of that other person being equally free with equal rights, rather than a slave.
If one person has a “rightful” claim on the labor of a doctor to provide him with health care, then the doctor cannot be said to be rightfully free.
To say that a person has a natural/moral/human right to health care is to say that he has a moral claim on the services of whoever must provide it.
Since the thread got moved, I just wanted to make sure you saw my last to you on the notion of health care as a right.
But your point is irrelevant to mine. {snip} A right is a moral sanction on individual action. {long snip} The right, and the moral sanction, exists independent of any law. {more snip} So, with regard to this ostensible right to health care, what individual action is morally sanctioned by it? {yet another snip} What action is the individual morally sanctioned to take in order to establish and maintain this alleged right?
And here I thought you were being serious when you said “I would love to have a discussion about what is a right and what isn’t.”
I think by now I have a pretty good idea of what you think a ‘right’ is. As for the definition of ‘hector’, I think you can look that up yourself.
And no, I’m not angry or taking offense.
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yello:
I think by now I have a pretty good idea of what you think a ‘right’ is.
I’m glad. But I still have no idea what you think a right is. I know that you call certain things rights, but for reasons I have explained, I think there is an implied contradiction there. Hence my attempt to engage you in a discussion, and investigate your thinking about what a right is, a discussion that, based on what you said, I thought you would welcome.
In any event, if you don’t want to discuss your understanding of the concept “right”, do you at least agree that, under my understanding, health care could not be one?
As for the definition of ‘hector’, I think you can look that up yourself.
No need, I already know. And I remain at a loss as to why you would think I was hectoring you. For example, if saying “You missed my point” is not hectoring (and I don’t think it is), then I don’t understand why responding to it with “I do, but it’s just not relevant to my point” would be construed to be hectoring.
And no, I’m not angry or taking offense.
Good to know.
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