“The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “first comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematic violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.”
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Samizdata quote of the dayJuly 5th, 2012 |
 34 comments to Samizdata quote of the day |
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Should anyone doubt this – then just jeck the Ninth Amendment, which clearly accepts the doctrine that one’s rights do NOT come government.
Useful thing the Bill of Rights (even though James Madison did get the order messed up – for example the Ninth Amendment is actually the First Amendment and the Tenth Amendment is actually the Second Amendment).
Arguments within the text of the Constitution are solved by looking at the first ten Amenmdments (the Bill of Rights) which were intended to sort out these arguments.
For example……
Can the Federal government spend money on anything that is declares is for the “common defence and general welfare”, words uses at the start of Section Eight of Article One), or can the Federal government (the Congress) only spend money on the specific list of powers that are listed in Section Eight, Article One with the words “common defence and general welfare” being the PURPOSE of the specific powers – not some sort of catch-all “general welfare spending power”?
It would be very odd to list a long series of spending powers that the Congress can (if it wishes) exercise – if Congress couldt tax and spend on anything that is for the “general welfare”. Why list specific spending powers if Congress has a genera spendingl power? Still some people have claimed that the Congress is like the British Parliament and can spend money on anything – so the argument needs to be settled.
The argument is settled by the Bill of Rights – by the Tenth Amendment.
If the Federal government can spend money on anything it likes (imposing taxes to fund any spending it wishes to do) then the Tenth Amendment is meaningless.
Just as, if government is the source of rights, then the Ninth Amendment is meaningless.
Nor can one pick and choose between parts of the Bill of Rights.
One can not hold “I like freedom of speech” (the First Amendment – at least after Madison did his clerical mess up), “but I want the Federal government to be able to tax and spend on anything it wants to” (and so reject the Tenth Amendment).
The Bill of Rights stands or falls as a whole – one can not cherry pick it.
Humans are independent with rights from “nature” in any matter of doubt between the government (any level of government) and the freedom of indivdual the BURDEN OF PROOF is upon the government.
So, sorry, you can not hold down a women (who has committed no crime) and violently mutilate her – because you do not want this “inferior” women to have children.
“Buck V Bell” was decided WRONGLY – Pierce Butler being the only Justice to remember that “rights” are NOT the creation of the GOVERNMENT. The Ninth Amendement applies to the States as well as the Federal government (this the 14h Amendment makes clear).
And with the “Affordable Healthcare Act” the Federal government does NOT have the right to tax and spend on anything it wants to.
So the case last week was decided WRONGLY.
Otherwise the Tenth Amendment is meaningless.
And one has a government of “men not of laws” – with politicians being able to tax and spend as much as they like.
The United States would not have a limited government – it would have a PARLIAMENT not a CONGRESS.
If Congress can do anything (or, in practice, anything the Executive tells it to) then it is a PARLIMENT – like the British Parliament.
If that is so – then 1776 was a waste of time.
All very true, and about as welcome in Washington as a fart in an elevator. It gets in the way of maximizing the ‘product’ Democrats or Republicans can deliver to rent-seekers.
I don’t disagree with anything Paul said*, but going back to the Barnett quote everything hinges on the fundamental premise that rights preexist government. That’s an interesting conceit, and useful in its own way, but it’s highly questionable from a philosophical perspective. We’ve had that debate here before, at some length. Unless you postulate a superior power (i.e, a diety) as the source, there seems to be no satisfactory way of proving that asssertion.
* Well, a quibble about “Nor can one pick and choose between parts of the Bill of Rights.” We can and we did. There were originally 12 amendments proposed as the Bill of Rights: one (relating to apportionment) failed of ratification and one (relating to congressional pay raises) wasn’t ratified until 1992. But I agree with his sense that, once ratified, one shouldn’t be able to “pick and choose” among them. Except, of course, that the Supreme Court does seem to value some more highly than others.
Beautiful words, ideas that belong to the world, courtesy of 18th century Englishmen (they were Englishmen, at the beginning).
But the last three or four generations, and ours bears the heaviest guilt, have let them down. We can still recover, I hope, but the time is late.
It has been said the the U.S. is nation of immigrants. Not exactly, no. We are a nation of originals, settlers, immigrants, and post-Americans.
Originals–inhabitants who lived here prior to the arrival of the Settlers.
Settlers–Overwhelmingly English, or British, also Dutch and French and Spanish. Important group are the English (British), however, as they are the ones who set up the system with which we govern ourselves now. Ideas from English Enlightenment philosophers are the DNA of how we in North America govern ourselves.
Immigrants–People coming here after the Settler culture set things up. Many from cultures broadly similar to the English-based Settler culture, other not so much. What most people have in mind when using the overly broad-brush term, “a nation of immigrants”. I use the term “broad brush” because most people intend “a nation of immigrants” to include the English or British-based Settler culture. As I pointed out before, this is wrong. A distinction has to be made between the culture which set the conditions we live under now, and those who came along afterwards from cultures which had no significant input into the system’s creation.
Post-Americans–Trans-national secularists, Obama voters, Occupiers, commies, socialists, what have you–yuck and arrggh. Detestable parasites, eager to eradicate anything about our system which might be distinctive, or promote liberty. Those who vote for a living. The enemy to focus on as we try to recover our failing patrimony, failing because we have been careless and heedless of the consequences of the choices we have made over the past century. Find the nest, destroy the eggs.
That’s probably all the homebrewed sociological theorizing you can stand.
Not at all. Although I am not am Objectivist or even that big a fan of Rand generally (for reasons best not discussed in this thread) I do think Rand does an excellent job of explaining the objective basis of rights without recourse to any ‘superior powers’.
Well I think of myself as an anti-statist cosmopolitan secularist 😛
Exactly so, Mr Barnett.
And, thus, the intensity and ferocity of the collectivist attack on these ideas.
If inalienable rights are inherent in human nature, and I believe, with the founders, that they are, then it is only in their exercise that true human fulfillment is possible.
Not economic conditions, not ownership of productive resources, not some nebulous devotion to the common this or the public that, nor any of the myriad “folk” that everyone is urged to submerge their individuality in according to color, race, religion, or sexual preferences.
Life, liberty, and the pursuit of happiness—these are the expressions of a complete human being, the innate qualities of the free and independent mind that have brought us from famine, misery, and early death to the land flowing with milk and honey.
A free person lives. The slave only endures life while longing for the release of death.
Happy (belated) Independence Day to all.
Laird, why is it necessary to “prove” any assertion? You announce to the world that you believe that rights come before government, and create a system that takes that as a foundational position, then you maintain it. No other society, built on other foundational positions (perhaps even directly contradictory), will be able to prove its own principles either. Those who believe in deities will draw their own conclusions re a proof of that position, and those of us who are atheists will find our own justifications for it, or at least our own reasons to live “as if” there is a proof for that proposition.
Diplomad.
No, she really didn’t, Perry. She starts with the proposition that a man has a “right” to survive. “There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life.” (That’s from “The Virtue of Selfishness”, as quoted on the Ayn Rand Institute’s website.) But that in itself is merely an assumption. If you agree with her, then everything else follows naturally. But why do you have a “right” to survive? What is the source of that right? She never answers that; she simply takes it as an undeniable axiom.
Sorry, but it’s turtles all the way down.
Many, probably most of the Founders believed the mainstream Christian views which included at that time, the divine right of kings. To overcome this appeal by the Crown to Biblical authority without defying the Bible itself required an appeal to the Biblical doctrine that man was created in God’s image and therefore has certain characteristics that are “unalienable” from humanness. The Founders who did not personally accept this chain of provenance of rights (Jefferson, Franklin, Paine and perhaps many more) would still have found it a very useful basis for action. The phrasing “the Laws of Nature and of Nature’s God” allow a Natural Law interpretation of the document while not defying the religious one, but in any case “because we think so” would not have stood up in the face of a significant belief in divine right.
I agree with Perry that there is no need to resort to theology for a source for human rights, but there is a need to resort to values. I do not believe moral values are found in the laws of physics, which only determine material consequences of actions. Prioritizing those material consequences into a system of natural laws to govern human actions is a function of the human mind and of its creation of moral values in light of the laws of physics. There are many people who hold values I find abhorrent and whose actions violate my definition of “human“. Some of them do not even value life itself. The laws of physics do not prohibit certain values to humans any more than they prohibit certain values to jackals. It is my definition of “human” that those people are failing, not one contained in the laws of physics.
Rand says “If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. (A.S. p. 986, 1959 paperback)” Yes, if he values life, it is “right” for him to do those things, but regrettably not essential. Nature pretty obviously does not forbid the irrational or a great many animal species would be instantly extinct. Countless human populations have survived for long periods of time in total abrogation of those rights. What is “right” for a human is not the same as what is essential for reproduction and carrying on the species.
For this reason, I seek the alliance of people who share my values regardless of why they share them. I seek people who share my value of what it means to be human. My enemies, the people whose values I abhor, will never in any case accept “natural law” as I see it so stipulating it is a restriction that contains no ‘up’ side. Most of my friends believe in Natural Rights and I’m fine with that as long as they are the same natural rights that I value.
Laird, I haven’t the time to go into the Randian/neo-Aristotelian defence of rights here, but I think it goes like this: rights are a corrolary of the conditions that people need to survive and thrive – freedom. Rights are a recognition of the need for freedom from coercion from other people. If you start from what people need to survive and flourish, then you can derive rights from that, so Rand/others argue. You don’t need some other source, like a God. (I can see why some might once have thought that but I disagree).
I might add in more but I am cooking supper and hunger is now quite bad.
Jonathan, the underlying premise of Rand’s argument as you relay it, is that she values life above most other things and presumes that other people do as well. Problem is, that presumption has no basis in reality, as some people simply do not value life above (nearly) all else. Note, ‘value’ is the key word here – see Mid’s comment above for more. Oh, and bon appétit:-)
Alisa, if people don’t value life, including their own, then morality of any kind has no meaning for them. So the point is void.
How so, JP? Besides, these are not necessarily people who do not value life at all – only less than other things (like the “life” of their preferred collective, for example). And eve among individuals who value life very highly, there are many examples of those who value other things above life – including their own – such as honor or the life of their children.
‘individualists’, not ‘individuals’ – sorry. Rand’s heart was clearly in the right place, but her head less so.
Good one.
On the English/British:
Does all that really apply in the social order that has evolved with the membership of the past 60 or 70 years?
In the era of 1776 and during the Scottish Enlightenment leading up to that sufficient consensus to reject the absolute legislative authority of the “king in Parliament,” we find constant references to the essential requirement of the virtue of the citizenry. That virtue entailed (and continues to entail) the recognition, acceptance and performance of obligations; one of the principal forms being responsibility.
Rights, occurring in “Nature” exist only in those relations amongst humans and of humans with their surroundings. We do not observe them otherwise, regardless of the “order “ we may observe in Nature.
The “Rights” most often seen as “natural” in society are sustained by the mutual, reciprocal, obligations of its members to refrain from conduct detrimental to, or unwanted by, other members in their person, health, property, life, and pursuit of goals. Those Rights only exist to the extent that those conditions are met.
The past 70 years have seen a steady acceptance of, even desire to, transfer responsibilities from the individual to the collective; from government to secure rights (by enforcement of those basic reciprocal obligations) to governments providing entitlements that become the unilateral obligations of others to benefit the entitled, and thereby a government to create and allocate imposed obligations.
The government sought after 1776 is no longer, and has not been for the past 70 years the government sought by the members of our society as it has come to be comprised and organized by interests and objectives.
Few of the younger generations can articulate their obligations, as they would have been understood back in 1776 and for the next 150 years; other than to attain “their share” of what is good from our social order for themselves and their own. Rights are a ready recital; the obligations, once related to civic virtue, come at a stammer.
I have been rereeading Aristotle’s Nicomachean Ethics.
No that is not me showing off – it is a short work and well translated.
Sir William David Ross made some errors (such putting labour time into value – something Aristole himself does NOT do), but they have been corrected by Lesley Brown (it is the standard Oxford translation that I have read again).
Why do I bring this up?
Because Aristotle shows what Rand means by “man as man”.
The nature of man (of human beings) and what it means to be a “good” example of one is what the work is about – and it from the nature of man that Aristotle (in this and other works) derives his ethics and politics.
One can oppose (or modify) what Aristotle has to say – but one should still read it.
After all Aristotle is the source of where such traditions as diverse as the Roman Catholic Church and Randian atheists derive their ethical ideas from. And the differences are less important than the common foundations.
The idea that there whilst there are many competing positive codes of laws and customs – there is such a thing as human nature, and that one can derive objective measures of right and wrong from it – by which to judge those state laws.
John Locke (like so many Oxford men) was, at heart, an Aristotelian.
The world is objective and can be studied – not a realm of arbitrary fancy (laws-of-nature).
Human beings have a nature – there is such a thing as a good example of what it is to be a human and human flourishing.
Humans are BEINGS – they have the capacity to CHOOSE between right and wrong (which are real things – not just arbitary whims).
And so on.
All Aristotelian.
Aristotle gets many things wrong – but he gets the big things right.
By the way – the name.
Nicomachean Ethics – named after the editor, Aristotle’s son Nicomachus.
Yes Aristotle the evil slave owner.
Who freed all his slaves in his will (as George Washington did) and whose son and heir was by the slave Herpyllis.
Hey, the DoI was just a propaganda sheet! It was like the U.K’s ‘Bill of Rights’- nice ideas, but time and Parliament have over-ridden them. (As a non-Catholic Christian, I should have the right to bear arms in case a Catholic tries to assault me, but I don’t think that argument would bear much weight in modern Britain.)
What you really need is a mixture of a Declaration AND a Constitution, in one binding document! State a high ideal, and then how the government will be limited in such a way, and then state another ideal, and then another limit because of that ideal, etcetera. This combination could be called a Manifesto.
As for 1776 being a waste of time, or not- if americans feel that things are not as they should be, they can take up arms and change the government. 1776 proves that it can work, so why not again?
Of course, the real benefit for all was that the British finally listened to the arguments of the Americans and settled in Australia, so that English could have 2 continents to it’s name! Such altruism has not been forgotten!
Nuke: V14.3 is latest in a project on-going since 1995, knock yourself out.(Link)
JJM
Alisa:
“And eve among individuals”
Some typos are MORE equal.
🙂
Nuke Gray.
The Bill of Rights is not from the Declaration of Independence.
It is from the Constitution of the United States – indeed it is the first ten Amendments of the Constitution of the United States.
As for the British Bill of RIghts.
Only in IRELAND (not united under the British Parliament till 1801) were there laws against Roman Catholics owning firearms (laws that were actually repealed in the late 1700s).
In Britain (first England and Wales and then, from 1707 Scotland) it was assumed that the mention of word “Protestant” did not exclude members of any other religion from the ownership of firearms.
The word “Protestant” is explicitly used – because Protestants were under threat (it is preamble type language).
Only a few years before Louis XIV (the Sun King) had tried to WIPE OUT (convert, kill or drive out) all Protestants in France.
No one seriously suggested that Roman Catholics were under threat of genocide.
Still you make a valuable point.
A PARLIAMENT can wipe out rights – at least a Blackstone style Parliament can.
A CONGRESS has no such power.
PMO-
Oh yes it does unless constrained.
If the Constitutional constraints fail, then they must be furnished by the citizenry.
Otherwise that power will be exercised – increasingly.
Human fulfilment is possible, but one must be realistic and accept it is unlikely.
Much of societies problems actually stem from the overbearing, creepy control-freak mother, rather than the absent one.
Overbearing parents do far more damage than absent ones, so it is with governments. Like the depressingly numerous parasitic, disgusting “forever mums” who socially isolate their sons (for sexual motives) and daughters (jealousy) at huge cost to wider society, our politicians promise jam tomorrow, conspiring to imprison the young, just as mothers do.
One should enter the adult world in one’s teens, but the mothers have made childhood permanent for their own selfish desires. We see this social trend all around us.
And, our youth should certainly not have to finance the Baby Boomers extravagant lifestyles. Money is being taken from the young and funnelled to the greedy Boomers.
The young are being made into Soylent Green for the arrogant old Boomers. It is obscene.
Mothers, Boomers, Politicians…they are the parasites who have bought us here.
The above is possibly the most demented comment I have ever read here.
Out with the mothers!
Maybe mendicant comes from a future society like that in ‘Brave New World’- where humans are grown in decanters! As a time-tourist, he might find our customs quaint. If we’re nice to him/her/it, we might learn about what happens in December 2012!
I think I will leave the Mums-sex-with-sons comment.
RRS.
Yes – no Constitution can stand if most people do not stand with it.
democrats (small “d”) have to explain such elections as that of 1936.
A moderate Republican (Governor Alfred Landon of Kansas) lost 60% – 40% to a man (Franklin Roosevelt) who had just spent four years using the Constitution of the United States as toilet paper.
It is hard not to escape the conclusion that the people of the United States were put to the test – and FAILED that test.
I sense that the post @ 10:28 a m is PM and not the PMO.
So, I dare express a different take on public tenor in the
U S, in 1936 when I was a very cognizant age 12 in 8th grade; which was then a not uncommon stage of maturation. Of course none of us really knew as much as we thought we knew, but we did think about such things (not likely in the same age group today?). We now seem to provide more time for maturation.
My take, and I do constantly look back on that period (1930-39), is that there were errors of choices, not “failure” of mature considerations. [disclosure; home environment, mid-western parents- in the “Old South” – was extremely anti-Roosevelt].
From memory of the communications of the time, the backgrounds of the active electorates, the different “pace” of things, I have retained a different view of what shaped choices.
As you know RRS….. (I keep forgetting you were there at the time – I am self obsessed middle aged man, should I reach the maturity of old age I hope I have your objectivity).
The two States that voted against Franklin Roosevelt in 1936 were Vermont (which always voted for Republicans in those days – the take over by New Yorkers had not yet happened) and Maine (which had voted for Roosevelt as SMALL GOVERNMENT candidate in 1932).
Both of these States were (and are) in the extreme North East of the United States, and very rural.
I wonder how many rural people had radios (the main source of pro “FDR” propaganda) in the exterme northeast in 1936.
Or perhaps the local radio stations were different from the mainstream.
Of course the main “anti Roosevelt” person on mainstream radio stations in 1936 was Father C.
He had been pro New Deal – but by 1936 he was denouncing Roosevelt as too moderate and pushing his publication “Social Justice”.
People who agreed with Father C. were hardly likely to go out vote Republican.
This is how the mainstream con worked.
“What do you mean we do not allow dissent on this radio stations – we have Father C..”
The Roosevelt regime was the first to use the FCC as a political weapon.