Welfare as a Right; R. Foley, Jr.

__Welfareasa Right RIDGWAY K. FOLEY, JR. "WELFARE is a right, not a privi lege" is a popular cliche which calls for an immediate and force ful rejoinder. Despite the obvious error latent in the phrase, this declaration assails us daily from myriad sources in varying guises. The National Welfare Rights Or ganization made the statement in its clearest form but similar ut terances emanate from groups claiming that child care, food stamps, and all manner of hand outs exist as a matter of right. Reason permits penetration of myths and fallacies; and defini tion of terms, illuminating the problem, constitutes the first step toward reason. Welfare Like other open-textured words, "welfare" possesses a variety of meanings. Like other terms utHMr. Foley, a partner in Souther, Spaulding, Kinsey, Williamson & Schwabe, practices law in Portland, Oregon. ized in the political arena, it is subject to corruption by both friend and foe.

Recur to Webster, the common authority. The primary meaning assigned to "welfare" encompasses "the state of faring or doing well, thriving or successful progress in life: a state characterized especi ally by good fortune, happiness, well-being, or prosperity"! Dr. Sisson offers the following syn onyms which reflect a similar un derstanding: "aid; future; good; happiness; health; progress; pros perity; sele; success; weal; well being."2 Thus, the traditional meaning assigned to the term con jures up thoughts of goodness, happiness, prosperity and well-be ing. 1 Webster's Third New International Dictionary (unabridged, G & C Merriam Company, Springfield, Mass, 1966) 2594. 2 Sisson, F. A., Sisson's Synonyms (Parker Publishing Company, Inc., West Nyack, New York, 1966) 678. 663 664 THE FREEMAN November Webster's secondary definition illustrates the gradual erosion of the word as it becomes political ized: "Of, relating to; or con cerned with welfare and especially with improvement of the welfare of social groups (as children, workers, or underprivileged or disabled persons)" (emphasis sup plied). Thus, we move from a definition which described a de sirable state of affairs (one which might be somewhat difficult to achieve) to a corrupted definition manifesting concern with improve ment or imposition of that state, apparently by the actions of men.

Clearly, those who urge that "welfare is a right, not a privi lege" do not by that statement mean that happiness, prosperity, well-being or good fortune consti tute fundamental, unassailable rights - or do they? The emasculation of the word becomes complete when we review Webster's definition of "welfare state," for here we discover that the polemical wordsmiths have journeyed from a descriptive meaning to an extensive one, an urge to action: A social system based upon the as sumption by a political state of pri mary responsibility for the individual and social welfare of its citizens usu ally by the enactment of specific pub lic policies (as health and unemployment insurance, minimum wages and prices, and subsidies to agriculture, housing, and other segments of the economy) and their implementation directly by governmental agencies. Instead of describing an ideal, those who use the word now seek to impose their views of the ideal upon others by coercion. Notice that each and every example in the dictionary definition of "wel fare state" involves government coercion of the individual, a mulct ing of his free choice. No longer is he able to seek his own destiny - his own way to good fortune, well-being, prosperity and happi ness; instead some other individ ual or group arrogates the author ity to decide for him what he wants or needs to secure euphoria.

Thus has the definition moved from traditional description to methodology, and a false meth odology at that! In its primary sense, "welfare" remains open-textured; any in divid ual can discern for himself what constitutes happiness, pros perity and well-being; these goals vary from person to person. In the secondary sense, "welfare" as sumes knowledge on the part of someone of what constitutes hap piness, prosperity, and well-being for all others within a group, class, or society. Properly analyzed, then, the de1973 WELFARE AS A RIGHT 665 clarant of the cliche means that government interventions in the economy benefiting some individ uals and groups at the expense of others is a right, not a privilege. Boldly stated, this utterance seems questionable; as we shall see, after a brief analysis of the concepts of "right" and "privilege," it actu ally borders on sham. What is a Right?

"Right" refers to another of those baffling terms which, seem ingly clear in application, flit about like a noisy ghost when one seeks a precise definition. It is a word of many shadings of mean ing, none of them exact; a perusal of Webster's reveals one page of fine print devoted to the term; re course to a jural lexicographer of fers three pages of definition. 3 Part of the confusion arises from the human tendency to use the same words at different times in different contexts to mean dif ferent things. Thus, a speaker may initially use the word "right" to mean any obligation legally en forceable by one man against an other and yet, on another occa sion, utter the same word as mean ing a seminal power inherent in an individual just because he is a 3 Black's Law Dictionary (4th edi tion, West Publishing Company, St. Paul, Minn., 1951) 1486-1488. human being, notwithstanding (or sometimes, in spite of) the coer cion of organized government.

Black's Law Dictionary exhibits this particular befuddlement: ... a power, privilege, faculty, or demand, inherent in one per'son and incident upon another. "Rights" are defined generally as "powers of free action." And the primal rights per taining to man are undoubtedly en joyed by human beings purely as such, being grounded in personality, and existing antecedently to their recognition by positive law. But leaving the abstract moral sphere, and giving to the term a juristic con tent, a "right" is well defined as a "capacity residing in one man of con trolling, with the assent and assis tance of the state, the action of others." (p. 1486) Further blurring the identity, some append the adjective "nat ural" to "right," when utilizing it in its fundamental moral mean ing: Natural rights are those which grow out of the nature of man and depend· upon personality, as distin guished from such as are created by law and depend upon civilized soci ety; (p.1487) Let us isolate and comment up on the essential meaning of a "right." It is something funda mental, inherent in man's person 666 THE FREEMAN November merely because he is a person. It cannot be justly disparaged by an other man or group of men; it exists beyond the reach of man kind and emanates from the Es sence of the Universe. It deals with free action, with voluntary use of faculties in all fields of en deavor.

Properly construed, a right ex ists without law, without the sanc tion of a legal system - once one assumes the necessity of a juridi cal unit to establish rights, he must also posit that that same body may lim,it or destroy those identical rights. Consider reality: if the right of free speech, free press, and free association, guar anteed by the First and Four teenth Amendments to the United States Constitution do not inhere in mankind but exist only because of some writing on a crumbling document, the guarantees mean little: in periods of stress, martial law may be impaired by the same authority which produced the Con stitution, allegedly justifying the "temporary" removal or restric tion of those rights. Contrary to Black's definition, a right need not favor one person to the detriment of another. Prop erly analyzed, the existence of rights in one man benefits all man kind. Man should be free to choose his own destiny in all enterprises.

The sole justifiable limitation on this liberty rests in the injunction that no man shall use his powers to coerce or deny an equal free dom in all other human beings. My freedom diminishes to the ex tent that I do not possess the right to murder my neighbor; his liber ty likewise lessens because he may not lawfully take my life. But to ascribe to rights the attribute that the existence of a right in A diminishes the corresponding right in B fails to ring true. A's right to order his life does not conflict with B's equal, reciprocal right (except in the limited sense that neither may coerce or defraud the other) ; indeed, a vast multitude of actors, each seeking their own ends, effectively pro duce material well-being (or wel fare in one sense) beyond the wildest imaginations of the utop ian planner. My right to produce shoes does not infringe upon my neighbor's right to produce shoes in competition with me ; we each create value; that value is meas ured by the choice of others who wish to purchase shoes, exercis ing their respective rights to choose.

A fundamental right must pre exist a jural system, but it may exist contemporaneously with such a system. The appropriate inter rela tionship between essential rights and the jural system ap pears in the Jeffersonian phrase, 1973 WELFARE AS A RIGHT 667 "That to secure these rights, gov ernments are instituted among men."4 Rights inhere in man be cause he is a human being en dowed with such powers by his nature and by the principles which govern the universe. The sole legitimate function of that or ganized force we call the state, or government, is to secure-protect against invasion - these rights in every individual. The result: each man remains free to follow the dictates of his conscience and to seek his own destiny. Privilege Contrasted Analysis of the concept of "priv ilege" indicates that such an as sertion means something quite different than a fundamental right; indeed, the word partakes of the veiled meaning of right de pendent upon legal sanction for its continued existence: A particular and peculiar benefit or advantage enjoyed by a person, company, or class beyond the common advantages of other citizens. An ex ceptional or extraordinary power or exemption. A right, power, franchise or immunity held by a person or class, against or beyond the course of the law.5 In short, a privilege denotes a 4 Declaration of Independence, United States of America.

5 Black's op cit, p. 1359. special power, favor or advantage granted. by law to one individual or group, conferring particular rights upon the recipient to his benefit and to the concurrent detri ment of others in society. Unlike a fundamental right, the existence of which benefits not only the holder but also all others in soci ety, a privilege favors one and de means another, all backed by the coercion of the state. Monopolies and subsidies offer common examples of privileges. The state grants a monopoly fran chise to ABC Power Company, ex cluding all others who wish to generate, transmit, and distribute electric power in a given terri tory, and exacting tribute in re turn by means of restrictions on freedom of choice (e.g., excise taxes, franchise taxes, limitations on hiring and personnel policies, rate tariffs). ABC Power Com pany receives a privilege - one for which it pays dearly in real terms.

Again, Farmer Brown and Busi nessman Smith glean gifts of money from the national govern ment for permitting land to stay fallow or for producing certain machine tools. Since government creates nothing, the funds trans ferred to Farmer Brown and Busi nessman Smith derive from other individual value-creators in soci ety; the funds change hands by means of coercion; the creator of 668 THE FREEMAN November value is taxed by the state so as to support Smith and Brown, and he acquiesces only· because he does not wish to be killed, maimed or jailed by the collective force of society. These simple examples of priv ilege disclose another differenti ating aspect from right: a privi lege cannot exist without an un derlying jural system since, by postulate, a privilege takes from one and gives to another by force and thereby wholly depends upon the law for its sanction. Furthermore, privileges do not connote "powers of free action"

for they inhibit the freedom of the disadvantaged person or group. Unlike fundamental rights, privileges, being dependent upon government, may be altered, changed, or obliterated by the granting authority. In sum, privi leges lack the enduring qualities of rights. Consider The Phrase: Is Welfare A Right Or A Privilege? Armed with this linguistic anal ysis, let us now consider the utter ance, "welfare is a right, not a privilege." What does the decla rant mean? He or she can only mean that a system of government and law which supplies advan tages, subsidies, and favors to one segment of society (the "disad vantaged," whoever they are at that moment) endows the recipi ent class with a fundamental pow er to receive this largess, a power which preexists and supersedes the state, even though these dona tions unduly hamper the freedom of choice of other individuals in that society. Can a rational man truly accept the position that the state should coerce and defraud citizens of value they have created so as to benefit other, less productive crea tures? Even assuming that the state has the power to bestow exacted value upon selected mem bers of society (less a substantial handling charge, of course), how can intelligent people really be lieve that the ability to receive such benevolence not only pre-ex ists the state but also stands be yond the reach of popular termina tion? What the proponents of the cliche truly propose is a system whereby benefits, once granted, can never be diminished or termi nated. Most aid programs never cease, but the voluntarist retains the fond hope that someday, some how, libertarian legislators will dismantle at least some of the cumbersome, expensive and free dom-throttling machinery of the state. No objective observer can accept the proposition that once a program designed to promote the real or imagined well-being _of one person becomes law, that law for1973 WELFARE AS A RIGHT 669 ever freezes into the system be yond the possibility of change.

Yet, apparently that is the expec tation of those who cry, "welfare is a right, not a privilege." Realistically viewed, the shib boleth asks mankind to weld into a juristic and socio-economic sys tem the concept that "might makes right." Reduced to its bare bones, the phrase means that some group should gain at the expense of others, and that the st'ate should not only effect that gain by use of its collective force but also supply some sort of moral sanction for its own activities as well as those of the beseeching donees. Simply stated, the welfarists assert that they are entitled, because of abil ity, talent or some other inherent attributes, to the fruits of the la~ bor of their neighbors at a partic ular point in time and that once they start receiving these advan tages, no one should ever interfere with the steady flow of coerced goods into their coffers. They pos sess the power to mulct others but they deny an equal reciprocal pow er to others to protect themselves, and they possess the additional audacity to demand that their victims acquiesce in the looting because the conduct, while repre 4ensible to most of us, deserves the armor of moral propriety!

Contrary to the fallacy implicit in the phrase, power and coercion do not constitute moral absolutes in our universe. You may steal my goods, or destroy your neighbor you have that power. Existence of power does not equate with what is right, just, and proper. Might does not make right. Man' 5 Capacity for Sympathy Clarify the analysis. Noone rails against the unfortunate members of society who are disad vantaged by accident, illness, trag edy, or station in life. Sympathy exists as a natural and desirable attribute of man. Each of us fe_els sympathy and empathy for those less fortunate: the widow raising young children, the blind man, the crippled veteran, the homeless al coholic. In some instances, tragedy visits those who do not seem to deserve that fate; in other cases, man acts in such a way as to 8n courage his own problems. :3t:i, in either event, most humau beings feel a very real sorrow and com passion for their beleaguered neighbors.

Because of this natural capacity for sympathy, most of us are in terested in the well-being, happi ness, and prosperity of others in society; to that extent, we favor their welfare. But it is a far cry from this position to condone gifts of assistance to these sympathetic creatures when the gifts are rav aged from other people who cre670 THE FREEMAN November ated value and whose only crime consists of the desire to keep what they created. Who knows whether those despoiled could have put their property to better use than the donees? Who among us pos sesses the god-like faculty for making this kind of arrogant val ue judgment? Perhaps welfare subsidizes a needy one-legged vet eran, but the tax which pays the subsidy is exacted from a hard working woman in poor health who valiantly strives to save some 'of her earnings for early retire ment so she can live the rest of her labored days in comfort and perhaps stretch the pleas~rable portions of her life out by weeks, months, or years. Which of us pos sesses the omniscience to foresee and fit each life together to achieve perfect harmony and justice in the balance? And who among us truly desires and possesses the capacity for making such awful judg ments? Not I.

The Needy Veteran versus the Spoiled Brat But to make the point more lu cidly, let us posit the welfare re cipient as a bedridden veteran, crippled and blinded, unable to se cure gainful employment through no fault of his own with three motherless infants to rear. Pre suppose that the recipient's sub sidyemanates directly from the pockets of a ne'er-do-well scion of a millionaire who has never done a lick of work in his life, whose sole career appears to consist of drinking, wenching, and riding trail bikes in sylvan glens. Al most all of us would sympathize with the condition of the disabled veteran; many of us would gladly donate from our meagre store of value so that he might live a more prosperous and happy life - and we would do so voluntarily sans coercive government. Moreover, many of us would say that the spoiled brat of the rich man led a worthless life and ought to sup port the poor veteran. But even this supposed situation should not sway us from our firm' resolve never to deprive our neighbor of his equal and reciprocal rights.