Harry Jaffa, a distinguished fellow at the Claremont Institute and professor emeritus of government at Claremont McKenna College and the Claremont Graduate School writing in the WSJ on the importance of promoting individual rights as a “universal”—a meme I’ve been hitting rather hard myself lately. From “The Central Idea: In Iraq as in America, there’s more to democracy than majority rule”:
[…] We continue to enjoy the practical benefits of political institutions founded upon the convictions of our Founding Fathers and Lincoln, but there is little belief in God-given natural rights, which are antecedent to government, and which define and limit the purpose of government. Virtually no one prominent today, in the academy, in law, or in government, subscribes to such beliefs. Indeed, the climate of opinion of our intellectual elites is one of violent hostility to any notion of a rational foundation for political morality. We, in short, engaged in telling others to accept the forms of our own political institutions, without reference to the principles or convictions that give rise to those institutions.
According to many of our political and intellectual elites, both liberal and conservative, the minority in a democracy enjoys only such rights as the majority chooses to bestow upon them. The Bill of Rights in the American Constitution–and similar bills in state constitutions–are regarded as gifts from the majority to the minority. But the American Constitution, and the state constitutions subordinate to it have, at one time or another, sanctioned both slavery and Jim Crow, by which the bills of rights applied to white Americans were denied to black Americans. But according to the elites, it is not undemocratic for the minority to lose. From this perspective, both slavery and Jim Crow were exercises of democratic majority rule. This is precisely the view of democracy by the Sunnis in Iraq, and is the reason they are fighting the United States.
Unless we as a political community can by reasoned discourse re-establish in our own minds the authority of the constitutionalism of the Founding Fathers and of Lincoln, of government devoted to securing the God-given equal rights of every individual human being, we will remain ill equipped to bring the fruits of freedom to others.
[my emphases]
The importance of “unalienable” rights is that they cannot be taken away by government, which has the practical effect of asserting that government is not the final arbiter of the rights of the individual.
I argued the other day that a philosophical deconstruction of the concept of extra-linguistic “universals”—which amounts, essentially, to nothing more than a description of how “universals” are articulated and formed, and then put into competition against competing “truths” articulated by man—in no way diminishes the force of the idea that certain rights are beyond the reach of government.
For those uncomfortable surrendering the domain of those universal rights to a metaphysical realm (in Jaffa’s formulation, these rights are God-given, but they can achieve the same status by simple, immutable originary consensus), they have but simply to adopt as part of their own philosophical position regarding social contracts the primacy of certain individual rights that are beyond the bounds of any government to remove.
(h/t Terry Hastings)
I haven’t yet picked any of your typo nits, but this one does stand out to confuse the meaning of your statement:
Should that not be ”by government”?
Yes, of course. Fixed, thanks. Too many irons in the fire right now.
While I appreciate the spirit of your post, even the “inalienable” rights protected by the Constitution and the Bill of Rights can be taken away if enough of the population supports doing so (2/3 of both houses, 3/4 of the states, if I recall correctly).
So I think it’s correct to say that, in the US, the minority only enjoys those rights the majority bestows upon them—assuming you’re dealing with a big enough majority.
And when in Iraq you’re dealing with a less liberal (in the classical sense) population than you are in the US, the Sunnis may have good cause to fear that an “anti-Sunni amendment” might get passed by a big enough majority of Shia and Kurds.
All of which is a somewhat rambling way of saying that our inalienable rights are not inalienable even under our own Constitution, if revoking those unalienable rights were to get enough popular support. That would be very unlikely in the US, but may not be so obviously unlikely in Iraq.
Sorry, Jeff, another “typo”–it is unalienable, as spelled in the Declaration.
Jeff, perhaps you can inform us what the leftists think is the basis of our rights…if no rational basis and no God, then what?
I always figured that they felt rights were rationally based altho they cagily refuse to reveal their premises because they are not confident of the validity of their reasoning.
DRB —
There are certain unalienable rights (as noted in the Declaration) that are provided for in the Constitution. I don’t believe these can be revoked (they are recognized rather than granted), but somebody else might want to chime in who knows how better to explain the difference. But the point is, these unalienable rights are distinct from the Bill of Rights (after the first 8). More here.
DRB: I don’t know exactly what your point is beyond saying: anything is possible.
By your reckoning, the greatest flaw of the Constitution is that it can be amended by super majorities, while the phrase ”unalienable Rights” occurs in the Declaration of Independence.
And your observation regarding what Iraqis might or might not do, appears without any foundation, other than your outright speculation. There is no historical basis from which to judge Iraqi behavior under a system of unalienable Rights. The most that one could say is that the current state of affairs is a huge experiment in self-government, but then the last 50 years illustrates a pretty good track record, around the globe, for experiments in self-government.
Or do you just wish to condemn the Iraqis to your opinion regarding their prospective failure, irrespective of however self-government emeges–warts and all.
You demonstrate a propensity for impatience, recognizable in the sentiment of the MSM, where perfection becomes the enemy of the good.
Furthermore, your reading of minority rights betrays an ignorance of the Declaration where individual rights are endowed by their Creator, and as enumerated in the Constitution; where those powers not delegated to the federal government are reserved to the states or the people (X Amendment); and the rights retained by the people are not strictly limited to those specifically enumerated in the Constitution (IX Amendment).
Our whole Constitutional exercise regards the conscent of the people–a majoritarian concept–in light of certain unalienable rights (rights that cannot be taken away, even by a majority) retained by the people–all of the people–and not a concept of special pleadings, or rights, for non-majority groups.
Pose all the hypotheticals you care to. We’ve already had our Civil War, so your point that anything could happen is moot. But then again, what’s the point? The Sun rises in the East is not much of a starting point upon which to base an argument.
Cheers
Unalienable rights are inherent natural rights. They cannot be “revoked”, they’re either respected and recognized or they are not. The Constitution cannot be amended to “revoke” them per se. If it was amended in such a way, it would violate our human rights. Rights are recognized, not granted.
“All men are created equal” doesn’t have much meaning if it is not a universal truth. Otherwise it would mean “All men are created equal if they want to be considered created equal, unless they live in a society that doesn’t believe that, in which case they are not actually created equal.” The same way rights are not given or granted by governments, they aren’t given or granted by a “culture” which is a social construct.
Jeff,
We may be talking about different things. To the best of my knowledge, we have already given our government the power to revoke what we like to call “unalienable rights”—things like life (e.g. death penalty) and liberty (e.g. prison, conscription). Such revocations are of course conditioned on due process of law. Perhaps I’m not grasping your point correctly.
As to other rights that might be considered “universal human rights”, the people of the US may choose to constrain those rights to the extent they delegate to their government the power to do so.
Forbes,
I can only assume you are talking to someone else—perhaps the imaginary DRB who resides in your head? The strawman you handily dispatched had very little to do with what I posted. It looked like a lot of typing though…hope you at least enjoyed the exercise.
“simple, immutable originary consensus”
Um, Jeff, this is an oxymoron of truly epic proportions. If fact, consensus is the last refuge of the run-of-the-mill leftist who has deconstructed everything else, but as you noted, it boils down to little more than majority rule.
Immutability, not to mention simplicity, requires something else.
There are certain unalienable rights (as noted in the Declaration) that are provided for in the Constitution. I don’t believe these can be revoked (they are recognized rather than granted), but somebody else might want to chime in who knows how better to explain the difference. But the point is, these unalienable rights are distinct from the Bill of Rights (after the first 8). More here.
I believe that #7 on the list that you provided states your point exactly.
It’s always been the main reason I supported the Iraq War—if I was living in a state like that, I would appreciate it if someone came in and removed them and gave us a chance at democracy.
I think the point was more of a philisophical one. That certain basic rights dont’ emanate from a governmnet, but from one’s creator. It was this underpinning which makes the US Constitution so special. It states what the government is allowed to do, not the people. It’s a small but vital difference than the opposite approach.
Bezuhov —
I know what all the individual words in the phrase meant. Which is why I added “originary”—meaning, it is agreed upon at conception as something that, post conception, cannot be changed.
It is of course easier to grant this power to a metaphysical universal, but postmodernism has problematized that. So if you have a better way of articulating what I am saying, go for it. But it is not an oxymoron. Codified consensus that it is agreed by all cannot be changed once codified is immutable.
Jaffa makes some sense;–until he starts talking about God.
They way he reasons, if you don’t believe in God, then you cannot believe in constitutional government.
Which is a load of nonsense, but what can you expect in the Editorial pages of the WSJ.
As opposed to your preferred reading material, Goss. Yeah, cheap shot, but I’m feeling a little sleazy tonight.
I’m just flabbergasted that rather than recognize the true threat from the Islamofascists, some would rather point out how we could theoretically take our own rights away. Which is the kind of assbackwards irony in this debate that Jeff is taking great pains to illustrate. WE, in the western heritage collective sense, are not the problem, folks.
All of this is, to me, why banishing God from the public sphere is dangerous. I’m not a creationist or a fundamentalist, and I have never tried to impose my view of God on others. I’m not even particularly religious. I don’t think Ben Franklin or Thomas Jefferson (to name two of the founders, as an example) were religious ideologoues—I suspect that neither of those men truly believed in God in the sense of expecting that Got would intervene in their lives as their particular Savior.
But there is a reason that these men speak of God with reverence, or at a minimum, with seriousness, in their public writings.
The Creator, as philosophical construct, is the thing that in our system ultimately limits the power of the state. It is the only philosophical restraint on the power of the state, and as other commenters have noted, our system is unique because we recognize there ought to be restraints on the state.
Banish God, and the state is all powerful. I would rather accept the philosophical construct of God the Creator (even were he completely fictional) and enshrine that fiction in law than kneel to the power of the state.
We often think of our creators as being men more primitive than us. They were not. They were in many respects far more civilized and thoughtful than we are, despite some of their more obvious blindnesses and bigotries. They understood that they must restrain the state or lose their freedom, because they lived it.
We forget their lives and their lessons at our peril.
Said what I wanted to say better than I said it, Colossus.
I’m not particularly religious, either. But the point is, you don’t have to be. You just have believe in something larger than yourself—or, in the case of the postmodern turn, agree to do so—and that becomes the most important check on the state and the most important component of freedom.
The problem with basing rights on God is that one cannot fight the assertion that God wants people to submit to His will, as revealed to his prophet and written in this holy book, by simply asserting that, no, God wants each individual to be free to pursue his own happiness.
If there isn’t a rational argument for man’s rights, then there is no argument for man’s rights. Claims about what God wants for us are not arguments, they are simply assertions.
“We hold these truths to be self-evident…”
Well, obviously, they weren’t.
Thanks, Jeff. That means a lot to me, as I have long admired your insights and your writing.
No. Wrong emphasis, especially if you’re trying to approach the idea from a secular point of view.
Stone walls do not a prison make,
nor iron bars a cage
The heart both calm and quiet doth make
of these an hermitage
Unalienable (or inalienable) rights can be taken away, and are with some regularity. The difference is that it is always unjust to do so. The injustice may be greater or lesser—refusing felons the right to vote is one way of recognizing that the felon is guilty of violating the rights of another, and should be punished proportionately—but when unalienable rights are violated it is always an injustice of some degree.
And why is that?
From a practical point of view, it only takes one person to exercise an unalienable right. The ones named by the Founders are like that. Freedom of speech is an absolute, for instance, because the only way a second party can interact with a person speaking is to restrict it. A second party can never add, can only detract, from an unalienable right. You can extort silence from me, but you cannot extort the speech I want to utter.
Contrast that with such modern nonsense as “right to a job” or “the right to have good nutrition”, e.g., the UDHR and similar nonsense. The only way such a “right” can exist is to have a second party guarantee it for the right-holder. If I am determined enough I can speak, whereupon you punish me for it; but no matter how determined I am, having a job requires that someone else provide it. Worse yet, as a practical matter the “right to a job” requires a third party which must guarantee the “right” by restricting an unalienable right of the second party (in that particular case, the right of free association).
So when you’re trying to sort out unalienable rights from the faux-rights being advocated today, that’s the touchstone: could a person alone in a forest exercise the “right”?[1]. Alone in a forest, with no one to compel, I can say what I like; when a second person enters the picture the possibility of violation of that right exists. Alone in a forest, I have to wait for someone to come around and give me a job, and I may have to wait for another person to come along and force no. 2 to give me a job.
If it doesn’t pass the one-person test it isn’t an unalienable right, and asserting it almost certainly requires that another person violate the unalienable rights of yet another to give it.
Regards,
Ric
[1] Yes, the right of free association is unalienable. It may be amusing to work out why.
An interesting argument, Ardsgaine. Certainly the enlightenment Creator as a God works so well for this purpose because he does not interfere in Newton’s universe. You will notice that the founders do not speak of Christ in the Declaration, but of the Creator and “nature’s God”—a formulation that works precisely because he is so impersonal. God reduced to Prime Mover, uncaused cause. God as a philosophical ideal, not as the burning bush, pillar of smoke, or the Savior on the Cross.
While Islam’s notion of God is not, at first blush, this nuanced, I wonder if there isn’t a school of Islamic thought that might encompass this idea. The Muslims did ingest an awful lot of Greek philosophy in their early years; one wonders if Averroes or Avicenna might have evolved some thoughts in this direction that a Muslim jurist might advance in a method similar to the construct of the Founders. I’m not educated enough on the subject to know the answer to that. Certainly, the notion of the separation of church and state is one that seems alien to Islamic law, read in the normal way. That makes it difficult.
Perhaps we can portray (or understand) the Founders as being possessed of sufficient humility to not know the will of God, which is why they advanced him as a minimalist construct and not as, for example, Jesus Christ as defined by a synod of Episcopalian bishops. Perhaps a similar appeal to humility might appeal Muslim jurists, especially when contrasted with the rather (if I may be juvenile) “assholish” approach of Bin Laden and the mullah Omar, who presume to know the will of Allah, writ large in our blood. What we need are Muslim utilitarians, who, exposed to our thought, see the genius of our creators. I’d rather live under our Founders’ polite notions of the will of a rather distant god than under, say, Stalin’s boot. I certainly wouldn’t reject the idea out of hand, because it has been proven to work, and Stalin’s boot is an alternative that is all too real, if we conteplate the horrors of the twentieth century, in which even Stalin is not considered the greatest criminal. I accept the Founders’ unproven assertion. It has the merit of working.
– Ards. I can’t be absolutely sure but I would guess thats the purpose of the “Golden rule”. When all else becomes deconstructed, in the sense of the “open” questions, with no specific guidelines or moral imperitives in our world experience as to how we ought to “feel” about a given issue, the religious formulation, as well as most “tribal” groupings, recognizing this long ago, decided the only sure way to resolve such questions favorably in an interpersonal conflict, was to put the ball squarely in the questioners court by playing on the one thing as constant as the sun; personal accordance. Of course it fails miseribly if either side takes a cynical, distrustful view, or the society in question views tolorance for others as a weakness.
– As to the IX and X amendments, articles written in the final drafting some 4 years after the initial effort, (they recognized the desperate need to get something into place quickly), they had been both planned and of the greatest importance to the framers, precisely because they were most worried about three things:
– a runaway federal.
– Lobbying by special interests (yes. an old old problem)
– The protection on the “unalienable” rights of the individual “against governmental conscript of those rights in ways not possible to anticipate” – T. Jefferson
In fact I doubt most people todat realize that they are Citizens of “rights” first, and of their state primarily, and lastely of the Federation (nee Republic), which can by agreement limit the powers thereof at the will of “the people”, but in any event has no sovereignty not granted to it specifically by the Constitution. Thats what the two “forgotten” amendments spell out.
– That we’ve evolved in government to such a heavy dependency, in the financial and social fabric of our society, while pragmatically neccessary, in no way changes the truth of things.
– Finally its important to remember that a lot of things take place in the practical process, that have neither codification nor legality in the strictist sense of the words, (the death penalty). In that regard our system is unique in all the world. It seems to be able to safeguard those things neccessary to liberty and prosperity, adjust as sociatal mores evolve (civil rights), and obsorb encroachments on our liberties at times, (conscription), without sintering. And yet, proficious for some 200+ years, the experiment continues.
Wheew buddy! The Colossus- indeed! I love to drop in here and give my brain cells an ephedrine blast every now and then. Okay they’re both awake now. Outstanding analysis Jeff, Ardsgaine and the ever illustrious Colossus. You guys Rock!
Collosus – As interesting and usefull as it would be to know Usama’s internal thinking, I’m not at all sure its clear to anyone, at least no one I’ve read on the subject, as to how much he is driven by pious reasoning versus simple jealosies or vengence from being disowned.
Colossus,
I agree that the concept of individual rights works, but that isn’t enough for those with a medieval approach to religion. What you and I see as “working” looks to them like decadence, sinfulness and heresy. “Working” to them means following the word of God so as to be assured a place in Heaven. Happiness and success in this life are irrelevant. They may, in fact, be evidence of sinfulness.
In order to be falsified by experience, an ethical code must make claims about its benefits in this world. From the religious viewpoint, if one is suffering in this world, it is because God is punishing him for failing in his righteousness, or God is testing his righteousness, or for some other greater purpose beyond his ken. His suffering doesn’t, however, prove that the ethical code is wrong. It is what God wants, as revealed by his prophet, etc. The benefits of a religious moral code are all in the next world, and one must maintain one’s faith impervious to adverse experience in order to reap those benefits.
Our Founders, as you point out, had a different view of things. They believed that a man must be guided in this world by reason. God, being impersonal but benevolent, had arranged the world so that Man could live well by using that faculty with which he alone among the animals had been blessed: rationality. The universe is such that man can comprehend it, and make use of his knowledge to alter his world to his benefit. The proof of a man’s virtue, then, was in the prosperity and happiness which he achieved by his own efforts. Failure, if it was not due to unforeseeable circumstances, was an indication that he was not ordering his affairs as a man ought to.
It’s a short step from deism to atheism, though, and the US underwent a reaction against irreligion in the Great Awakening of the 1820s. Although Americans pulled away from deism and atheism, they retained the idea that God wants them to be happy in this world. It is not really a Christian idea, it’s part of our Enlightenment heritage. It’s an assumption that cuts across our entire culture, religious and not-so-religious. We all believe in the pursuit of happiness as the goal of life. It makes us largely incapable of understanding the viewpoint of the Islamists, their fanatical hostility to everything which we believe makes life enjoyable: sex, art, wealth, luxury, freedom. The presence of these things in our culture doesn’t prove to them our superiority, it is what marks us as infidels.
There is one claim, though, that their ethical code makes about this world: Faithfulness to Allah must give them victory over us. Allah could never allow the defeat of his faithful. That’s a claim we can falsify, but to drive the lesson home the victory must be overwhelming and complete.
– Problem is Ard, their dogma has incorporated one twist that, on the face of it, wuold appear to be impossible to counter. They’ve removed, via transformation from a virtue to a sin, one of the fundemental parameters of all Western social enterprise, “self preservation”.
True, but the purpose of martyrdom is to achieve victory. If it still results in defeat, then there’s a problem.
And the desire for self-preservation isn’t dead in all Muslims. That’s the one distinguishing feature of the “moderate Muslim”: He’s in no rush to meet Allah. I think there are far more Muslims who are like that than there are willing martyrs, but self-preservation prevents them from saying so. When we’ve sent the others on to Allah, then we’ll be able to have a productive conversation with the ones who are left about the necessity of freedom for the pursuit of happiness.
I agree with this description completely, which should also protecty the right to possess honestly aquired wealth and property. Unfortunately that doesn’t seem to be the case.
The inalienable/unalienable rights listed in the Declaration are life, liberty and the pursuit of happiness. When we get to the Constitution, in the First Amendment we find freedom of speech, of religion, of the press, to assemble and to petition.
But we restrict all of those rights in some form. The right to life is very restricted if you haven’t been born yet, and even if you have, with “due process of law,” you can lose your right to life. We don’t allow religious freedom to the extent that people can claim a religious right to use illegal drugs or fornicate with children.
It can be claimed, as we like to claim, that our rights are rights granted by God, but the fact is that we restrict those rights in ways God has never instructed us to do.
Dana:
Go ahead and restrict. It’s ok.
God
Ric,
To expound somewhat on your take, “Law is the minimum of morality that man needs to cohabit with man.”
I have always thought of the man alone in the forest in this vein. That he needs no law to govern him until he has a neighbor. That is why I look at laws enacted that restrict an individual’s behavior regarding his own self as non sensical. Only when one interacts with another are laws regarding those actions necessary.
The difference is 45cal ammunition.
But you are right and wrong about unalienable rights in the Constitution. The Constitution does merely recognize unalienable* rights, and conceives of government as primarily for their defence. Nevertheless, the mechanism clearly exists to take away inalienable rights, as is the case with the 16th and 19th Amendments (in case I got them mixed up, the one establishing the income tax, and the one establishing Prohibition). But in that case, both the Constitution and the Declaration acknowledges the rights of individuals to defend their rights in extra-governmental ways should the need arise. As an interesting footnote to that, go read the often overlooked section of the Declaration of Independence that lists the colonists’ grievances against the Crown. Very few of those practices so decried by our Forefathers are now forbidden our government.
*Actually, you might want to check the entire document to see if the spelling is consistent. Both our founding documents, due to the lack of consensus on spelling at the time, are rife with inconsistencies.
So when you’re trying to sort out unalienable rights from the faux-rights being advocated today, that’s the touchstone: could a person alone in a forest exercise the “right�
No. He is unable to exercise the right because he is quickly eaten by a bear. Otherwise he starves to death. He is illiterate, and thus incapable of understanding the concept of “rights”. And he has no children, because he is alone, so whatever rights he does or does not exercise will die with him.
The person alone in the forest is a totally idiotic starting point for any philosophical thought, because human beings do not live alone in forests and never have, from the very beginning of the species. We are social animals. Your theory of rights might be a good one – for tigers.
“We cannot run with the birds and animals.
If not with my fellow humans, with whom should I live?” – Confucius, “Analects”
Well, actually the rights are alienable by government with due process of law. John Wayne Gacy doesn’t have the right to walk the streets anymore, does he? If his rights were inalienable, then he’d still be walking around. He had that right taken away from him by the state because of his misdeeds against people in the community.
Brooksfoe: bullshit!
The man alone in a forest need not live there; he may have gone there on vacation from his job at the Ministry of Truth. Interpreting it as you did is an automatically raised sign that you, personally, intend tyranny, whether you are consciously aware of it or not.
B Moe: Unfortunately not.
The “right to private property” is a social construct, extrapolated from the right to personal property, which is itself derived from and part of the right to the fruits of one’s own labor. It turns out to be a Helluva useful social construct, but unfortunately for Libertarians of a Propertarian bent it is not an inalienable right. There are a number of such; I think of them as “utilitarian rights”, because they are useful for constructing a successful society but are not basic. If you have a better terminology, trot it out
Brooksfoe has the right foundation but a totally wrong construction upon it: human beings work much better as part of a society, but to be part of a society requires that we refrain from exercising certain of our inalienable rights (or, at least, refrain from exercising them to the fullest). The difference between that and what the Leftist/elitist/patronist viewpoint requires is that for a truly successful society all such yielding of rights has to be mutual and voluntary—if the Big Man (or the Big Organization) decrees it, it’s unjust from the get-go.
Regards,
Ric
So I gotta get permission from brooksfoe’s bear to build a tree-house in the woods?^^