August 05, 2004

The Distinction Between Natural Rights and Civil Rights

Americans hear the phrase civil rights all the time, and we have a vague conception of what it means, mostly informed by the vernacular use. The vernacular use is most commonly related to Jim Crow, black people and voting. That's how we think of the phrase civil rights, as the fight by MLK and others to recognize the personhood and worth of black people - and therefore their rights to the same privileges and immunities as other Americans. When we hear the phrase civil liberties, we think of school prayer, the Ten Commandments, and the ACLU.

While these are both apt uses of the terms, neither is complete. So let's figure out just what civil rights are.

Rights are legal constructions -often constitutionally guaranteed devices- to secure the liberty of individuals. A right is something a person or entity may do regardless of the opinions or interferences of others. Liberty is the general concept "one can do what one wishes." A right is the specific, usually formal guarantee of liberty. So we have the liberty to speak our mind and express our opinions, and therefore we have the first amendment right to free speech. For practical purposes, the words right, liberty and freedom are essentially interchangeable - at least in this country.

What isn't interchangeable is the adjective; there is a big difference between civil rights and natural rights. A civil rights exists in civil society, thus the prefix. A natural right exists in the state of nature, which pre-exists civil society. The state of nature is a hypothetical concept used prominently by Enlightenment thinkers in Europe and the US in order to separate themselves from the current regimes and envision the ideal political order. Simply put, the state of nature doesn't hve to exist, it's a theoretical concept to test human nature and to understand the purpose and workings of government. It's actually a wonderful concept that's out of practice today - largely because the classical liberals were proven correct and there's little need for political philosophers to challenge their larger ideas.

So what's important here is the idea of stemming from government and pre-existing government. Civil rights comes from government, natural rights pre-exist government. This is hard for many people to grasp, who see rights as legal protections (and sometimes obstacles) to work around. They don't understand how rights can exist without a government to enforce them. Simple. They exist, whether or not you recognize them. Just as it's wrong to lie even if it's not enforceable by law, it's wrong to violate a natural right even if it's not enforceable by law. This very basic concept escapes many people (usually authoritarians, surprise) so anyone who gets it should be happy.

Most civil rights in America are based on natural rights, but more and more there's talk of various other, newer rights being adopted - many of which are NOT natural rights.

Free health care is not a natural right, because it could not exist without a state to organize it. What would the equivalent be in the state of nature? It would be the right to walk up to anybody and expect their money or their services as doctors. Since very few people are socialists or communists, and even socialists aren't happy with that thought, this is not what people mean. What they do mean is arranging for the government to pay for health care. It's not a natural right except perhaps in a literally communist vision, anything short of that and it's simply a civil right. To me, this means it's artificial, it's not a real, ethical-moral right, it's just another welfare program. The only difference is a bunch of lazy idiots and anti-market, anti-property types don't know what a right is.

Voting is also not a natural right, since there is no government to elect in the state of nature. It is, however, an extremely important CIVIL right, but we should be clear that it's not a natural right.

Now, appropriately, what IS a natural right? Well, anything! Okay, not anything, but anything that does not violate the rights of others, so anything not initiating force or fraud on others is literally your natural liberty. So in this sense, you have a right to anything from free speech to drinking a warm Diet Coke. To be a natural right, it must be consensual toward others. This does not mean it's individual, since some of the most important rights are interpersonal: commerce, speech, relationships, etc. These are all based on the consent of others. Voting and mandatory welfare are not dependent on the consent of others - you can vote and receive welfare without the consent of your fellow voters or those who pay taxes to your program.

So how can we turn this newfound knowledge into policy? Simple: enforce the Ninth Amendment.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

They included the Ninth because of arguments at the time that including a bill of rights would suggest that unlisted rights weren't important. Those opposed to a bill of rights said there should be none at all because 1) we could never list all the rights, and 2) listing some would be like an open door to infringe the unlisted ones. So the supporters came up with this simple line to have a bill of rights without weakening unlisted rights. Unfortunately, it did happen that unlisted rights have been infringed. Of course, even the listed rights aren't ironclad in this legal system, but they do okay next to the unlisted ones.

How can we do the Framers' intent justice here? How can we listen to the Ninth Amendment? Step one is to reinstate the presumption of liberty - the freedom-related counterpart the presumption of innocence. Just as we assume a person is innocent until proven guilty, we should assume that a law or act of government is inappropriate until explicitly authorized by the Constitution. The presumption of liberty is assuming that individuals are free to do what they want unless a law is constitutionally established, and assuming that all laws are unconstitutional until proven otherwise.

Step two is to pass a new constitutional amendment, a Liberty Amendment, codifying explicitly what the Framers wrote implicitly:

"The right of citizens of the United States, who are eighteen years of age or older, to perform or refuse to perform any action shall not be denied or abridged by the United States or by any State, except in cases of force, fraud or treason, and notwithstanding the legally assumed obligations of contracts. This article shall not apply to employees, officers, soldiers or detainees of the United States or the several states."

I'm still working on the wordage, but I think it's a pretty good libertarian amendment. I tried to include the bigger exemptions, but it has some problems - like the fact that enforcing the 16th Amendment would be unconstitutional. :) Anyway, this is the full recognition of our natural rights. Before that, the least we can do is return to the presumption of liberty and the presumption of unconstitutionality.


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