Liberals and conservatives both make use of the concept of rights. Conservatives advocate for citizens to learn their rights, like the protection against unwarranted search and seizure, freedom of speech or other limits. Sometimes they reference rights that exist via the absence of a law. An example of this later type would be the New Hampshire right to open carry because such action is not prohibited by any law. For a conservative, rights are usually referenced as limits on the powers of government.
Liberals tend to sing a different tune when it comes to rights. Arguably the most famous is the UN's Universal Declaration of Human Rights. While the document contains many of the same fundamental rights expressed in American government (The Declaration of Independence and the U.S. Constitution), it also mentions the rights to "rest and leisure," "periodic holidays with pay," and education, among others. Besides some notable exceptions, the rights that liberals talk about usually only exist if the government regulates them, such as the examples I have listed above, and call for greater government intervention in the lives of citizens.
So which side is right? What is the role of government in our rights?
The short answer is that neither side is correct and that our rights cannot be so easily generalized in terms of government action. To begin to understand why, let us look at the foundations of rights in our government.
American government, and in turn the American perception of rights, is largely expressed by the Declaration of Independence, which I briefly break down in this article here. Most importantly, the opening of the document discusses the inherent rights of mankind, those rights that everyone, regardless of country or government, possess. The Declaration also specifically states that the purpose of government is to protect those rights. These ideas are founded on the philosophy of John Locke, largely his Second Treatise of Government. Below, I will analyze the work of Locke because it is the grounds of the Declaration.
Locke's argument begins logically, though not necessarily chronologically, from the idea of man in a state of nature. In his Treatise, Locke describes this as follows: "The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in life, health, liberty, or possessions."
Of Locke's list, liberty deserves special attention because it is often misused. Properly defined, liberty is the ability to act without the influence of authority. It is not, as some will lead you to believe, the ability to do whatever one wants. The former definition maintains that limits are still imposed by human nature and the human body and mind. In the latter, these limits must be overcome by government influence. So when former President Roosevelt stated, in his "Second Bill of Rights," that "necessitous men are not free men" (meaning that economic security is necessary for freedom), he was referring to this second, incorrect definition.
Locke's rights are those that Jefferson would later call "unalienable" and part of a "self-evident" truth. They are the only rights that exist outside of government. But, as Locke argues, humans are often incapable of following a natural law without enforcement because they are often swept up by passion, greed, or other strong emotions. So men must unite into societies where each member gives up his ability to exercise judgement and retribution against his fellow man, and all members collectively exercise governing power while maintaining an emphasis on preserving individual rights. This is not to be confused with the "people's power" arguments used by advocates of Socialism or Communism, who argue for collective rule at the expense of individual rights.
But, as Locke points out, submitting to the rule of a society requires a partial loss in liberty and some loss in property. A man joining such a society relinquishes his liberty to personally execute justice, among other things, and he relinquishes his property in order to fund his protection. In such a society, he must submit to the just rule of the majority, including legislative, executive, and judicial powers, and he has "given a right to the commonwealth to employ his force, for the execution of the judgments of the commonwealth."
This might sound dangerous, but remember that the purpose of such a society is to protect property, so members will seek to create a government that benefits them the most. As Locke writes, "he seeks out, and is wiling to join in society with others...for the mutual preservation of their lives, liberties, and estates, which I call by the general name, property." Additionally, he says, "The great and chief end, therefore, of men's uniting into commonwealths...is the preservation of property."
Thus, it becomes clear that government should only do what is necessary to ensure property (remember that "property" includes life, liberty, pursuit of happiness, etc.); anything more would be a useless sacrifice of further property with little to no gain.
The principles of equal protection and just enforcement naturally arise from this view of the purpose of government. I won't show the rationale here, but it is straightforward enough — simply consider what happens when some are favored by the law, like the aristocrats were in England during the American Revolution.
Furthermore, the law must be designed ultimately for the good of the people, or in other words, for the best collective protection of their inherent rights without sacrificing the rights of any individual members.
And finally, the legislative power must reside in the people or in their representatives and, according to Locke, "The legislative neither must nor can transfer the power of making laws to anybody else." Those joining a society for the protection of their inherent rights should logically be the only ones making the laws that will impact their rights.
The above three points mark the biggest legislative rights that result from the original purposes of government. In order for government to protect inherent rights, Locke argues that such legislative rights are necessary.
Equally fundamental is the right to overthrow and reinstitute any government that fails in its purpose (protection of inherent rights). This right allows the people to ensure that the government maintains the purpose for which it was originally designed. The people must hold the ultimate power over their government, revolution, if their rights are to remain protected.
Now, digging into the details of our American government and logically extending the principles of Locke, it becomes apparent that pure majority rule with the equal protection of the laws is only the foundation of a just government. As I describe in Direct Democracy, legislation by representation is also required to preserve the inherent rights of the minority. But beyond that, there need to be clear limits on government power to limit the law to those things that protect the inherent rights of the people. Thus, the government establishes civil rights, better termed civil liberties, which consist of various limits on government power.
Whereas government actively protects inherent rights, such as preventing murders and theft or outlawing slavery, civil liberties are best described as the areas in which the government has no power over the people. Examples of this are most famously found in the Bill of Rights, both stated, like the Second Amendment, and implied, like the liberties included in the Tenth Amendment. And beyond civil liberties, the American Federal government establishes both a system of jurisdiction and a system of separate powers. There are certainly many other structural aspects to our government that limit its power, but they are not essential to the discussion; the main point is that such limits have been established.
You might say, But this is all very abstract, and you would be right. The ideas expressed here are those that the Founders debated and struggled to implement in government, but how does this all affect you and me?
Remember those liberal rights that I introduced earlier? The rights to "rest and leisure," "periodic holidays with pay," and education, and so on. Notice that these all require government action to achieve. The first two call for regulation on work and the third on schools. So they cannot be civil rights, limits on government power. So the only other option is that they must exist to secure inherent rights, but is that what they actually do?
Well, to address that, we must ask: what are the inherent rights? They are rights that exist in a state of nature or, in other words, in a state of anarchy. Some such examples are the rights to self-protection, liberty, property, life and the pursuit of happiness; government influence must ultimately serve to protect these. One can clearly see that the rights to "rest and leisure," "periodic holidays with pay" and education are not designed to protect inherent rights. In fact they infringe on liberty, the ability to conduct oneself without the influence of authority, without providing any other protection.
Under this framework, any call to government intervention must be proven necessary for the protection of inherent rights. This idea of inherent rights and Locke's philosophy provide us with a framework of analyzing the actions of our government, including the scope of its power. Under this framework, any call to further government intervention must be shown to be necessary to protect inherent rights. These Progressive rights that I list are calls to increase government power for purposes foreign to the government, and in most cases, these "rights" are likely means of achieving other political goals.
If we think about government from the view that it is a means of protecting inherent rights, then those who have "invested" in this government have a right to a legally equal voice, and any means that takes the voice away from the people is unjust under Locke's idea of government.
There are obvious examples of intrusion upon this principle in President Obama's actions, including his two amnesty executive orders, both of which marked massive executive intrusion into the lawmaking process. This undermines the principles of self government and the right to a legally equal voice in government. And such action is not just limited to the current President. Just about every recent President has committed violations of the principles of Separation of Powers, and we should oppose them all, regardless of our own wishes and desires, with the notable exception of unilateral action in a time of crisis.
There are several other intrusions: oft overlooked are the numerous executive agencies, some of which posses all three types of power: legislative, executive, and judicial. Often times, these agencies, once created, have limited oversight by either the President or Congress, and the Judiciary has, through precedent, affirmed their power to make law in areas not covered by Congress. In the words of President Harry Truman: “I thought I was the President, but when it comes to these bureaucrats, I can’t do a damn thing.” And finally, there is the power of the UN over America, which also robs the people of their legislative power.
Finally, I would like to turn your attention to the Progressive* interpretation of government as the vehicle of achieving absolute equality in a population beyond the Lockean protections already achieved. Through this interpretation, the government is used as a means of overcoming the physical and mental limitations of an individual through intervention, a practice typically misrepresented as a means of expanding liberty.
However, the government is not a great giver of gifts but rather a great redistributor of gifts, and the gain in ability for one party results in a loss of liberty for another party. An example of this is the Civil Rights Act of 1964 which, while making many necessary changes to achieve a more colorblind government, also targeted private businesses and mandated equal employment based on race. Government action expanded the abilities of American citizens by expanding employment opportunities — but at the expense of business owners' liberty to freely choose their employees.
John Adams spoke very clearly about this idea of equality in his "Discourses on Davila," saying, “among men, all are subject by nature to equal laws of morality, and in society have a right to equal laws for their government, yet no two men are perfectly equal in person, property, understanding, activity, and virtue — or ever can be made so by any power less than that which created them.” Adams promotes equality of rights but not equality in outcome. Once government starts down the path of equality in outcome, the civil rights of more advantageous groups are undermined and possibly even taken away, such as what the Civil Rights Act of 1964 did to private businesses.
Of course, this conversation is far from over, and I have made no attempt to prove that Lockean philosophy should be the basis of government, which deserves its own article. I merely present the philosophical basis that the Founders used to create the American government. Also, it is important to note that I am not arguing for the legal authority of Lockean interpretation but rather that it is something that we the people can use to determine if government actions are in our best interests and thereby determine what steps we should take. Nonetheless, many of these ideals can be legally interpreted from our Constitution, as I hinted in some of the paragraphs above. To conclude, in this modern era, having knowledge of these ideals and their position in American history is very beneficial when so many are ideologically opposed to them and desire to model government in ways that are often foreign to them.
*I hate the term "Progressive" because its extremely misleading, but I use it because of common practice.
