Of Rights - Natural and Arbitrary; C. Carson

OF NATURAL RIGHTSAND ARBITRARY tg Clarence B. Car60n THE NUMBER of rights to which Americans are entitled appears to be increasing rapidly. Almost any current magazine or newspaper is apt to carry mention-some times casually-of some new right. They run the gamut from the right of workers to "toilet time" to the right of all adult citizens to vote. The establishment of these rights does not seem to require a constitutional conven tion or even a court order. Some of them may, for ought I know, be promulgated by cub reporters. They derive in spirit, for the most part, from an "Economic Bill of Righ ts" set forth by President Franklin D. Roosevelt in his Annual Message to Congress in 1944. He said, in part: "In our day these economic truths have become ac cepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all-regardless of station, race, or creed.

"Among these are: 340 OF RIGHTS-NATURAL AND ARBITRARY 341 "The right to a useful and remunerative job in the in dustries or shops or farms or mines of the nation; "The right to earn enough to provide adequate food and clothing and recreation; "The right of every farmer to raise and sell his prod ucts at a return which will give him and his family a decent living; "The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair compe tition and domination by monopolies at home or abroad; "The right of every family to a decent home: "The right to adequate medical care and the opportu nity to achieve and enjoy good health; "The right to adequate protection from the economic fears of old age, sickness, accident and unemployment; "The right to a good education."l At the risk of being labeled an ingrate for looking a gift horse in the mouth, I have some questions about this accretion of rights. Does the apparent "gift horse"

carry a concealed price tag? Can rights be established at will? Are there any limitations upon what may be claimed as a right? What are the foundations and sources of these rights? To answer these questions we must delve into the nature and history of rights. A right, according to the American College Dictionary) is "a just claim or title, whether legal, prescriptive, or moral." More, it is "that which is due to anyone by just claim." As an adjective, right is correctly used when 1 Franklin D. Roosevelt, Nothing To Fear, edited by Ben D. Zevin (New York: Popular Library, 1961, copyright 1946), p. 406.

342 CLARENCE B. CARSON it is "in conformity with fact, reason, or some standard or principle." A right, then, is something to which one is entitled, and it must be founded upon reality, reason, or principles. This definition can only serve as an ab stract guide; the abstractions must be given content be fore they will serve to dis tinguish between true and false claims to rights. This can be done by referring to the history of American claims to rights. Traditional Rights To lay claim to certain rights is in keeping with American tradition. To hold that some rights should be inviolable has precedents antedating the Declaration of Independence, for the Rights of Englishmen were rec ognized in colonial charters of the seventeenth century. Thus, there has never been a time in the history of English America when the inhabitants did not believe that they were entitled to some rights. Further, from colonial times to the mid-twentieth century the insistence upon certain rights has been a central theme in our his tory. Our attention, however, must be focused upon what rights were claimed, what they were based upon, and what changes have occurred.

The earliest grants of rights to Americans stemmed from the King of England. His authority derived from his claim to rule by Divine Right. But in the course of the seventeenth century a momentous change occurred in men's beliefs about the source of their rights. Thinkers began to reason that rights derived directly from Nature OF RIGHTS-NATURAL AND ARBITRARY 343 whence they had been implanted by God, rather than indirectly through Divinely appointed authority. This view was used by John Locke to justify the Glorious Revolution in England, and by the time of the Ameri can Revolution it had been accepted by most thinking Americans. The rights which Americans claimed and in stituted protections of in our revolutionary era were re ferred to as Natural Rights. T he Law of Nature The Natural Rights Doctrine can be succinctly sum marized. It held that God had created the universe and that in so doing, as Alexander Hamilton put it, "the Deity, from the relations we stand into Himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature . . ." After quoting briefly from Blackstone, Hamilton continues his explanation: "Upon this law depend the natural rights of mankind: the Supreme Being gave existence to man, together with the means of preserving and beautifying that existence.

He endowed him with rational faculties, by the help of which to discern and pursue such things as were con sistent with his duty and interest; and invested him with an inviolable right to personal liberty and personal safety. "Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property, or 344 CLARENCE B. CARSON liberty; nor the least authority to command or exact obedience from him, except that which arose from the ties of consanguinity."2 These, then, were the foundations upon which Ameri cans based their rights when they set up the institutions of civil society in the Republic. They were founded up on the reality of a created universe whose Creator had invested with natural laws. The Founders believed that they had used reason to discover these laws, and that they were reasonable. The principles of natural rights, however, need to be more specifically stated. Natural rights were those rights which man would have if there were no governments or other human institutions. They would be rights because no man would have a right to take them away, though he might wrongly do so by the use of force. Thus, no man can claim a right to the life of another. No one has a right to the liberties of another.

In like manner, no man has a right to the fruits of the labor of another. In short, by nature a man would have the right to the exercise of his faculties in pursuit of his own well-being, so long as he did not trespass upon the equal rights of others. In a state of nature, however, natural rights would be endangered by the strong, the predatory, and evil com binations of men. Thus civil societies and governments were necessary to prevent the trespass of one man or a group upon the rights of another. In society,according to eighteenth century thinkers, natural rights gave way 2 Richard B. Morris, ed., Alexander Hamilton and the Founding of the Nation (New York: The Dial Press, 1957), p. 9.

OF RIGHTS-NATURAL AND ARBITRARY 345 to civil rights. But this change did not alter the content of liberties; it merely gave social support to them. As Hamilton said, uCivil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and de pendent on human will and caprice, but it is conform able to the constitution of man, as well as necessary to the well-being of society."3 It should be clear from this that governments might institute protections of civil rights but that the rights would not stem from gov ernments. Usurpation by Government Many Americans feared that the government created to protect the individual in his rights would usurp them itself. As Thomas Jefferson said, "There are rights which it is useless to surrender to the government and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free com merce; the right of personal freedom."4 Jefferson was expressing his discontent with the original United States Constitution because it did not specifically pro hibit the government from trespassing upon the rights of the individual. It was to answer this objection that the first Ten Amendments were added to the Constitua Ibid., p. 13.

4 Edward Dumbauld, ed., The Political Writings of Thomas Jef ferson (New York: The Liberal Arts Press, 1955), p. 57.

346 CLARENCE B. CARSON tion. These amendments were carefully worded. They do not imply a grant of rights by the government; the belief that they do is one of the distortions that has crept into our national thought. They are, instead, limitations upon the government itself. Their phraseology makes this clear: "Congress shall make no law respecting an establishment of religion" (Article I); "the right of the people to keep and bear Arms shall not be infringed" (Article II); "The right of the people to be secure in their persons ... shall not be violated" (Article III). The Bill of Rights should be correctly construed as pro hibiting the government from trespassing upon natural rights as civil rights. Recent Claims The above are the facts, reasons, and principles upon which the rights claimed by our ancestors were based. Now let us examine some of the recently claimed rights to see if we can determine their character. Does every child have a right to an education? If so, it must mean that he has a claim upon someone to educate him; for a right to be viable it must be realizable. Education re quires a teacher. A teacher must come forth willingly or one must be procured by inducements or coercion. In practice, the problem is one of employing teachers and paying them for their services. The money for payment must be willingly given, or it must be extracted from those who have it by force or threat of force. In either case, however, for a child to have a right to education OF RIGHTS-NATURAL AND ARBITRARY 347 means that he has a right to the fruits of the labor of others. In short, the right to an education can only be established at the expense of another and prior right.

Does everyone have a right to an adequate wage? If so, it must mean that he has a claim upon someone to pay it to him. Suppose that the workman does shoddy work, that he does not produce goods in sufficient amount to reward his employer for a decent wage, that he is incompetent, or that his skills are not longer sal able. Does he still have a right to a decent wage? If he does, it will have to be taken from the fruits of the labor of others. The same thing can be said of the right of the farmer to "sell his products at a return which will give him and his family a decent living; the right of every family to a decent home; the right to adequate medical care," and so forth. The establishment of such rights would be the instituting of perpetual coercion and injustice. Even if enough people would willingly give from the fruits of their labor to provide these benefits, that would not establish them as rights, for no claim to a gift can be established without changing it from a gift to a tax.

HU11~an Rights Those who favor instituting "economic rights" have invented a supposed distinction between "human rights" and "property rights." These human rights are said to be prior to and superior to property rights. Thinkers who make this distinction are accustomed to refer to all 348 CLARENCE B. CARSON concern with money, finances, and property as selfish and motivated by the desire for "pecuniary" gain, the latter being ignoble and inhuman in its consequences. But property (or monetary) rights are reducible to the rights of human beings to the fruits of their labor and the enjoyment of their life. The expropriation of prop erty or money is an expropriation of that part of the life of a man which he has spent in acquiring or im proving his property and earning his money. More, it is an ex post facto incursion upon the liberties of the individual, for it is the taking from a man the product of his use of his liberty. If the right to the disposal of his property is not a human right, there are no human rights.

Enough has been said to enable us to characterize the nature of most of these latter day claims to rights. They must be provided by someone or some agency. They are not founded in the nature of the universe, the nature of existence, or natural law. Thus, they are arbitrary crea tions, the product of the undisciplined imaginations of men. Can rights be arbitrarily created? If they can, what would be the effect of doing so? Undoubtedly, language can be used, or abused, to announce an almost limitless number of rights. Legislatures can embody such claims in acts, and politicians can run for office on the basis of them. But what cannot be done is to make a grant of some thing substantial without removing it from someone who is in possession of it. No one can be given the right to associate with me without taking from me my right to OF RIGHTS-NATURAL AND ARBITRARY 349 choose with whom I will associate. Noone can be given the right to goods which I produce without taking from me my right to the fruits of my labor. Noone can have a right to my services without infringing my liberty of serving whom I will.

An arbitrary "right," then, is based upon appearances rather than reality, upon expediency rather than reason, upon confusion rather than principles. It is founded up on the false premise (the appearance) that governments can create rights, that necessity or desirability can give rise to a just claim, and that a man's life and liberty can be separated from the fruits of them. An arbitrary "right" is one which would entail a limitation on other rights in its normal exercise. A natural right is one which can be exercised without trespassing upon the rights of others. It is founded in the nature of human existence. An arbitrary "right" has to be provided; a natural right has only to be acknowledged and protected. Arbitrary "rights" require positive enactment by governments; natural rights require only negative prohibitions. The Defamation of Natural Rights The natural rights doctrine has been "discredited" in fashionable intellectual circles. This was accomplished by imputing to natural rights philosophers a false con ception of the history of man. The defamers of natural rights profess to believe that our ancestors believed that man existed at one time in a state of nature, and that the validity of their concepts depends upon the historical 350 CLARENCE B. CARSON existence of such a state. This is not now and never was a valid issue; whether man ever actually existed in a state of nature is wholly irrelevant. Natural rights phi losophers based their doctrines upon the nature of real ity, not upon the course of historical development. They reasoned that governments were human creations, and that human creations were artificial. By a state of na ture they meant the natural condition of man without such human artifices. They were peering beneath the sur face of appearances to the underlying reality. They were holding that there is a limiting and lawful reality prior to man-made laws and institutions.

This conception of reality has no more been dis credited than has the law of gravity. Nor does the possi bility that these laws may differ somewhat upon the moon make any difference to our present existence upon earth. In order actually to discredit the natural rights doctrine, it will be necessary for thinkers to demonstrate that we do not live within a confining reality. Let them undertake flight on our planet without attention to the laws of aerodynamics. Let them show that they can be stow goods without taking them from their actual pro ducers. Let them create rights which will not impinge upon earlier rights and do not affront man's sense of justice. Let them submit their Economic Bill of Rights phrased in the legal language which would permit their embodiment into law as Constitutional Amendments, and let us judge whether or not they would result in an abrogation of the original Bill of Rights.

Natural rights and arbitrary rights cannot exist side OF RIGHTS-NATURAL AND ARBITRARY 351 by side in the same society; they are mutually exclusive. Every effort to create new rights in the twentieth century has already resulted in a diminution of natural rights as understood in the eighteenth century. There is an in verse ratio between the right of Americans to the fruit of their labor and the right of all Americans to a decent home. The truth of this statement is spelled out on the deduction side of Everyman's pay check. Most serious of all is the fact that if government can create rights, it can withhold and destroy rights. The practical consequence of this fact is that if rights are derived from governments, there are no rights. Govern mental favors may masquerade as rights. They may even assume a semblance of constitutionality. But such favors are instruments of power; they are arbitrary "rights"

granted under the exigencies of the circumstances, sub ject to recall and change when circumstances change. If it is expedient for every American to have a decent home today in view of the threat of international communism, it may be necessary tomorrow for many Americans to be reduced to abject poverty in order not to incite the envy of the rest of the world. In short, when rights are arbitrarily created, there are no rights. The extent to which we have accepted the belief that children have a right to education, that farmers have a right to a parity of income, that all have a right to the latest medicine, and so on, is the measure of the extent to which we have yielded up our natural rights. It is the degree to which we have sold our heritage for a mess of pottage.