What Rights Do We Have?

David Boaz: Libertarians usually say that the fundamental purpose of government is to protect rights. How do we know what rights people have? Where do these rights come from? Well, I always think it’s a good idea to start with my little pocket copy of the Declaration of Independence, and I read, “We hold these truths to be self-​evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted.” That’s pretty good summary, possibly the most eloquent piece of libertarian writing in history. The purpose of government is to protect our rights, rights to life, liberty and the pursuit of happiness. Some people like John Locke would say life, liberty, and property. I tend to say the one fundamental human right is the right to live your life as you choose, so long as you respect the equal rights of others. Popularly, in America, we often say, “My right to swing my arm ends where your nose begins.” And that’s a pretty good basic understanding. I get to live my life however I want, as long as I’m not interfering on your equal right to live your life the way you want to. So it’s one right.

And communitarians sometimes complain, “Oh, we have too many rights in America.” Well, in essence, we only have one right, but that one right has infinite implications. James Wilson was a member of the constitutional convention. And when it was proposed to have a bill of rights, he said, “Enumerate all the rights of man, I am sure, sir, that no gentleman in the late convention would have tried to do such a thing, because after all, you have all sorts of rights. You have a right to wear a hat and not to wear a hat. You have a right to be a farmer or a haberdasher or a software engineer. You have a right to marry or not marry. We could never enumerate all of our rights.” Now obviously, the bill of rights tried to enumerate them in broad categories. But in some sense, if you look at the bill of rights, what they enumerated were the rights they were familiar with having been violated. And so you’re protected against having soldiers quartered in your house. Well, it’s not really something we worry much about, but they did back then. The right to bear arms, they understood, was a concern. The right to be secure in your papers, in your home, the right to free speech and freedom of religion and so on. So the one right to live your life as you choose, so long as you respect the equal of others, has all these implications. And we usually identify the rights we have when somebody tries to take them away. Who knew that we had a right to drink a 24-​ounce soda? It’s only when Mayor Bloomberg said, “I want to take away people’s rights to drink large sodas,” that we realized, well, that’s actually one of our rights.

So where do these rights come from? Well, libertarians don’t always agree on that. Some say they come from God, are God-​given rights, endowed by our Creator. Some say they come from nature. They are natural rights. Declaration of Independence finesses that a little bit at one point by saying, “Nature and Nature’s God,” whichever way, we’re covered. Some libertarians would say we know what rights we have because we can study the consequences of different systems of rights and the protection of rights. That’s the way a lot of economists would get to a conclusion that people should have these protections from government. Even if they might not call them rights, they would say we know the consequences of government intervening in our lives. Some (and particularly the founders would’ve been in this category) believe that we understand our rights from the study of history, Greek history, Roman history, the history of the Roman Empire, and the holy Roman Empire, and particularly the history of England. So we learned about what rights we have in that way. Modern libertarians might be most likely to say, “We are endowed with the power of reason, and we need to be able to use our reason in order to flourish as human beings. And therefore, we need a social system that allows us to use our reason to act, to cooperate with other people.” I think whether the libertarians believe the rights are God-​given, natural, or derived from introspection and reason, they agree on and believe that they are imprescriptible, i.e. no human agency prescribes our rights. They don’t come from the king. They don’t come from the Pope. They don’t come from parliament. They don’t even come from the constitution. A lot of people say the constitution gives me the right to do that. No, that’s not true. The constitution protects your right to do that, but you had that right before the constitution was written, and certainly before the bill of rights was written.

Are there limits to our rights? Well, one way to look at that is to go back to the principle, “Every person has the right to live his life as he chooses, so long as he does not interfere with the equal rights of others.” Well, the corollary of that right, my right, is no one has the right to initiate aggression against the person or property of anyone else. So the corollary of my having rights is that you have rights. One of the great old slogans and flags in American history is don’t tread on me. And that’s a good principle. Don’t tread on me or I will snap back at you like a rattlesnake. That’s what the flag said. The Students for Liberty have come up with a T-​shirt, a slogan, “Don’t tread on anyone.” That’s a good addition to the don’t tread on me idea. It’s not just about me. It’s not me, me, me. It’s not atomism and egoism, as a lot of our critics would say. It’s respecting everybody’s rights and understanding that the only way to protect my rights is to respect everybody’s rights.

Sometimes the libertarian view of rights is criticized for being merely negative. It’s negative rights. It’s negative liberty. That’s true in a sense, in the sense that it imposes only negative obligations on others, the duty not to aggress against anyone else. What does it mean that you have rights? It means I can’t hit you or take your stuff or violate you. Positive rights are something else. We usually think of positive rights as claiming that I have a right to education, I have a right to healthcare, or as I heard on the radio yesterday, I have a right to wheelchair accessible taxicabs. Those kinds of rights can only be achieved at the expense of someone else. If I have a right to an education, who has the obligation to supply me with the education? When I say that I have a right to my personal bodily security, that is a right that I have against you. You may not hit me. But when I say I have a right to an education, then I am saying you or you or some group of you have an obligation, not merely not to hit me but to supply me with an education. One of the problems with that is there are societies where it would be too poor for everybody to have an education or everybody to have a house or whatever. What does it mean to say in 19^th-century India everyone has a right to an air-​conditioned house? First they’re too poor for everybody to have a house, second there’s no air conditioning. And yet in modern times, you can certainly imagine people saying that every American has a right to a house with air conditioning. Doesn’t work universally, so it can’t be a universal right, and it requires other people to supply you with those rights. Ayn Rand said, “A right is a moral claim to a positive, the positive good of your freedom to act on your own judgment for your own goals by your own voluntary, uncoerced choice.” So in that sense, not saying that rights are not a positive thing. They are a positive claim to being left alone by others, to being allowed to flourish. The value of a system of rights is, first, it protects our freedom. Second, it tells us all what we can and cannot do. The nice thing about rights, and particularly property rights there, is it tells us what’s yours and what’s mine. And then we can go about our business. And we may make trades. I may sell my house to you. I may sell my land to you. I may sell you the right to live or rent to you the right to live in my house. All sorts of things we can do just once we have the simple rule that we do have these rights.

So many ways that government does not respect our rights, and that’s what libertarians tend to talk about. When we discuss rights in the modern context, we know what our rights are. They’re mostly protected by the constitution and in the bill of rights. And whenever government comes along and says we’re going to take some of your money because we think it’ll be good for other people or good for society, then we object to that abuse of rights. When government tells us that because of the color of your skin or your sexual orientation or your gender, we’re going to treat you this way, which is differently from the way we’re going to treat other people, that is a violation of our rights, and we resist that. When government orders us into the military with the Military Draft, or indeed into social work with the Universal National Service, we object to that intrusion on our rights, but we’re always going back to the idea of the fundamental human right to live your life the way you choose – so long as you are respecting the equal rights of other people to live their lives as they choose.