How We Got Rights So Wrong

May 16, 2015

If the recent debate over RFRA laws and same-sex marriage teaches us anything, it is not that there are a bunch of bigots out there or that there are people being unjustly discriminated against. It is that, as a nation, we are facing a crisis of rights.

Witness the recent news item from Oregon: Last month, a judge pronounced that two bakers should pay $135,000 in damages for refusing to bake a same-sex wedding cake.

Now, we can look at this from a few angles. It could be that a couple of bigots are getting what they deserve. Or it could be that they are being unfairly demonized for doing their conscience. There are good people with good arguments on both sides of the debate.

We can all agree, however, that the Oregon case signifies a clash between opposing rights. Both sides of the argument claim to be in the right and to have the right to do what they are doing. On the one side are the bakers’ rights to conduct business as they please and to practice their conscience. On the other side are the customers’ rights to buy available goods and to not be discriminated against. The bakers’ rights necessarily infringe upon the customers’ rights, and vice versa.

One is tempted to chalk up the skirmish to an inevitable consequence of rights. The thought is that people want different things, and sometimes those wants come into conflict with each other. As it is with a rancher who wants to herd his cattle on someone else’s pasture, or the driver who wants to cut someone off while exiting the highway, sometimes it’s just ‘my rights versus yours’.

But, more than anything, this underscores a deep misunderstanding of the concept of rights. It is to assume that all rights are the same, and all conflict between them is an inner conflict within a self-contradictory system. We blithely accept the idea that the bakers’ rights are the same as the customers’ rights because, of course, they are both called ‘rights’.

A closer look reveals that the rights concerned are substantively different even though they use the same appellation. The fact is that the bakers’ rights do not force anyone to do anything while the customers’ rights more or less force the bakers to do something, and particularly something that would go against their consciences. This discrepancy means everything, and highlights the difference between two conflicting, even contradictory sets of rights.

All rights are not created equal

We can turn to the work of Czech-French jurist Karel Vašák for elucidation. Vašák outlined what he called ‘three generations of rights’, which take us from the origins of the concept of rights in the 17th and 18th centuries to the present day. They follow in order the three themes of the French Revolutionary apothegm, ‘Liberté, Equalité, Fraternité’.

The first generation of rights, Liberté, consists in what might be called Natural Rights or the Rights of Man. Conceived as early as Aquinas and enumerated by Locke, Montesquieu, and the Founders of the United States of America, these rights were seen largely as universal, God-given rights that no other citizen or government could add or take away. Hence the descriptor ‘natural’—they apply to all men for the very sake that makes them men, access to God’s law through right reason.

Due to these qualities, there are relatively few such rights. Locke summed them up as three: Life, Liberty, and Property. These three were acknowledged through the Declaration of Independence and American Revolution. The Bill of Rights provided specific examples such as freedom of speech, freedom to bear arms, and the right to a fair trial, but the core principle was the same.

From the Founding, Natural Rights stood for more than a century as the basis for all new socio-political constructs. Shortly after the turn of the 20th century, however, we begin to see an indication that Natural Rights are not sufficient to provide the greatest well-being possible. Even though there was freedom and opportunity, there was also widespread indigence, hardship, and suffering.

And so, in the first half of the 20th century, thinkers and politicians sought to introduce another wave of rights, Vašák’s second generation, or Equalité rights. This second wave took what had begun as Welfare State arrangements and turned them into entitlements—clean and safe jobs, food, housing, education, healthcare, and old-age pensions. This is where we get Franklin Roosevelt’s Second Bill of Rights, a smorgasbord that even included leisure as an entitlement.

The third generation of rights, Fraternité, departed even further from the origin of Natural Rights. The idea was that, to live a fulfilled life, one must have, not only life and liberty, and not only food and shelter, but also less tangible and at the same time more costly conditions and opportunities. Enumerated in post-modern, international documents such as the 1972 Stockholm Declaration and the 1992 Rio Declaration, the third generation includes group rights, such as those that recognize and support indigenous peoples, ethnic minorities, women, children, disabled persons, and so-called ‘protected classes’; the right to self-determination; the right to a healthy environment; and the right to take part in a cultural heritage. This third generation is where anti-discrimination rights reside.

Not all of the rights from any of the generations have been directly codified into law. But the concepts permeate the culture and animate activists to the extent that the spirit of each is broadly reflected into legislation or court decisions. And so it can be said that each generation of rights is backed by force as well as cultural inertia.

The second and third generation rights, or what have been called ‘Civil Rights’, are sometimes said to be an extension of Natural Rights in that they add to the Natural Rights of life and liberty as the Bill of Rights did. But all would recognize there are critical differences. To begin, these new rights are not necessarily God-given. No one argues that the right to housing or cultural heritage is inalienable. It is understood that the state is necessary to bring them about, whence ‘civil’ (i.e., ‘created by the civil authority’) as opposed to ‘natural’.

Nor are the second and third generation of rights universal. The bizarre Orwellian concept of ‘protected classes’ alone proves that these alleged rights are aimed not at all human beings for the sake that they are human beings, but rather for certain groups for the sake that they are different. While Natural Rights apply to and stress the similarities between people and thus unite, Civil Rights apply to and stress the differences between people and thus separate.

By the same token, whereas the first generation provides benefits of freedom without cost, the second and third provide benefits with a price tag. As political science professor Charles Kesler put it, creating rights creates duties to fulfill these rights. “As government grows, as more and more rights are created, someone has got to pay to guarantee your healthcare, your home, your job, your vacation from the job, and so forth.” To provide the second and third generations of rights, government must pay for them, which means that it must obtain the revenue somehow, which means it must force the people to pay taxes or support regulations one way or another.

To provide vacations for everyone, the government must forcibly take money from taxpayers and give it to the vacationers; to ensure that same-sex couples are not discriminated against, the government must forcibly make bakers provide their wedding cake.

When everything is a right, nothing is a right

Though proponents assert that all three generations of rights depend upon each other, it is clear that there is incongruity between the first and the other two generations. The difference can be seen in the proliferation of rights that we have seen in the last few decades. With Natural Rights, we could count on three fundamental entitlements; under the aegis of second and third generation rights, everything imaginable has become a right. Someone wants something and sees other people getting it, and so it must be a right. After all, why should someone else have something that all cannot have? Other people have high-paying jobs, so why cannot we? Other people have health insurance, so why cannot we? Other people are getting married, so why cannot we?

This is what the plausible concept of equal opportunity has morphed into: If some can have it, so must we all. It describes not a right, but a childish daydream. It is the elementary school concept of fairness writ large: ‘Did little Johnny bring enough to share?’ And, like all childish daydreams, it has no place in adult public affairs.

Indeed, labeling it a ‘right’ is not a matter of objective epistemology at all, but rather a deft stroke of political handiwork. By appropriating the label, opponents of rights have fortified their cause behind their enemy’s city wall. To contradict something called ‘gay rights’ is to contradict the historical tradition of rights in general, and so no one ever dares.

Worst of all, the rise of the second and third generations of rights has destroyed the first. In order to grant minority rights, workers rights, and the like, state governments must force the people to provide the wanted goods and services. In order to provide high-paying jobs, government must force employers to pay their employees more; in order to provide health care, government must force hospitals to offer services they would otherwise deny; in order to protect against discrimination, government must force pastors and cake bakers to take part in disagreeable ceremonies. While it benefits the employees, patients, and marrying couples, it crushes the Natural Rights of the employers, medical practitioners, priests, and bakers. It would seem that we have forgotten the fact that a fundamental part of being able to do as one pleases is being able to not do what someone else pleases.

As Bastiat put it in response to Lamartine’s plea for Fraternité, “The second half of your program will destroy the first half. It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being trampled underfoot.”

Increasingly, as seen in the Oregon case, the courts are joining the legislatures in this rampage. This means that the courts are either redefining Liberté rights to include Equalité and Fraternité, or we are simply getting rid of Liberté altogether. The result of the late proliferation of rights, then, is the destruction of rights.

Critics will cry ‘Hyperbole!’ After all, it’s just a cake—who cares if a baker is forced to bake a cake for someone? They’re doing it anyway.

This is to miss the forest for the trees. The bakers say that the fine would ruin them financially. If they don’t pay the fine, they will be sent to jail; if they refuse to go to jail, they will be forced; if they resist, they will be killed. Basically, the Oregon case means that we, as a society, are willing to kill someone for not baking a cake.

It might seem extreme, but that is exactly the proposition we face. Yale Law professor Stephen L. Carter explains that a law can only be viable if police are willing to enforce it, and the ultimate form of enforcement is through lethal violence. It is the explanation for the Eric Garner case and similar tragic stories that we’ve heard lately.

At the founding, political thinkers and lay citizens alike sought to establish a nation based on Natural Rights. The idea was that all had the right to do as they pleased so long as they didn’t harm others’ rights to do the same. Rights were supreme, and everyone could belong as long as they adhered to the basic principle of Natural Rights.

These days, as we have found, belonging is supreme, and you are only granted rights as long as you accept everyone and everything. Few have come to realize in this age of inclusiveness that accepting everyone and everything means that there can be no judgment, that without judgment there can be no discretion, without discretion there can be no choice, without choice there is no freedom, and without freedom rights are meaningless.

Two rights making a wrong

The progressive is compelled to protest. Isn’t there at least some virtue in the second and third generations of rights? Life wasn’t perfect when we were limited to Natural Rights, and so Civil Rights were necessary to fulfill the promise.

Consider slavery and the Jim Crow South. In America, for 150 years, we had an establishment of Natural Rights, and still the worst evil persisted. The argument goes, this evil could only be overcome by a new set of protections, even if those new protections undid some old ones.

But this is to suggest that the first generation of rights accommodated evils like slavery and Jim Crow laws. Of course, the right to Life, Liberty, and Property, granted to everyone by God explicitly condemns slavery and Jim Crow laws, which could only exist in spite of Natural Rights. Regard the arguments made by abolitionists in the time of slavery and by integrationists in the time of Jim Crow: Reformers relied upon Natural Rights and the Founding documents for their case. That is because they understood that slavery and Jim Crow laws were violations of the fundamental Rights of Man, and all they had to do was to appeal to the people’s sense of Natural Rights to convince.

Contrast that with the arguments used to overcome today’s evils, discrimination, lack of vacation, and so on. Not only do today’s activists not rely upon the Founding documents and Natural Rights to make their cases, they rather hold the Founders in contempt. They were racist aristocrats aimed at squirearchy, and so everything they stood for must be rejected.

This is to throw out the baby and keep the bathwater. The problem wasn’t that Natural Rights allowed for evils to exist; it was that people in power codified evil despite Natural Rights. With Jim Crow, for example, the problem wasn’t that people had the liberty to do as they pleased and used that liberty to discriminate; the problem was that governments and laws positively forced people to discriminate.

The solution, then, is not to correct or to get rid of Natural Rights in favor of Civil Rights; it is to correct or get rid of the laws that contradict Natural Rights. There is no need for new rights as long as the fundamental rights are enforced as designed.

And that is the trouble with Civil Rights or any of the second or third generation rights—what is good in them is redundant and thus useless; the rest defeats Natural Rights and is thus detrimental.

This is mirrored remarkably in the same-sex marriage conundrum. The problem isn’t that people have the freedom to do as they please and use that freedom to discriminate; the problem is that governments and laws positively force people to discriminate.

Beyond the traditional meaning and customary sacrament that goes with marriage, it also comes with a number of civic privileges, including tax breaks, estate planning, employment, housing, and death benefits. The upshot is that people who are not married are necessarily discriminated against and denied these benefits. Government incents marriage and discriminates against non-married persons, so it only makes sense that people want to get married even if they cannot possibly fit into the category as traditionally defined.

The solution is not to redefine marriage so that others get the benefits; it is, rather to get rid of the benefits that married couples receive and that non-married persons are denied. The solution is to quit incenting marriage and legally discriminating against non-married persons. No new laws are needed to protect gay rights; Natural Rights should do the trick for all humans inasmuch as they define themselves as humans.

The only rights we’re left with

No one will deny that this is a complex and likely contentious solution. In a century of piling up rights, there are many who have derived valuable and even time-honored benefits. The point is not to punish those people from receiving those special benefits, but rather to ensure that all people receive the fundamental benefits of being alive. Indeed, getting rid of all the special rights and benefits is the only way we can protect the fundamental rights and benefits for all. For, as Jefferson said, “The most sacred of the duties of a government [is] to do equal and impartial justice to all its citizens.” The only way to do that is to limit rights to the natural ones.

Wedding cake is not a right, just as same-sex marriage is not a right, just as marriage in general is not a right. There is no such thing as ‘gay rights’ or ‘black rights’ or ‘reproductive rights’ or ‘student rights’. There are only ‘Human Rights’. Advocates of gay marriage seek respect for being gay. But the Constitution doesn’t guarantee respect for being gay or being straight or being white or being black. It guarantees respect for all humans as human beings, and makes no exceptions based on the distinctions we choose to emphasize.

This standard is the only viable standard for rights, and is so par excellence since it by nature exalts what is universal and highest in men—the ability to reason. Civil Rights divide and exalt the basest of man’s characteristics—skin color, disabilities, sexual instincts. Contemporary political standards reduce men to these base characteristics. Only when we elevate our self-perception can rights grant us the dignity they promise.

From the 1966 film adaptation of A Man for All Seasons, a standard to perfect our nation: “I do none harm. I say none harm. I think none harm. And if this be not enough to keep a man alive, then in good faith, I long not to live.”