ABSTRACT

A War of Freedoms: Addressing Modern American Rights Talk

Connor W. Mighell

Director: David D. Corey, Ph.D.

Modern American rights claims spring from a wide array of historical, legal, and metaphysical sources, but these different sources often lead to radically different ideas about which rights are most important. This confusion within American “rights talk” has led to the assertion of conflicting rights in the public square and a corresponding political entrenchment by opposing sides. I study the current state of American rights talk by arguing that rights are essentially “protective capsules” placed around various freedoms that modern liberal society finds essential, but which are in many instances incompatible due to the evolving nature of liberalism itself. I also examine the difference between positive and negative liberty, and the importance of a proper understanding of liberty to a proper understanding of rights. Given the reality of conflicting liberties, citizens today need to engage in sustained political discourse to determine which freedoms are worth armoring as rights and which are not. I also recommend a return to the negative, true understanding of liberty.

APPROVED BY DIRECTOR OF HONORS THESIS:

______

Dr. David D. Corey, Department of Political Science

APPROVED BY THE HONORS PROGRAM:

______

Dr. Andrew Wisely, Director

DATE: ______

A WAR OF FREEDOMS

ADDRESSING MODERN AMERICAN RIGHTS TALK

A Thesis Submitted to the Faculty of

Baylor University

In Partial Fulfillment of the Requirements for the

Honors Program

By

Connor Mighell

Waco, Texas

May 2015

TABLE OF CONTENTS

Acknowledgements ...... ii

Chapter One: Rights Talk Today ...... 1

Chapter Two: Rights and American History ...... 17

Chapter Three: Liberty and Rights ...... 30

Chapter Four: Examining Rights Claims ...... 48

Chapter Five: Rights and the “Dogmatomachy” . . . . . 63

Appendices ...... 81

Appendix A: Alan Dershowitz’s List of Conflicting Rights . . . 82

Appendix B: Full List of Rights Claimed in the Universal Declaration of Human Rights ...... 84

Bibliography ...... 88

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ACKNOWLEDGEMENTS

I would like to express my deepest thanks to Dr. David Corey, for the hours of guidance and aid in editing that he provided. His mentorship has proven invaluable throughout this process. I would also like to thank Dr. Stephen Shipp, who first awakened in me a love for political philosophy in high school, and my mother, who taught me to write with precision and clarity.

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CHAPTER ONE

Rights Talk Today

In our daily conversation and interaction, we speak of rights as though we know

what they are. However, upon closer examination, we observe that many influential

thinkers whom we cite in favor of our own views have held widely differing emphases

and definitions of rights. While the United Nations holds that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,”1 characterizing

rights as universal and applying them in policy primarily to oppressed groups rather than

individuals, Ayn Rand emphasizes that “those who deny individual rights cannot claim to

be defenders of minorities.”2 To those who assert, as John Locke does, that our basic

rights emerge from nature itself,3 utilitarian Jeremy Bentham returns that “natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense – nonsense

upon stilts.”4 And to all prognosticators on the subject, Friedrich Nietzche delivers this

aphorism: “No one talks more passionately about his rights than he who in the depths of

his soul doubts whether he has any.”5

1 “The Universal Declaration of Human Rights,” UN News Center, accessed September 18, 2013, http://www.un.org/en/documents/udhr. 2 Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet, 1967), 61. 3 John Locke, Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New Haven: Yale UP, 2003), 104. 4 Jeremy Bentham, “Anarchical Fallacies: Being an Examination of the Declarations of Rights Issued During the French Revolution,” Duke University, accessed June 8, 2014 http://english.duke.edu/uploads/media_items/bentham-anarchical-fallacies.original.pdf, 5. 5 Friedrich Nietzche, Human, All Too Human: A Book For Free Spirits, tr. R.J. Hollingdale (Cambridge: Cambridge UP, 1996), 191.

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Modern Americans hold views that are just as diverse as the ones expressed above, each with unique professed grounds and bounds for rights. In fact, we not only differ on the foundation of these rights, but on their kind as well. Are rights merely legal constructs of our government? Are they divine gifts, meant to be safeguarded as though they were a religious sacrament? Do they emerge from the natural order of the universe, or from human nature? Do members of some social groups, genders, or races have rights unique to them?

Not only the grounds and types of rights are up for debate, however, as there is also much conflict over the history of the concept of rights. Did rights emerge from the

Roman tradition of ius, as some academics argue, or from the conciliar movement of the

1400s and the Thomistic resurrection of the Aristotelian tradition? Alternatively, was the idea of “right” first expressed in its modern form during the era of the Renaissance and

Reformation, or did it first flower later, in the Enlightenment? Or do rights have a much more ancient origin, evolving out of the very beginning of society?

This work proposes to confront the divergent array of asserted sources, types, and

histories of rights and to make some cohesive sense of it by approaching it from the

overarching perspective of freedom. In this chapter, I will take up the first task and

classify some of the major ways that we view rights in our modern culture.

For much of the modern western world, conceptions of rights expressed in

international documents are rooted in the common humanity of all peoples. Merely by

virtue of our human nature, various documents claim, we possess certain rights that

cannot be justly removed from us. This concept shows up in the papal encyclical Pacem

in terris, when Pope John XXIII declares:

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Any human society, if it is to be well-ordered and productive, must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.6

The Pope goes on to outline exactly what these “rights and obligations” are, pulling to a large extent from the United Nations’ Universal Declaration of Human Rights.7

However, while that document is intended to regulate disputes among nations, Pacem

claims that several of its rights emerge from “the natural law” or from “the dignity of the human person.”8 With these rights come corresponding duties. For instance, Pope John

claims that “the right of every man to life is correlative with the duty to preserve it.”9

Ultimately, Pope John calls for men in society to respect and acknowledge the rights of

others, creating a vision throughout the rest of Pacem of an organized, peaceful, and united world living by this creed.

Pope John clearly believes, like others in the modern human rights tradition, that due to their nature as intelligent beings with free will, individuals have entitlements to the

possession of some basic goods. I will refer to rights with this asserted ground as

“human rights,” and to thought regarding them as human rights theory, because they are founded on what theorists believe to be the essential attributes of human nature, including the power to reason and the hypothesized original human state of freedom from social constraints. This school of thought on the foundation of rights has only recently come

6 “Encyclical Pacem in Terris of John XXIII, 11 April 1963,” The Holy See, accessed July 28, 2014. http://www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j- xxiii_enc_11041963_pacem_en.html, 9. 7 Almost directly at points. Compare “Universal Declaration” Article 13 and “Encyclical Pacem” 22. 8 “Encyclical Pacem,” 12, 13, 18, 20, 21, 23, 26. 9 “Encyclical Pacem,” 29.

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into prominence, paralleling the rise of Western democracy, individualism, and

progressivism. Linchpin writings that conceptualized rights as grounded in individual

humanity include the French Declaration of the Rights of Man10 and the more recent

Pacem in terris and the aforementioned Universal Declaration of Human Rights. The recent resurgence and current dominance of this explanation for rights in the West may well result from increased international interaction in the wake of the World Wars.

Arching over the ground-level concerns of culture, human rights theory creates a universalized ground for rights that would theoretically be acceptable to the majority of countries around the globe (since most humans do indeed feel that they are something unique and worth preserving), thus fostering cooperation. This realization of the concept of rights may also have initially emerged due to moral outrage at the Holocaust, as the

West reacted against the evils of genocide.

It is worth questioning, as theorist Michael Freeden does, whether human rights are as all-encompassing as modern thinkers posit. Freeden eschews entering the roiling waters of the human rights debate, making the intelligent distinction that “to assert that human beings have rights is not identical to asserting that they have human rights.”11

Freeden seems to support an alternative position, that “human right are the most basic, pertaining to what is essentially human, while other categories of rights are more specific, limited and, normally, derivative.”12

Pope John also recognizes a second identifiable ground for rights in Pacem called

“natural law.” The Universal Declaration of Human Rights contains no reference to

10 “Declaration of the Rights of Man – 1789,” Avalon Project, accessed June 16, 2014, http://avalon.law.yale.edu/18th_century/rightsof.asp. “Men are born and remain free and equal in rights.” 11 Rights (Minneapolis: University of Minnesota Press, 1991), 6. 12 Ibid.

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such a thing, and neither does the much newer Canadian Charter of Rights and

Freedoms, which is also founded primarily on the human rights paradigm. Pope John’s successor, Pope Paul VI, also addressed this concept of natural law five years after

Pacem, in Humanae vitae.13 In this context, it refers to a ranking of goods and purposes

morally based on the dictates of God, handed down through Scripture. The concept of natural law goes back further, however, since it does not necessarily depend on the veracity of Scripture or church teaching, but only requires the existence of a divinity that is somehow involved with nature.14 One of its fullest statements emerges in the writers of the Roman Stoic tradition. They viewed the world as a well-ordered arrangement operating according to a set of natural principles.15 Within the universe, there is a place for everything, and a manner in which it ought to act. It would be morally wrong for a

human being to violate one of these natural precepts, or to attempt to thwart or pervert it in some manner. The moral imperative attached to purpose is unique to human activity, because only humans are capable of natural choice. In a broader sense, this is the tradition to which Pope John is referring. Thus Pacem makes the bold claim that to deny someone rights is to violate the natural order itself. I will follow many scholars by terming such rights “natural.”

13 “Humanae Vitae (July 25, 1968),” The Holy See, accessed September 19, 2014, http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae- vitae_en.html, secs. 4 and 11. 14 The Christian Scriptures themselves make this point clear, when the Apostle Paul speaks of the natural world as evidence for God’s existence which God has made available to everyone. See Holy Bible: English Standard Version (Wheaton: Crossway Bibles, 2001), Rom. 1:19-20. 15 M. Tullius Cicero, “De Officiis,” Constitution Society, accessed July 28, 2014, http://www.constitution.org/rom/de_officiis.htm, IV.11-14. Also Marcus Aurelius, “The Meditations,” The Internet Classics Archive, accessed July 28, 2014, http://classics.mit.edu/Antoninus/meditations.2.two.html, II.3.

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While certain early Enlightenment thinkers like John Locke are often claimed by

human rights thinkers due to their strong humanistic tones, these theorists are more at

home in the “natural rights” category of thought. Although Locke does claim that certain rights inhere in the human nature of some persons so closely that to arbitrarily take them away is practically to remove the person’s humanity and enslave them,16 the ultimate ground which he provides for rights is based on the Christian Scriptures, which speak of

man as created by God.17 Within the Christian tradition, God was responsible for the

creation ex nihilo of everything in the universe, including human beings, and ordered his

creation through established natural precepts. This position lends itself well to compatibility with natural rights theory.

However, as with the human rights school, adherents to natural rights theory are

conflicted as to which rights are truly natural. Is Pope John referring only to the rights

that have an appellation in Pacem about their roots in natural law, or is he making a

broader claim about all human rights by continually referring to natural rights throughout

Pacem? Indeed, it has become fashionable of late to say that certain rights are

“fundamental,”18 and by this term people seem to understand that the right attaches

somehow definitionally or primally to human existence. But does this mean that

“fundamental rights” really are a synonym for “natural rights?” What of the Declaration

16 Locke, 110. 17 Ibid., 102. Also see David C. Snyder, “Locke on Natural Law and Property Rights,” Canadian Journal of Philosophy 16:4 (1986): 729. 18 For two such examples, see the language of section 2 of the “Canadian Charter of Rights and Freedoms: Constitution Acts, 1867 to 1982,” Legislative Services Branch, accessed July 7, 2014, http://laws- lois.justice.gc.ca/eng/const/page-15.html. More recently, the Supreme Court has stated that “the decision to marry is a fundamental right” in Turner v. Safley, Supreme Court of the United States, 482 US 78 (1987).

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of Independence’s “inalienable rights?” Are these rights “natural?” Again, we observe

the confusion of concepts and terms so prevalent in modern rights talk.

Finally, people often assert a civil ground for rights. Rights so conceived and

held can be instrumentally used within a certain society for good or evil purposes, and

thus differ from rights grounded in humanity, which are more universal, and naturally

grounded rights, which are directed toward the preservation of some pre-social good.

These stipulations are mostly dependent on the government involved in their use. Civil rights are provided to the people of a state by the government of the state, by virtue of citizenship within it, and may include the right to vote, the right not to be defamed, the right to a jury of one’s peers, and so on. Many civil rights come with “strings attached” – prior stipulations and subsequent regulations – as in the Canadian Charter of Rights and

Freedoms. This bill of rights attached to the Canadian Constitution begins with one very important principle which affects all the others: it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”19 In other words, the civil rights of Canadian

citizens can be subject at some times to the decisions of the Canadian government. The

Constitution of the United States, on the other hand, limits the power of the government

to abridge the civil rights that it guarantees to its citizenry by restricting the government

to the specifically outlined powers that the document grants it.20

In any of these rights schemes, the rights asserted may be differentiated further.

Sometimes, when theorists use the word “right,” they mean to signify entitlements to the

19 “Canadian Charter,” 1. As a side note, it is interesting that the document does distinguish between “rights” and “freedoms“ – a distinction that will be made clearer later in this work. 20 “Constitution of the United States,” Constitution for the United States, accessed July 9, 2014, http://constitutionus.com, Article IX and Article X.

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possession of a good by an individual or group. In other instances, theorists will use

“right” to constitute a stipulation that a good already possessed ought not to be taken

away without due cause.21 Upon further examination, we find that many asserted civil

and human rights take the former form, while natural rights are often expressed in the

latter format. Regardless, it is worth noting that all asserted rights, whatever they may

be, imply a moral “ought” – if the right truly exists, then no one should violate it.

This completes our examination of the three major currently cited grounds for

rights: human, natural, and civil. But talk about rights in our common discourse also

varies based on the types of rights that are primarily or specially asserted. Hohfeld’s

fourfold division contained in his Fundamental Legal Concepts As Applied In Judicial

Reasoning is one of the most frequently cited attempts to classify types of rights.

Endeavoring to lay out a system of “accurate thought and precise expression as

regards basic legal ideas,”22 Hohfeld proposes four kinds of relationships between rights- bearers and rights-addressees:

1. A liberty which a person or definite group has to perform an action, in the absence of a duty toward another person or definite group not to perform that action. 2. A claim by a person or definite group to something which is to be provided by another person or definite group, where the latter person or group has a duty toward the first to provide the thing claimed. 3. A power held by one person or definite group to bring about some consequence for another person or definite group. 4. An immunity where some person or definite group cannot have some action done to them by another person or definite group, which thus has a disability.23

21 Theorist E. Calvin Beisner examines this idea in “Biblical Justice vs. Social Justice,” accessed September 28, 2014, http://www.ecalvinbeisner.com/freearticles/bibjusvssocjus.pdf. Here, he differentiates between positive rights as “rights to certain benefits” and negative rights as “rights against harm” (11). 22 Wesley N. Hohfeld, “Fundamental Legal Concepts as Applied in Judicial Reasoning,” Yale Law School Legal Scholarship Repository, accessed July 28, 2014, http://digitalcommons.law.yale.edu/fss_papers/4378, 710.

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After this broad treatment, Hohfeld next examines rights in their most limited or

narrow sense as a claim that signifies the opposite of a duty.24 He proposes a distinction

between these claims as related to whether they are in personam or in rem, as well as

whether they are affirmative or negative in nature. In personam rights reside in a person or group and are held against another single, definite person or group, while a right in rem consist of a set of claims which are similar, yet separate, held out by one person against “a very large and indefinite class of people.”25 In rem rights, which he also calls

“multital,” are applicable against both actual and potential persons. As an example, if I own a piece of land, not only my neighbor but also “a great many other persons” are barred from entering and using that land – in other words, I have a right to determine

whether they have leave to enter.26

This division of rights by type is promising, but Michael Freeden points out that as a definitive classification it still has two flaws: it “makes no attempt to clarify why

people should be thought to have rights, or what the function of a right is.” The insufficiency of this mode of definition thus makes it inadequate as a complete way to

examine rights; yet it is helpful as a way to distinguish what people mean when they use

the word “right.”

I will now examine the widely differing perspectives contained within modern

American rights talk. While moderns do indeed differ on the grounds for rights themselves, they also differ on how we ought to view rights as a whole, and how we

23 Paraphrased from a discussion of Hohfeld’s work in Freeden, Rights, 4. 24 Ibid., 717. 25 Ibid., 718. Hohfeld notes in footnote 20 of his essay that not all rights by themselves are general, but that duties attached to such rights are. “The right of a person not to be struck by another is both multital and general.” 26 Ibid., 719.

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should legislate or act in relation to rights. Two positions on this issue are most

prevalent, but they do not necessarily correspond to differing ends of the political spectrum, and are not always conflicting or diametrically opposed. I will generally state their positions here and name theorists who have held these positions.

The first and most prevalent by far holds that a basic set of positive rights, specifically human rights, ought to be guaranteed by the state to all citizens as civil rights. This idea has been articulated in various ways, but most commonly as following from the rather circular-sounding “right to have rights.”27 Those who hold this view of

rights often reference the previously mentioned Universal Declaration of Human Rights,

the French Declaration of the Rights of Man, and authors of the classical or modern

liberal tradition, including Locke, Rousseau, and Rawls. As such individuals are often

the quickest to hold that certain goods are (or ought to be) protected by rights, I term such

individuals “expansionists.”

Expansionists include a subset in American rights talk that ought to be especially

noted. They are indeed committed to the expansion of rights, but for differing reasons.

This group ties rights very strongly to the Constitution of the United States, The

Federalist Papers, and the varied works and writings of American founding fathers.

While they speak of natural rights, they do not mean them in a negative manner, but

rather hold them as goods due based on the natural order (which they frequently

characterize as divinely ordained) and which all persons ought to have the positive

opportunity to acquire—goods which include everything from free expression to

economic security. In relation to America, the government ought to make sure that no

27 Hannah Arendt, The Origin of Totalitarianism (New York: Harcourt Books, 1994), 296.

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citizen of the United States will be excluded from this opportunity. Many members of this subset believe that America is special, divinely blessed, or exceptional due to its divine guidance and inherently Christian founding as a haven for Western civilization and liberty, from which they draw support both for America’s system of republican civil government and its capitalist economic system as the best ways to enable the pursuit of rights. In this way, adherents to this theory blend the concepts of natural and civil rights.28

These “exceptionalists” frequently disagree, often in strident tones, with

mainstream expansionists over which rights are more important and to what degree

certain goods ought to be guaranteed by the government. Such disagreement over the

importance and feasibility of certain asserted rights makes up most modern political

discourse. Speaking generally, in America, rights expansionists tend to side with the

Democratic Party and adopt a political persuasion that many call “liberal.” Rights

exceptionalists gravitate toward the Republican Party and are termed “conservative.”

Meanwhile, a rising libertarian trend in the country attracts followers from both sides due

to their dislike of arbitrary power and permissive outlook on both economics and social

values.

The third and final group of those who speak about rights as a whole are much

fewer in number now than they were even a generation ago. I call these individuals

“conservers,” since the scope of rights they recognize is quite narrow by modern standards. They hold that those things that are commonly called rights – namely, positive

28 Two recent works based on this theory are W. Cleon Skousen, The Five-Thousand Year Leap: Twenty- Eight Ideas That Changed The World (Salt Lake City: Freemen Institute, 1981), and Matthew Spalding, We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future (Wilmington: ISI Books, 2009).

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rights claims – should not be termed rights at all. Rather, the only true rights are a small

set of negative rights – such as the right not to be killed without just cause – and the

government’s job is to safeguard its citizens’ enjoyment of them. They also claim that

positive rights are assertions of entitlement to some good thing, but do not constitute rights at all, even if the government chooses to affirm the entitlement by calling it a civil right. This is due to the fact that rights are grounded in an extra-societal, objective natural order that exists independent of governmental sanction. If all positive rights were to be affirmed and civilly enshrined in an effort to secure full equality for all, it could have a baleful effect on society, political order, and human relationships.29 Thus, unlike

exceptionalists, conservers do not necessarily combine natural and civil rights grounds.

A right may exist without civil codification, recognized only by society in the form of mores or manners, but civil protection of rights does increase human happiness and flourishing. Due to the complexities of the natural order, it can often be difficult to determine whether a negative right exists in a given situation. Furthermore, since the word “right” is often taken to have a positive meaning in modern speech, conservers can be inherently circumspect when using the word “right” for fear of being misunderstood.

All three of these common perspectives share one critical feature: they endeavor

to gain governmental affirmation of and protection for a portfolio of rights. This would

have the effect of making rights fixed and secure for all humans to hold, as opposed to an

ungoverned society in which the ability to exercise one’s rights depends largely on

personal might or social sway.30 However, it also has the effect of limiting the right by

29 Antonio Carlos Pereira-Menaut, “Against Positive Rights,” Valparaiso University Law Review 22 (1988), 364. 30 Locke, Two Treatises, II.§7 and III.§21.

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making it civil, and thus subjecting it to governmental regulation and control. In the

United States, the security sought by converting an asserted right into a civil right is most

often accomplished through legislation.31

This distinctly American relationship between law and rights is what led Mary

Ann Glendon to comment that “Americans today, for better or worse, live in what is

undoubtedly one of the most law-ridden societies that has ever existed on the face of the earth.”32 American citizens tend to equate what is legal with what is legitimate or right

due to this correspondence between rights and law. Unfortunately, given the aforementioned abstract ways in which Americans speak about rights, translating certain

rights into policy is frequently problematic for two reasons.

Firstly, Glendon points out that American rights talk lacks the requisite language

of duties that Pope John Paul II references in Pacem in terris.33 Put simply, duties are one way of referencing the “moral ‘ought’” attached to rights. For instance, if a person has the “right to life” by virtue of his very personhood, we should hold that that same

person has a corresponding duty not to deprive any other person of life. In a chapter

entitled “The Missing Language of Responsibility,” Glendon cites a survey that shows

that American youth have a good grasp on their rights but do not possess a concept of

personal, communal, or political duties.34 Voting is a rarely exercised civil right,35 and

31 Though the Supreme Court often attempts to extend the pantheon of civil rights by its decisions, only Congress can provide the legal structure necessary to protect the rights the Court trumpets. 32 Rights Talk: The Impoverishment Of Political Discourse (New York: Simon & Schuster, 1991), 2. 33 “Encyclical Pacem,” 28-30. 34 Glendon, Rights Talk, 76. 35 “Voter Turnout,” FairVote, accessed July 28, 2014, http://www.fairvote.org/research-and-analysis/voter- turnout/. “Voter turnout in the United States fluctuates in national elections, but has never risen to levels of most other well-established democracies…in the U.S., about 60% of the voting eligible population votes during presidential election years, and about 40% votes during midterm elections.” Incidentally, it can be debated that voting is actually a civil duty as well as a civil right.

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absent a special relationship that requires an exchange of responsibilities, “the law treats us as ‘strangers’ to one another.”36 Glendon goes on to contrast the European duty to rescue those in need with the Supreme Court’s pronouncement in DeShaney v.

Winnebago County that the Constitution does not obligate the government to assist those

in distress.37 The danger is that in continually asserting rights, we may forget the duties

that attend them.

More significantly, however, the idea that civilly codifying all rights so that they

can be protected for human use runs into significant problems when one considers that

certain asserted rights inevitably conflict. This phenomenon gives rise to political

conflict and an impassable war of ideology in a Western social order where rights reign

supreme. Alan Dershowitz lists multiple instances of conflicting rights in Rights From

Wrongs, including the “right to smoke” and the “right not to be subjected to secondhand

smoke,” the “right to proselytize” and the “right to be free from proselytization,” and lastly, the “right to know of sex offenders in [your] neighborhood (Megan’s Law)” and the ubiquitous “right to privacy.”38 The conflict produced by the competing assertions of

these rights and many others is a major factor (and quite possibly the primary one) in the

36 Glendon, Rights Talk, 77. 37 Ibid. While Glendon seems to imply by her rhetoric that our difference from Europe somehow means that we are behind the times or on the “wrong side of history” in our lack of a formal duty to rescue, I disagree. The fact that our law does not contain such a duty does not mean that Americans will predominantly ignore the plight of those in need, as the massive amount of charitable giving and government aid that America provides regularly evinces. The Giving USA Foundation estimated that charitable giving in the United States amounted to $316.23 billion in 2012 alone. See “Charitable Giving in America: Some Facts and Figures,” NCCS, accessed July 28, 2014, http://nccs.urban.org/nccs/statistics/Charitable-Giving-in-America-Some-Facts-and-Figures.cfm. Moreover, U.S. foreign aid and assistance to foreign militaries, though less than 1% of the overall federal budget, still weighed in at $37 billion for 2013. See “How Much Foreign Aid Does the U.S. Give Away?,” National Priorities, accessed July 28, 2014, https://www.nationalpriorities.org/blog/2013/05/06/how-much- foreign-aid-does-us-give-away/. 38 Alan Dershowitz, Rights From Wrongs (New York: Basic Books, 2005), 167-168. A full list of these conflicting rights can be found in Appendix A.

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increased acrimony and partisanship within the American polity that has reared its head over the last several decades. Rights conflicts also encourage the adoption of more and more extreme political views among the populace and consequently their representatives, as one group of people claim that the right that the other group asserts is unimportant or even nonexistent, and the politicians adopt similar rhetoric in order to stay in office.

Since Americans see the law as a standard of social right and wrong, legislating in order to “guarantee” a right to all citizens is viewed as a way to enshrine it - to “make the right right,” as it were. Some recent examples of conflicts over rights include the Affordable

Care Act (ACA) and its corresponding “right to healthcare,”39 the “right to marry” which has entered a resurgence lately thanks to recent court decisions on the constitutionality of same-sex unions,40 and the “right to life” which is so frequently asserted by Americans opposed to abortion.41

Given these issues, I aim to answer the following questions: What are these things called rights which we so passionately assert in American culture and political discourse, and which we find so invaluable to our national heritage? For that matter, is there any

39 Scott Wilson and Ovetta Wiggins, “Obama Defends Health-care Law, Calls Coverage ‘a Right,’” Washington Post, September 26, 2013, accessed July 28, 2014, http://www.washingtonpost.com/politics/obama-defends-health-care-law-calling-health-insurance-a- right/2013/09/26/9e1d946e-26b8-11e3-b75d-5b7f66349852_story.html. “In the United States, health care is not a privilege for the fortunate few, it is a right.” 40 Bostic v. Schafer, 760 F.3d 352 (4th Cir. 2014). “Because we conclude that Virginia’s same sex marriage bans infringe on its citizens’ fundamental right to marry, we affirm.” Also Ryan T. Anderson, “Court Rules Marriage Must Be Redefined Under 14th Amendment. Why That's Wrong,” Daily Signal, June 25, 2014, accessed July 28, 2014, http://dailysignal.com/2014/06/25/court-rules-marriage-must- redefined-fourteenth-amendment-thats-wrong/. “Of course the Fourteenth Amendment protects the fundamental right to marry—but the Supreme Court decisions that established a fundamental right to marry understood marriage as the union of a man and a woman.” 41 “National Right to Life Mission Statement,” National Right to Life, accessed July 28, 2014, http://www.nrlc.org/about/mission/. “The mission of National Right to Life is to protect and defend the most fundamental right of humankind, the right to life of every innocent human being from the beginning of life to natural death.”

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way to discover which asserted rights ought to be considered rights? Finally, how can we best understand the importance of some rights in relation to others? In the next chapter, I will survey American thinking on rights throughout history, in order to provide our search for answers to these questions with a firmer footing.

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CHAPTER TWO

Rights and American History

Before I examine the state of modern rights in American culture, I must define my

most important terms. What, after all, is a right? Given all of the wrestlings with the concept of rights which I have described in the previous chapter, a definition of rights must be found which bridges these differences. After examining one such definition, I will answer a narrower question: how firm have the protections afforded by rights been understood to be throughout American history?

Approached as a philosophical matter, Michael Freeden provides perhaps the

most promising definition of rights as

a conceptual device, expressed in linguistic form, that assigns priority to certain human or social attributes regarded as essential to the adequate functioning of a human being; that is intended to serve as a protective capsule for those attributes; and that appeals for deliberate action to ensure such protection.1

This formulation sufficiently satisfies expansionists, exceptionalists, and conservers

alike, because it describes the components which all rights generally share, rather than falling into the temptation of explaining their ground or source.

Freeden also has a more intriguingly optimistic perspective on the range of asserted definitions of rights, calling it “broad and illuminating in its different implications and ideological positions.”2 As previously noted, Freeden considers human rights to refer to the most basic subset of rights, with other more limited rights

1 Freeden, Rights, 7. Freeden includes several pages fully and meticulously explaining this definition directly following it which are highly helpful. 2 Ibid., 6.

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descending from them. To claim a “right,” then, “is to employ a type of emphatic shorthand to indicate that some attributes or values ascribed to human beings are of overriding importance and may, or even should, be preferred over other attributes or

values.”3

To simplify his definition further, Freeden holds that rights are a way of safeguarding and signifying through speech certain things that are essential to human life.

Freeden regards rights as that which protects things essential for merely adequate human

living, but not necessarily human flourishing or happiness. These rights must also be socially protected, and this protection can be formally legal, but does not have to be. As

Freeden himself later points out, we should “regard the relationship between rights and action as cemented through moral and/or legal obligations.”4

This definition can help us point out the crucial difference, incidentally, between

the three schools on rights which I previously addressed: each one of them holds differing views about which and how many objects are necessary for humans to live. Rights expansionists have a broader view about human necessity, thus identifying a wider swath of objects that rights must protect. Rights exceptionalists will favor rights that can be deduced from the text of the Constitution or from the Bill of Rights, which they believe are derived from a higher moral law. Finally, rights conservers would hold that people already hold certain goods by virtue of both their personhood and their social position and relationships, and that they have a right that these goods not be taken from them without just cause.

3 Ibid., 7. 4 Ibid., 8.

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However, Freeden’s definition brings up a far more interesting question that must be answered to understand both what rights are and how the modern state of rights came about. He notes that a right is a “protective capsule” placed around the attributes necessary for human functioning. Such attributes can be termed “goods” based not on what they are, but on what they accomplish. In America, however, our understanding of rights is slightly more nuanced – and rightly so. The Constitution’s guarantees of certain

freedoms to the American populace, known as the “Bill of Rights,” mostly consist of protective capsules surrounding spheres of liberty, in which people may pursue goods.

They do not, however, consist of blank checks for distinct items that the government must provide. Such versions of rights claims seem to have only entered the American

mindset recently, and are not directly itemized within the Constitution. On Freeden’s view, then, these rights claims are not nearly as secure as the rights guaranteed by the charter of the Bill of Rights.

Moreover, Americans have begun to view government as not only the guarantor

of the security of rights, but also as their initial provider. This trend may likely be a result of the previously noted American tendency to see the government as the arbiter of

moral right and wrong through the law. Americans who believe that the state is the origin of their rights therefore hold up Supreme Court decisions, Congressional legislation, and Presidential proclamation as evidence for the founding of their rights claims. While this tendency may appear stronger amidst rights expansionists, rights exceptionalists are just as susceptible to it.5

5 For one out of many examples, see Mark Levin, The Liberty Amendments: Restoring the American Republic (New York: Simon & Schuster, 2013).

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So on the original American reckoning, rights function as legally delineated

protective capsules for the ability to pursue certain goods, which we view as essential for

human living. Still, as I began to hint above, there is a deeper story at work in this

definition, one that spans history and provides an insightful way to view the progression

of rights talk in America. Freeden’s definition does not tell us what rights have been

thought to be in the American political tradition — and this is an essential thing to find

out, if I am correct in saying that Americans pursue the creation of rights guarantees

through law.

To understand this, I will focus my attention on the capsule of the right, not what

the right protects. How firm is this protective shielding, and how inviolable has it been

thought to be during different time periods of American history? Our investigation will

reveal that rights have evolved, have been made both more absolute and more universal,

whereas in the past, they were more qualified and tied in a much more direct way to past

institutions of tradition.6

In focusing on the perceived firmness of rights protections throughout American

history, we will have occasion to reference both modern and founding sources. Wherever

it is appropriate, I will use primary texts, though certain notable authors who have dealt

with rights in America in terms of their historical context will make an appearance.

One cannot understand the founding perspective on rights without first understanding how the British understanding of common law and its heritage influenced the concept. Russell Kirk provides a clear and concise treatment of this subject while

6 An objective proof for an answer to a question of this magnitude and scope would constitute an entirely new work, and would therefore be beyond the scope of this thesis. I will not be endeavoring to prove, but merely to illustrate.

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charting the origins of American culture through the four major cultural waypoints of

Greece, Jerusalem, Rome, and London in his excellent work The Roots of the American

Order. According to Kirk, “the law, which is no respecter of persons, stands supreme:

that is the essence of British legal theory and legal practice, and it passed into America from the first colonial settlements onward.”7 The British common law was deeply based

in reality, “derived from the man-to-man experience of people in community over a very

long period of time,” organically composed from years of tradition.8 While originally

unwritten and transmitted through custom, it eventually came to be written as legal

precedent and principle to guide future judges in making just decisions. Perhaps British

common law is best understood as “non-codified law,” not needing explication or ratification by Parliament or the Crown.9 Instead, common law took its cues from the

rules of stare decisis, respecting the decisions previous to it; it was a self-perpetuating

system of law, constantly building on itself.10 This facet of common-law meant that it

was “based on men’s experience over many generations, a good test of practicality.”11

The common law system thus had the advantage of longstanding tradition that reasoned from incidental, particular cases to originate broad rules of law.

Accomplished Revolutionary historian Bernard Bailyn affirms that Americans originally conceived of rights as “at one and the same time the inalienable, indefeasible rights inherent in people as such, and the concrete specification of English law.”12 This tie to a legal system particular to a time and place meant that rights were believed to be

7 Russell Kirk, The Roots of American Order (Wilmington: ISI Books, 2012), 183-184. 8 Ibid., 184. 9 Ibid., 185. 10 Ibid. 11 Ibid., 188. 12 Bernard Bailyn, The Ideological Origins of the American Revolution (London: Belknap Press of Harvard University Press, 1992), 77.

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more qualified, since they were in some sense linked to the rhythms of practicality and daily life.13 English common laws were accepted to be the definitive formulation of the subset of rights that had essentially mattered during British history. This colonial mindset has roots in the foundational English political document Magna Carta, where angered barons faulted the king for infringing on their “ancient liberties and free customs” and wished to have them guaranteed in law to prevent their subsequent violation.14 Specifically, Americans felt that acts of taxation imposed by the British

Parliament were instances of unfair representation and violated their common-law- backed rights as Englishmen. One can see evidence of this mindset in the Stamp Act

Congress’ Declaration of Rights. As those born under British government and in British territory, the colonists made a claim to “all the inherent rights and privileges of [the king’s] natural born subjects within the kingdom of Great Britain.”15

The works of the great jurist William Blackstone especially aided Americans in

developing their early ideas of rights, and led to a subtle yet groundbreaking shift in the

way Americans characterized rights. Blackstone arguably influenced America more than

Britain, as “most Americans with any interest in the law acquired their principal stock of knowledge of natural law, common law, equity, and ‘the chartered rights of

Englishmen’” from him.16 In fact, Blackstone’s Commentaries on the Laws of England

remained the major legal manual in American jurisprudence until about 1830.17

13 Kirk, Roots, 188. 14 “The Magna Carta,” Constitution Society, March 11, 2013, accessed April 3, 2013, http://www.constitution.org/eng/magnacar.htm, clause 13. The document also contains other clauses that can be read as statements of rights, including 36, 38, 39, 40, and 42. 15 “The Declaration of Rights of the Stamp Act Congress, October 19, 1765,” Constitution Society, August 19, 2012, accessed March 31, 2013, http://www.constitution.org/bcp/dor_sac.htm, 2d. 16 Kirk, Roots, 368. 17 Ibid., 369.

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Blackstone’s major contribution to rights theory is his novel blending of two natural law

traditions: one originating from Cicero and Hooker, the other from Grotius and

Pufendorf.18 He described this natural law as “dictated by God himself,” and thus

“binding over all the globe, and all countries, and at all times.”19 From natural law spring

“the absolute rights of man” (specifically personal security, personal liberty, and private

property), but these rights had limits when they were exercised and expressed within

society.20 Living within society meant protection for one’s rights, but in exchange for

such protection, in addition to the ability to engage in commerce with others, citizens

were required “to conform to these laws which the community has thought proper to

establish.”21 There is a distinct difference, then, between Blackstone’s idea of rights and the rights initially argued for by the American colonists: the “rights of Englishmen” depended on the support of English law, while Blackstone’s natural rights were inalienable and applicable to all, regardless of king or country.22

Blackstone’s formulation of rights in relation to a novel synthesis of natural law

tradition had a definitive impact as Americans began to assert their own self-sufficiency and independence. Indeed, in many ways Blackstone ushered in the modern era of rights talk in America by loosening rights from any particular state or earthly context. Many more radical pamphleteers began appealing directly to Blackstone’s concept of natural rights, as opposed to their expression through the British legal system. After the crisis

18 Ibid., 369-370. 19 William Blackstone, Blackstone’s Commentaries, with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, ed. St. George Tucker (South Hackensack: Rothmans, 1969), in Kirk, Roots, 370. 20 Ibid., 371. 21 Ibid., 22 For further information on this distinction see generally Guido de Ruggiero, The History of European Liberalism, trans. R. G. Collingwood (Boston: Beacon Press, 1964).

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over “taxation without representation” had deepened in 1772 Samuel Adams and the

Boston Committee of Correspondence began “The Boston Pamphlet” in this manner:

“Among the natural rights of the colonists are these: First, a Right to Life; secondly, to

Liberty; thirdly, to Property; together with the Right to support and defend them in the

best Manner they can.”23 Though the more representative First Continental Congress

appealed to the same three touchstone rights, they qualified them as tied to “the principles

of the English constitution, and the several charters or compacts” of the colonies themselves, which they considered their own expressions of natural rights.24 This

formulation was in step with the innovations of the 18th century natural law movement,

of which Blackstone was a part. Thus, according to this evidence, as the Revolution began the American colonists generally understood their rights as uniquely expressed

through the traditional system of British common law, so much so that “the Jeffersonian

Bill of Rights amendments were simply a reassertion of common-law principles.”25

However, the protection of the right was strengthened in the American mind by the

appeal to a higher standard of divinely given natural law, especially in the revered

Declaration of Independence, where Thomas Jefferson asserted on behalf of the Second

Continental Congress that all men were “endowed by their Creator with certain

unalienable Rights.”26

By the mid-1820s, all but three states had instituted universal white male suffrage,

leading to an unprecedented surge in political interest and the advent of “a sense of

23 Samuel Adams, “The Boston Pamphlet,” National Humanities Center, accessed December 4, 2014, http://nationalhumanitiescenter.org/pds/makingrev/crisis/text6/bostonpamphlet.pdf, sec I, ch III. 24 “Declaration and Resolves of the First Continental Congress,” Avalon Project, accessed December 4, 2014, http://avalon.law.yale.edu/18th_century/resolves.asp, Preamble. 25 Kirk, Roots, 187. 26 Thomas Jefferson, “The Declaration of Independence,” National Archives and Records Administration, accessed December 4, 2014, http://www.archives.gov/exhibits/charters/declaration_transcript.html, pgh. 2.

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definite political progress, which was summed up in the recurrent celebration of democracy as the best political system.”27 This shift toward the reverence of democracy

was accompanied by new political voices clamoring for broader freedom to exercise

rights, especially among the working class: “Beyond the extended political right to

suffrage, the priority was indeed the recognition of social rights for the working men, such as the ten-hour working day and the end of the imprisonment for debt, as well as the access to public education.”28 Armed with new power thanks to their ability to vote and

the rise of popular politics, this Workingman’s Party nevertheless continued to root their

assertions of these rights by appealing to history and tradition—but now one that was

distinctly American. The leaders of the Party called for citizens to “complete the

American Revolution, ‘interrupted in its progress,’” by extending more rights to common

men.29 This appeal for rights, occasioned by the broadening of political access, universalized rights in a new sense: by rooting their protections in an independent

American heritage and not the longstanding British common law tradition. Such claims also had the new distinction of appealing to America’s “moral energy”—an even more universal authority than the divine law put forth by the Founding generation.30 As

appeals to more widely present grounds for rights began to take hold in American culture

and political life, rights began to be understood to apply in more places and at more

times, making their armoring ever stronger.

27 Naomi Wolf, “The Politics of Past and Progress in Jacksonian Democracy,” American Transcendental Quarterly 20 (2006): 648. 28 Ibid., 650. 29 Ibid., 651. 30 Frances Wright, “Origins of the Workingmen’s Movement,” Free Enquirer 8 May 1830, 220-221, in Wolf, “Politics,” 651.

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The appeal to moral authority in favor of the expansion of rights continued with

the adoption of the Reconstruction Amendments31 that guaranteed access to a suite of

civil rights for newly freed African slaves at the end of the Civil War. Thaddeus Stevens, a Radical Republican and the Thirteenth Amendment’s most ardent congressional champion, justified freeing the slaves and securing political rights to them by appealing to an expansive notion of charitable equity: “That philanthropy which embraces only one’s own race, and leaves the other numerous races of mankind to bondage and to misery, is cruel and detestable.”32 However, “for Reconstruction legal thinkers civil,

political and social rights were seen as three distinct categories.”33 While civil rights and

the touchstone political right to vote were guaranteed to freed slaves by the Fourteenth

and Fifteenth Amendments respectively, “government had nothing to do with

guaranteeing social rights except to enforce those rights guaranteed by the common

law.”34

This would prove a tenuous barrier to the reach of rights. For the next several

decades, enterprising lawyers tried to convince the Supreme Court to “incorporate” the

federal Bill of Rights against certain state laws and business policies. They argued that

these practices infringed the Fourteenth Amendment’s guarantee against deprivation of

liberty without due process. While the Supreme Court initially refused to acquiesce,

reasoning that the Reconstruction Amendments only applied in specific terms to freed

31 This is the common term for the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution. 32 Quoted in Steve Moyer, “Remarkable Radical: Thaddeus Stevens,” Humanities 33 (2012), National Endowment for the Humanities, accessed December 4, 2014, http://www.neh.gov/humanities/2012/novemberdecember/feature/remarkable-radical-thaddeus-stevens. 33 Mark Tushnet, “Civil Rights and Social Rights: The Future of the Reconstruction Amendments,” Loyola of Los Angeles Law Review 25 (1991): 1208. 34 Ibid.

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African slaves,35 they eventually agreed that the Fourteenth Amendment protected the right to contract,36 and began to apply the Bill of Rights to state laws with Gitlow v. New

York in 1925.37 The Supreme Court had begun to give official legal sanction to individual rights over and against state and local laws, sheltering them under a document many Americans revered above all others—the Constitution. Any rights claim that involved a liberty that the Court found “fundamental” could now be legally protected.

This heralded a massive increase in the breadth and strength of the protection rights afforded in the American psyche.

As the Industrial Revolution ground to a halt in the Great Depression after the high of the Roaring Twenties, economic issues and the devastation that a poorly planned economy could have on society came to the forefront of the American mind, and the concept of rights was expanded yet again. After the success of his New Deal, and as he prepared to take office for an unprecedented fourth term in 1944, President Franklin

Roosevelt proclaimed forcefully that it was time “to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known.”38 With that in mind, Roosevelt proposed what

has come to be called his Second Bill of Rights, viewing the previous Bill of Rights as guarantees of “certain inalienable political rights” which needed to be expanded to cover

35 The Slaughterhouse Cases, 83 U.S. (16 Wall) 36 (SCOTUS 1873), in Lee Epstein & Thomas G. Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints, 8th ed. (Los Angeles: Sage, 2014), 608-613. 36 Allgeyer v. Louisiana, 165 U.S. 578 (SCOTUS 1897), in Epstein & Walker, Institutional Powers, 620- 623. 37 Gitlow v. New York, 268 U.S. 652 (SCOTUS 1925), in Lee Epstein & Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice, 8th ed. (Los Angeles: Sage, 2014), 206-209. 38 Franklin D. Roosevelt, “State of the Union Message to Congress,” Franklin D. Roosevelt Presidential Library and Museum, 1944, accessed December 4, 2014, http://www.fdrlibrary.marist.edu/archives/address_text.html.

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“economic security.”39 These rights included “the right to earn enough to provide adequate food and clothing and recreation,” “the right of every family to a decent home,” and “the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.”40 By founding his claim for these rights only on a desire

to shore up economic security, and by stating that America’s success as a nation depends on how fully these rights come to reality, Roosevelt made the case that the existence of a right is justified if it is intended to protect against grievous social wrongs which would negatively affect the common good.41 We will return to this speech of Roosevelt’s in later chapters.

Alan Dershowitz, a modern legal theorist, makes a similar statement regarding rights’ emergence from wrongs, but focuses instead on the wrongs of injustice – a far more individualistic standard than Roosevelt’s. He holds that “we learn from the mistakes of history that a rights-based system and certain fundamental rights…are

essential to avoid repetition of the grievous injustices of the past.”42 Conceived of in this

way, rights are a near impregnable armor against whatever the people – or more often

discrete groups – determine is unfair or unjust. Concurrently, due to the new era of global cooperation which America has entered post-World War II, rights have been

defined in a broadly applicable and universalized manner, while retaining closer ties than

ever before to the human person. To communicate the ideas of rights in a way that

applies to the whole world, organizations such as Human Rights Watch now frame their

mission as “guided by international human rights and humanitarian law and respect for

39 Ibid. 40 Ibid. 41 Ibid. 42 Dershowitz, Rights, 8.

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the dignity of each human being.”43 The Office of the United Nations High

Commissioner for Human Rights says likewise that his position has “a unique mandate from the international community to promote and protect all human rights” because he

“represents the world’s commitment to universal ideals of human dignity.”44 Such

statements are the broadest yet encountered regarding the applicability of rights, and also

the most impregnable, since they are closely tied to the shared humanity of all persons.

This integration of rights claims with the essentials of human nature entails that preventing a person from asserting their rights dehumanizes them in a profound sense.

Thus, initially Americans believed that they had rights, but also that they were conditioned by particular laws, by cultural duties, or by other social elements. Through a long loosening process in which rights have been applied more widely, their definition has widened. At the same time, and perhaps more problematically, their protective capsule become more impenetrable. The indelible anchoring of modern rights to the essential nature of the human person makes them nearly impossible to qualify, causing problems when such rights clash. In sum, American understanding of the strength of rights protections has changed as the reach of rights has changed. But why did

Americans choose to extend rights as they did? Americans understand rights to be, at their core, guarantees of a specific kind of good: liberty, or put more specifically, the liberty to pursue goods. Liberty, then, will serve as the subject of my next chapter.

43 “Core Values,” Human Rights Watch, accessed December 4, 2014, http://www.hrw.org/about. 44 “Who We Are,” United Nations Office of the High Commissioner for Human Rights, accessed December 4, 2014, http://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx.

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CHAPTER THREE

Liberty and Rights

If rights are, as I have just argued, liberties encased in protective capsules, then

we need some sense of what liberty is. This is an incredibly difficult philosophical and

political question to approach, not only due to the abstractness of the question, but also

because liberty “is a term whose meaning is so porous that there is little interpretation

that it seems able to resist.”1

I mean to shed light on this question here by focusing briefly on several answers

from the most seminal theorists of modern political thought, most notably those of the

liberal movement that took liberty as its chief social value. My primary sources will be

Thomas Hobbes’ Leviathan, John Locke’s Second Treatise of Government, Wilhelm von

Humboldt’s Limits of State Action, and L.T. Hobhouse’s Liberalism. As may be apparent

from my choice of thinkers, I intend to address the distinction between a positive

conception and a negative conception of liberty that Isaiah Berlin has famously explored.

I will argue that Berlin’s distinction between positive and negative liberty is a correct and helpful demarcation. In fact, upon examination, liberal theorists define liberty in ways that over time move toward greater and greater degrees of positive liberty.

Political historian Guido de Ruggiero, examining the origins of the concept of

liberty in Western culture, says that liberty “has its roots in feudal society…under the

1 Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford UP, 1969), 168.

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name of privilege.”2 Originally, liberty was closely tied to the state, which gave certain

privileges to its citizens according to their place in society that they could then exercise

freely. For instance, the objective of Magna Carta was to hinder King John from

abridging and denying to the barons the privileges that they had traditionally been due from the crown by making him sign a document that guaranteed their continuance.3

Since authority proceeded from the top down, in order for anyone in the polis to have any freedom, it needed to be granted by the king or gained by strife with him. Magna Carta involved both methods. John was forced to agree to the barons’ terms after his loss to their forces at Runnymede, but the document was still written as if the privileges proceeded from him. Such privileges were, in effect, areas where the king could not rule through decree. They stood contrary to any such attempt at coercion.

One way to understand liberty is to see how it changed conceptually from Magna

Carta to the great treatise Leviathan, written by Thomas Hobbes. Speaking very broadly, as the Renaissance and Reformation came and went, the top-down model of authority became less feasible as subjects began to agitate for freedom from institutions by which they no longer wished to be ruled. Popular rebellions broke out across Europe as subjects agitated for civil power. Hobbes wrote Leviathan during his exile in Paris beginning in

1640, as the English Civil War was concluding. He had been a staunch supporter of the king’s cause.4 While there, he also experienced the first stages of “the confused uprising against the absolutist government of France,” the Fronde.5 Yet many of Hobbes’s supporters were troubled to see him apparently embrace the idea of the common-wealth

2 De Ruggiero, History, 1. 3 See generally “The Magna Carta.” 4 Thomas Hobbes, Leviathan (New York: Cambridge UP, 2008), x. 5 Ibid.

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and the social contract championed by Cromwell.6 However, Hobbes did something far

savvier in the political context. He offered a theory of the common-wealth, but headed

by a singular entity:

A Multitude of men, are made One Person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular…And because the multitude naturally is not one but many; they cannot be understood for one; but many Authors, of everything their Representative saith, or doth in their name; Every man giving their common Representer, Authority from himselfe in particular; and owning all the actions the Representer doth, in case they give him Authority without stint: Otherwise, when they limit him in what, and how farre he shall represent them, none of them owneth more, than they gave him commission to Act.7

Hobbes applied this corporate theory of groups to governance. He reasoned that out of

fear of death in a constant state of “civill Warre” with all other men, groups would at first

band together and form covenants with each other by using their reason to discover

“Lawes of Nature” upon which they could all agree.8

Even Hobbes, the earliest theorist I am examining, understood that at their simplest level liberty, rights, and the law were connected. Foundational to Hobbes’s scheme of natural laws was the “right of nature” undergirding them, which Hobbes understood as “the Liberty each man hath to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life.”9 Rights at bottom

consisted of the ability to make free choices without a legal stricture that bound men to

do one thing or another. Laws and rights were therefore connected for Hobbes, but in a

6 Ibid. 7 Ibid., 114. 8 Ibid., 90. 9 Ibid., 91.

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negative sense – men had a right to act in a liberated manner only where the law did not

speak in a positive manner.10

Hobbes defines liberty as “the absence of externall Impediments: which

Impediments may oft take away part of a mans power to do what hee would; but cannot hinder him from using the power left him, according as his judgement, and reason shall dictate to him.”11 As seen above, such impediments could include laws. Agreeing to a law, natural or otherwise, meant renouncing a right or liberty and accepting the rule of the law-making authority over one’s physical self.12 Hobbes develops his definition

further when he begins to construct his common-wealth. Again, he defines liberty as a

privation, “the absence of Opposition; (by Opposition, I mean externall Impediments of

motion).”13 Hobbes’s reduction of liberty to a purely physical phenomenon has the strange effect of denying that non-physical liberty can be legally protected. The impediments to which Hobbes refers are material, and have to do with the material realm, not that of the will, which on Hobbes’s account is already free to believe and think whatever it pleases and cannot possibly be coerced.14

Hobbes goes on to make an important distinction between liberty and power, one that has implications for later authors:

But when the impediment of motion, is in the constitution of the thing it selfe, we use not to say, it wants the Liberty; but the Power to move…A FREE-MAN, is he, that in those things, which by his strength and wit he is able to do, is not hindred to doe what he has a will to.15

10 Ibid. 11 Ibid. 12 Ibid., 92. 13 Ibid., 145. 14 Ibid., 146. 15 Ibid.

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To demand liberty to do things that are impossible is thus on Hobbes’ view invalid and

dangerous. Liberty involves being able to act where you already ought to have the ability

to do so – in essence, freedom in arenas where you are not already bound by covenant.16

In a common-wealth, Hobbes continues, the ability to act freely is protected by the sword of the governing authorities which enforces the law. Since the governing authority is comprised by a social contract between all citizens, it makes no sense for subjects to clamor for freedom from these laws. “The Liberty of a Subject, lyeth therefore only in those things, which in regulating their actions, the Soveraign hath praetermitted.”17 In

Hobbes’ vision of the state, the law guarded liberty, and was thus supreme to it. The laws

that the sovereign authority made were proper restrictions of liberty by simple virtue of

the fact that the sovereign made them.

Though John Locke never directly seems to respond to Hobbes, much of his work

can be read in conversation with Leviathan. While Hobbes sees an all-powerful

sovereign lawmaker as a solution to constant civil conflict, Locke worries that such an

authority would ultimately prove harmful to the liberty of subjects if it indulged in

arbitrary restrictions. Locke replaces Hobbes’ sovereign with reason, which approves of

laws that check the natural liberty of citizens.

Locke’s state of nature is one of equal liberty. Before any society exists, all men

have “perfect freedom to order their actions and dispose of their possessions and persons,

as they think fit, within the bounds of the law of nature; without asking leave, or depending upon the will of any other man.”18 So law is still superior to liberty and

16 Ibid., 147. 17 Ibid., 148. 18 Locke, Two Treatises, 101.

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bounds it, even in man’s natural state. Locke makes sure to drive this point home a few lines later by distinguishing the natural liberty “to dispose of his person or possessions”

from complete freedom or “license.”19 Even prior to any social obligations, natural

moral obligations dictated by reason exist, and these place a check on freedom, raising

man above other undiscerning animals.20 The central law of nature is much like the

Golden Rule: “being all equal and independent, no one ought to harm another in his life,

health, liberty, or possessions.”21 If someone violates the natural law on Locke’s account, everyone has equal liberty to punish him – but contrary to Hobbes’ account, this supremacy does not give the punisher “absolute or arbitrary power to use a criminal.”22

Rather, “calm reason and conscience” demonstrate exactly what punishment is

proportionate and therefore appropriate.23

Locke’s answer to the question of liberty’s proper definition does not remain mired in the physicalism of Hobbes. He takes the essentials of liberty found in Hobbes and frees them from these restraints:

[L]iberty is to be free from restraint and violence from others; which cannot be where there is not law: but freedom is not, as we are told, “a liberty for every man to do what he lists:” (for who could be free, when every other man’s humour might domineer over him?) but a liberty to dispose and order as he lists his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.24

For Locke, the correct way to understand a human person was not as a physical machine, but as a possessing thing. Property, or things possessed, was an extension of a man, and

19 Ibid., 102. 20 Ibid., 126. 21 Ibid., 102. 22 Ibid., 103. 23 Ibid. 24 Ibid., 124.

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even his own body could be understood as a thing possessed. This propertied view of the

self entailed that, when faced with the insecurity of the state of nature, man would give up his natural liberty and enter into civil society with other men to protect his

possessions, on Locke’s view. “The great and chief end … of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their property.”25 To do so, natural man puts away his right (or liberty) to punish those who

harm his possessions, and allows his right (or liberty) to act for his own self-preservation

“to be regulated by laws made by the society” for the common good.26

So liberty for Locke was essentially the ability to use one’s own property freely.

In civil society, liberty was subject to restriction for the good of the majority. Like

Hobbes, liberty is protected and made secure by laws, and like Hobbes, liberty depends

on the prior possession of a thing to be liberated. For Locke, this was property; for

Hobbes, it was the power to physically act.

Another important theorist in the conceptual development of liberty was Wilhelm

von Humboldt. A Prussian statesman, Humboldt wrote The Limits of State Power in the

wake of the French Revolution. He himself was a leading figure in the emerging German

neo-classical movement, “which saw in an idealized picture of the ancient Greeks the

model of the fully rounded and harmonious human character.”27 He also agreed with the theories of human personhood and morality espoused by late Enlightenment thinkers

Leibniz, Kant, and Rousseau. According to these men, humans were perfectible,

25 Ibid., 155. 26 Ibid., 156. 27 Wilhelm von Humboldt, The Limits of State Action, ed. J.W. Burrow (Indianapolis: Liberty Fund, 1993), xxi.

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progressing creatures of moral feeling.28 His works heavily influenced the later (and

more well-known) political theorist John Stuart Mill, who quoted the following passage

from Humboldt in his masterwork On Liberty:

The true end of Man, or that which is prescribed by the eternal and immutable dictates of reason, and not suggested by vague and transient desires, is the highest and most harmonious development of his powers to a complete and consistent whole. Freedom is the first and indispensable condition which the possibility of such a development presupposes; but there is besides another essential – intimately connected with freedom, it is true – a variety of situations.29

Separating himself from Hobbes and Locke at the very beginning of his work, Humboldt

presupposes a proper final end for man’s actions beyond mere self-preservation.

Humboldt argues that any given human being can only develop his powers to

perfection in a narrow sphere. This makes humans individually unique in their abilities

and desires, and it is also why we choose to enter society together: “based on the internal

wants and capacities of its members … each is enabled to participate in the rich collective

resources of all the others.”30 The state is strengthened by the differences of individuals,

and thus its goal should be to encourage individuals to further develop their special

abilities by fostering a diversity of opportunities for them to freely do so.31

In order to give the individual the most freedom to develop, “any State interference in private affairs, where there is no immediate reference to violence done to

individual rights, should be absolutely condemned.”32 We should notice that Humboldt’s prohibition against state coercion of the individual is much stronger than anything found in Hobbes or Locke. Indeed, Humboldt believed that all men were essentially equal in

28 Ibid. 29 Ibid., 10. 30 Ibid., 11. 31 Ibid., 11-12. 32 Ibid., 16.

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their ability to reason, and thus state restrictions on this ability violated the individual’s freedom of thought. “There is something degrading to human nature in the idea of refusing to any man the right to be a man. There are none so hopelessly low on the scale of culture and refinement as to be incapable of rising higher…”33 For Humboldt, then,

man was at his core a being which develops and grows by means of reasoning.

Humboldt thus defines freedom or liberty as the ability to act to develop oneself.

The state’s goal is to make citizens more secure in their liberty by punishing those who

seek to make citizens less secure, “[f]or as the State must pursue no other end than the

security of its subjects, it may impose restrictions only on actions which run counter to

this ultimate object.”34 Additionally, the government should not restrict its citizens’

freedom for any particular moral end, since to do so would be to limit citizens in their

ability to fully develop.35

Interestingly, Humboldt’s view that man’s ultimate end is the harmonious development of his powers to their completion is itself a moral view, since it marks out a proper goal for man’s action. Humboldt is in this sense offering a view of liberty as positive, though not beholden to the state. Liberty for Humboldt is ordered to the end of individual progressive growth, and the state as a whole is tasked with making individuals secure in their ability to develop in any unique way they choose. Still, crucial to this ordering of liberty is its lack of statist guidance. Humboldt’s goal is to allow human beings to mature by removing the state from their lives. He views the liberty to freely choose as the means to a positive goal.

33 Ibid., 68. 34 Ibid., 110. 35 Ibid., 119-120.

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Shifting now to Hobhouse, we find a theorist who seeks to direct liberty in an

even more extensive fashion. He realizes something that Humboldt treats as secondary:

some paths of self-development are less good for the state – and correspondingly, for

every individual – than others. Hobhouse is writing after the emergence of the quest for

liberty as an ideological movement called liberalism. What is the nature of this

movement? Does it have any positive goals, or is it ultimately “a destructive and

revolutionary criticism,” destined to tear down institutions?36 Hobhouse tries to answer

both questions, and emerges with a conception of liberty that revolves around equality

and the necessity of legal restraint to achieve it.

Hobhouse never defines liberty in a general sense. Rather, he traces a

“liberalizing movement” through history, as it builds on itself by pursuing access to

greater freedom in a variety of social spheres.37 He does have in common with Hobbes,

Locke, and Humboldt a sense that liberty, law, and rights are connected at a foundational

level. However, all three authors saw law as a necessary protection for the ability to act

freely, while Hobhouse intends the law to achieve a purpose. He foreshadows this inclination when speaking of civil liberty early in the text: “The first condition of universal freedom, that is to say, is a measure of universal restraint. Without such restraint some men may be free, but others will be unfree.”38 In order to guarantee

freedom, laws needed to be impartial, with a judiciary independent from the arbitrary

power of the government. Everyone in society would feel secure in his or her freedoms,

thanks to the just rule of law. Thus on Hobhouse’s view “the struggle for liberty is also,

36 L.T. Hobhouse, Liberalism (New York: Cambridge UP, 2006), 8. 37 Ibid., 10. 38 Ibid., 11.

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when pushed through, a struggle for equality. Freedom to choose and follow an occupation, if it is to become fully effective, means equality with others in the opportunities for following such occupation.”39 Equality of opportunity and security

were thus the goals of the truly liberal regime.

Hobhouse excoriates earlier liberals – natural rights thinkers like those we have

just examined – for the flaws in their theory. Its chief problem, he says, lies in its

unproven and dangerous assumption that if a person is “enlightened and unfettered,” his

self-interest will fall into a natural harmony with society’s best interest.40 Government

did not need to interfere; it only needed to get out of the individual’s way and safeguard

his ability to choose. Any contracts or choices that I make within society are the result of

my free choices, and any consequences that I incur are my responsibility to remedy. This laissez-faire theory of social harmony was in a certain sense utilitarian, as it held that

“general freedom of choice,” or liberty, would secure the greatest good for the greatest

number.41

Contrary to natural rights thinkers, Hobhouse pointed out that a society that

operated with freedom of choice as its unabashed ideal, with limited state power to

punish harm, assumes that all citizens are equal when they are observably not. Human beings differ in all sorts of ways, including physical strength, power, and mental ability,

and all human beings have different (and occasionally conflicting) ends that they are

interested in accomplishing. Yet “full freedom of consent implies equality on the part of

39 Ibid., 15. 40 Ibid., 28. 41 Ibid., 36.

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both parties to the bargain.”42 To secure the most freedom possible to every citizen,

government’s positive goal should be promulgating restrictions “with a view to

preventing one man from making use of any of his advantages to the disadvantage of

others.”43 Though “unsocial freedom” to make self-interested choices may be theoretically possible, it is not the sort of freedom that is welcome in society. Liberty in a civil society, therefore, can be defined as “the freedom to choose among those lines of activity which do not involve injury to others.”44

This new recognition that liberty must be restricted legally in a liberal society so that some citizens do not harm others allows for a massively expansive view of government on Hobhouse’s theory:

We should frankly recognize that there is no side of a man’s life which is unimportant to society, for whatever he is, does, or thinks may affect his own well-being, which is and ought to be a matter of common concern, and may also directly or indirectly affect the thought, action, and character of those with whom he comes in contact.45

If all choices and actions a person takes are socially important, then they can – and

according to Hobhouse, should – be regulated to prevent harm to others. Thus the common good governs which rights claims have purchase in civil society, and provides the path which liberty should take.46 Though Hobhouse does agree that these restrictions

would be more effective if “founded on freedom and general willing assent,” he does not rule out the possibility of government coercion to achieve the end of social progress.47

The heart of liberalism, on Hobhouse’s account, is to make real this “‘positive’

42 Ibid., 43. 43 Ibid. 44 Ibid., 44. 45 Ibid., 58. 46 Ibid., 61. 47 Ibid., 64.

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conception of the State which…not only involves no conflict with the true principle of

personal liberty, but is necessary to its effective realization.”48

To review, we can see a clear evolution of the idea of liberty through the accounts of these four thinkers, primarily based on how they viewed the law and human persons.

For instance, Hobbes saw man as a moving machine. Liberty on his account was thus the freedom to physically move and act, and the laws existed to safeguard this freedom.

Locke’s propertied view of the self, which implied that humans were more than material, led him to conclude that liberty was the freedom to dispose of personal property, and was subject to both legal protection and regulation in civil society. Since Humboldt understood persons as rational beings capable of unique development, he correspondingly understood liberty as the freedom to develop and tasked the laws to secure spheres of choice. While Hobhouse seems in agreement with Humboldt about the essential nature of persons, he is concerned that allowing humans to choose in a self-interested manner will be detrimental to society, and thus calls for positive legal regulation to better secure liberty for all citizens.

We can clearly see that later thinkers see the law and the state as a more vital condition of liberty, helping to secure certain ends in order to (at least in theory) increase freedom for all. How can we best understand this change in thought? To answer, we ought to turn to the work of Isaiah Berlin, as his exploration of positive and negative liberty suggests an answer.

Writing during the first stages of the Cold War in 1958, Isaiah Berlin understood political theory as “a branch of moral philosophy” which was centrally concerned with

48 Ibid.

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“the question of obedience and coercion.”49 If someone is coerced, Berlin says, he is deprived of freedom or liberty. Freedom has been understood in many different ways throughout history, as we have observed, but Berlin only chooses to examine two of the most expansive of these senses. Thus his demarcation is not a hard-and-fast classification of liberty, but rather an examination of two definitional genres that have been traditionally at odds.

Berlin’s understanding of positive and negative liberty is difficult to grasp, so perhaps it is best to let him introduce the concept:

The first of these political senses of freedom or liberty (I shall use both words to mean the same), which (following much precedent) I shall call the ‘negative’ sense, is involved in the answer to the question ‘What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?’ The second, which I shall call the ‘positive’ sense, is involved in the answer to the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?’50

The questions are clearly different, though they both concern what we would call liberty.

Negative freedom or liberty is then “the area within which a man can act unobstructed by

others.”51 Most of the authors we have examined above understand liberty in this sense.

Coercion against a person’s negative liberty constitutes deliberate interference with his ability to act perpetrated by other persons.52 Berlin agrees with Hobbes that coercion

does not include “mere incapacity to attain a goal.” A person’s negative liberty is not

injured at all if, for example, he is unable to acquire food, unless other human beings

have directly caused this inability. Thus, negative liberty is at its core the state of “not

49 Berlin, “Two Concepts,” 168. 50 Ibid., 169. 51 Ibid. 52 Ibid.

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being interfered with by others. The wider the area of non-interference the wider my

freedom.”53

This construction of freedom has nothing to do with equality, but rather with securing a minimal amount of personal freedom common to all men that cannot and should not ever be deliberately invaded.54 Berlin does acknowledge that some people

(like the starving person mentioned above) have needs that are more pressing than the need for a sphere of personal liberty to call their own. We may even feel troubled by the plight of these persons, and wish for them to have the same opportunities we do. We may even choose to freely relinquish some of our liberty for their sake – but this desire does not change what liberty itself is. In fact, “if I curtail or lose my freedom in order to lessen the shame of such inequality, and do not thereby materially increase the individual liberty of others, an absolute loss of liberty occurs.”55 Thus, any conception of negative

liberty entails the reserve of “some portion of human existence,” regardless of how small, to individuals as independent from regulation and invasion.56

Recall that positive liberty, on the other hand, is intended as an answer to the question of where the proper source of coercion in the social order resides. We should be mindful, then, that Berlin is not proposing that we choose sides and discount negative liberty as socially helpful while embracing positive liberty, or vice versa. Rather, Berlin intends to show the interaction between the two types of liberty, and divide them so that they can be seen and examined separately. Again, I will allow Berlin to speak for himself:

53 Ibid., 170. 54 Ibid., 171. 55 Ibid., 172. 56 Ibid., 173.

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The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will…I wish, above all, to be conscious of myself as a thinking, willing, active being, bearing responsibility for my choices and able to explain them by reference to my own ideas and purposes. I feel free to the degree that I believe this to be true, and enslaved to the degree that I am made to realize that it is not.57

Notice that Berlin is doubtful that I or anyone else can achieve a state of self-mastery; instead, positive liberty involves the belief that I am master of myself and have the ability to operate independently of any outside moral or traditional strictures. Sometimes, Berlin

says, we identify this drive with our ability to calculate, namely our reason. Ever since the ancient Greek philosophers, a strand of Western thought has held that the independent person, the one who could rationally weigh options and then execute whichever one he chose perfectly while checking his own harmful desires, was the ideal.58 Positive liberty

is another way to express this idea: a human being with adequate positive liberty could essentially “set his own calendar” and make things happen as he wished. It is essentially the ability to posit an end (thus the name), and to coerce all obstacles out of the way.

Often, says Berlin, the coercion necessary for the exercise of positive liberty is

claimed as beneficial for all, since it will bring about a higher degree of freedom. Berlin,

however, is wary of “coercing others for their own sake … I am then claiming that I know what they truly need better than they know it themselves.”59 If this claim is true,

then I have the concomitant liberty to ignore their wishes, and “to bully, oppress, torture

them in the name, and on behalf, of their ‘real’ selves,” which they would surely express

57 Ibid., 178. 58 Ibid., 179. 59 Ibid.

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if they had the adequate faculties.60 No area of regulation and restriction is left off limits.

This, then, is how conflict between a positive and negative concept of liberty often develops: when some members of society decide that something ought to be done, and justify the social coercion needed to make it reality on the grounds that those coerced will be better off in the end.

Given these descriptions, the distinction between positive and negative liberty in

Berlin is clear. At bottom it reveals a conflict between what a given individual can do, as opposed to what he ought to do according to some authority. Negative liberty comprises the ability to choose freely independent of restriction, while positive liberty constitutes the ability to restrict freedom of choice for the sake of an end perceived as good. Positive liberty is really a struggle over one specific freedom – the freedom to coerce – and it is not something that can be increased or decreased, but “an ‘end state,’ the status of a fully self-realized human being.”61 It constitutes an assumption about the proper or ideal goal of human beings and justifies the coercion needed to bring even the unwilling into alignment with it.

When we look back at the thinkers we have examined through the lens of Berlin’s distinction, we see a trend toward defining liberty in a more and more positive manner

that increases as history marches on, due to how our authors viewed human beings.

Moreover, we learn that when government adopts the moral authority to say what is good

and bad, it exercises positive liberty and thereby limits the negative liberty of its subjects.

Government can only be secure in doing so if its subjects recognize this positive authority

as legitimate. Once citizens accept the government’s posited ends for their endeavors,

60 Ibid., 180. 61 Eric Nelson, “Liberty: One Concept Too Many?,” Political Theory 33 (2005), 60.

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they will likely begin to clamor for provision of the liberties or goods to which the government has attached a moral “ought.” Government must then expand, in an effort to provide goods and secure liberties to as much of the population as possible. Yet some will always be left out, and will continue to entreat government for further power to become their “real selves,” as Isaiah Berlin put it. Still others will be prevented from full exercise in their sphere of negative liberty, in the name of the “common good.”

Thus, according to Berlin, laws that mark a moral ought for choices have the effect of expanding liberty for some and restricting the liberty of others. This tension is notable and dangerous, since it involves the coercion of some citizens against their will.

In the following chapters, we will examine the implications of the distinction between positive and negative liberty on rights talk.

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CHAPTER FOUR

Examining Rights Claims

In the previous chapters I have endeavored to examine rights and liberties, in an

effort to ascertain why Americans address rights in the way they do, and how this perspective on rights might lead to the conflict and confusion that we currently observe in

American politics. I have adopted Michael Freeden’s definition that rights are protective

legal capsules that prioritize and protect certain goods which humans find essential for

living. In America, these goods are various liberties, or spheres of free choice.

I have also shown that as our polity has grown in size, rights have been asserted

on a wider plain, and in increasing swaths of society. Among liberal nations, America’s

conviction that legitimate rights are legal protections is unique, and born from deep

respect for the rule of law. Concurrently, the strength of rights’ outer legal shell of

protection has become more impenetrable, as the government has stepped in to posit an

end for the liberties which rights protect: making more and more people and areas of

society equal in the fullness of their access to rights.

What remains is to ascertain exactly why rights talk is so confused and

contradictory. In the rest of this paper, I will demonstrate that such conflict occurs

because the freedoms protected by some claimed rights interfere with the freedoms

claimed by others.

Modern rights documents attempt to guarantee rights to individuals by claiming a

list of rights for citizens and backing them with governing authority. It is obvious by his

definition that Freeden also considers rights to guarantee essential goods. If this is so,

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then these goods exist prior to their armoring and not as a consequence of it. In other

words, if rights were not enumerated, the good (and most importantly, the liberty to

pursue it) would still exist. Thus the question becomes: which liberties ought to be

armored as rights and thus guaranteed to the populace, and which ought to be left alone, or even curtailed?

In America, based on our founding documents, we understand rights as guarantees as well. This idea of rights as guarantees was revolutionary for its time. The

Declaration of Independence’s initial pronouncement that “all men are created equal” and possessed “certain inalienable Rights” by virtue of their nature as human beings was unprecedented in its scope.1

When we make a list of rights, we provide ourselves and any other citizen with access to a slate of goods. Enumerating access to goods as rights in a document can expand or constrict this access both based on the amount of people that the document addresses and based on the language involved. Again, though, the good exists prior to its enumeration regardless of how it is treated by the rights document. For instance, it is still good for me not to be killed, regardless of whether any governing body says that I have the right to life. Thus, some enumerations of rights may be more or less suitable to the

United States specifically, and additionally, some may be more objectively sound than others.

In this chapter, I will examine the rights claims found in the American Bill of

Rights, Franklin D. Roosevelt’s “Second Bill of Rights” speech, and the Universal

Declaration of Human Rights. All three of these documents claim to function as

1 “Declaration of Independence”, pgh. 2.

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legitimate rights listings in the United States based on some foundation as sufficient

protections for liberties. My question is this: how well do these existing rights documents actually guarantee liberties, and what does this say about how rights ought to guarantee liberties? Understanding this will shed light on how conflicts between rights come to occur in American thought.

The history of the creation of the Bill of Rights helps to demonstrate how it ought to be understood. After the Constitution’s passage, some Americans opposed its ratification because it did not contain an enumeration of the rights to which they were entitled, but merely laid out a framework for government. Writing in defense of the

Constitutional Convention’s work in Federalist 84, Alexander Hamilton notably did not disagree with this expressed desire to legally safeguard liberties. He began by reminding his readers that charters that enumerated rights had been traditionally understood as

“reservations of rights not surrendered to the Prince” – in other words, privileges granted by the existing social order.2 The ruler had control over how many privileges he would allow to citizens, and in what manner he would allow them. Since the Constitution set up

a popular government, and not an authoritarian one, power under its purview would naturally proceed from the bottom up rather than from the top down. Due to this arrangement, Hamilton explained further, adding a bill of rights to the Constitution would be a risky proposition: “Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”3

2 Alexander Hamilton, “84: Concerning Several Miscellaneous Objections,” in The Federalist, ed. George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), 445. Recall that Guido de Ruiggiero says nearly the same thing about liberties in History, 1. This connection serves as further evidence that rights are best understood as protections for liberties. 3 Ibid.

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Hamilton’s view, which relied on the implied and unlikely premise that Congress

would never step outside its legislative boundaries, was met with skepticism by Anti-

Federalists. Dissenters included Patrick Henry, who worried that if Congress did not

have a document enumerating the rights retained by the people, “being in a state of

uncertainty, they will assume rather than give up powers by implication.”4 The

fundamental problem, as constitutional historian Jack Rakove points out, was one of

governmental accountability to the people, as “this argument still supposed that the

problem of rights was to protect people from their governors, the ruled from their

rulers.”5 The Bill of Rights that eventually emerged from this tussle over how best to guarantee liberty in the American system was thus intended to limit the government’s power, thereby guaranteeing free exercise of certain liberties for all citizens.

America’s Bill of Rights, comprised of the first ten amendments to our

Constitution, enumerates a suite of civil rights for the people of the United States alone.

These rights cannot be considered to protect liberties that are essential simpliciter, but rather essential based on a certain idea of human flourishing held by those who wrote them. Moreover, the way in which the Bill of Rights is framed make the liberties guaranteed by its amendments open for individual and societal shaping and definition.

The courts, and especially the Supreme Court, accomplish much of this shaping. The idea of what constitutes “cruel and unusual punishment,” for instance, has changed as social mores have. No federal court would consider hanging an acceptable punishment for murderers now, as it was when the Bill was penned. Some legal scholars even argue

4 Patrick Henry, “Speech to the Virginia Ratifying Convention, 16 June 1788,” in Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 323. 5 Rakove, Original Meanings, 324.

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that capital punishment itself is cruel and unusual. Whether the language of the Bill was

intended to evolve like this is unclear, and frankly unimportant, since in reality it has.

At its penning, the Bill of Rights was concerned with protecting individual and

common liberties from infringement by the federal government, as a document concerned

with securing negative liberties. It was not concerned with staving off intrusions by

fellow citizens or groups. The later Reconstruction Amendments would be interpreted to

expand the rights protections of the Bill of Rights to cover groups and other individuals.

These additions to the Constitution gave a particular social group (freed slaves) the vote and guaranteed all citizens of the United States equal protection under the law. Through

a series of court cases, the Supreme Court took “equal protection” to mean that all

citizens of the United States were entitled to the Bill of Rights’ protections against state and local laws.

The process of applying the Bill against nonfederal laws, called “incorporation,” has had advantages and disadvantages for the American legal system. It gave all

American citizens, regardless of distinction, greater space in which the government could not interfere with the exercise of their liberties. However, it also had the effect of diluting the language of the amendments to abstractions. The amendments were specifically meant to deal with the relationship between the federal government, the states, and the people. Now, they were applied at a level of governance that they were never expressly intended to address. For example, new spheres of civil action, like the

“right to make a contract”6 and the “right to privacy,”7 neither of which are found in the

6 Lochner v. New York, 198 U.S. 45 (1905), accessed February 9, 2015, http://caselaw.lp.findlaw.com. “The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.”

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text of the Constitution, found protection within the “penumbras”8 of the Bill of Rights.

No evidence exists that either of these liberties was meant to be protected beyond its limited expression in the original amendments. They were added by the stroke of the judicial pen, since they were understood to serve the end of securing equality under the law to Americans.

This is not to imply, however, that the Reconstruction Amendments were not without a valid end or point. The Bill of Rights recognizes that liberty is an endowment to men that precedes the existence of the state, and thus does not attempt to positively grant liberties but only to negatively guarantee social space for their free exercise using the language of rights. Such limited guarantees were never intended to be static; that is why the Framers included a mechanism for constitutional amendment.

Penning a document that marks out arenas in which liberty can have free range does have the effect of restricting negative liberty, however, just as the Federalists worried. Such restriction can be beneficial or harmful. This leaves a people two options in their quest to secure liberty, options which it would do us well to remember. Rights as framed by the American Bill of Rights are at bottom protections against having preexisting liberties removed by an arbitrary coercive power. As liberty preexists any right that seeks to protect its usage, the American people can conceivably choose not to enumerate a liberty’s societal bounds using a legal right. Alternatively, in seeking some end, Americans may choose to expand the horizon of what a tangentially related

7 Originally elucidated in Samuel Warren and Louis Brandeis, “The Right to Privacy,” Harvard Law Review 4, no. 5 (1890), but made constitutional under Griswold v. Connecticut, 381 U.S. 479 (1965), accessed February 9, 2015, http://www.law.cornell.edu. 8 Griswold v. Connecticut. 381 U.S. 479 (1965), accessed February 9, 2015, http://www.law.cornell.edu. “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

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enumerated right covers using legislation and litigation, as they did with the

aforementioned “right to contract” and the “right to privacy.” This second option has the

inevitable result of expanding the size of the national government, which must now

expend more energy and create more institutions to safeguard these new directions for

liberty.

The second set of enumerated rights that I will consider comes from President

Franklin Roosevelt’s 1944 State of the Union Address. It is commonly called the

“Second Bill of Rights,” or the “Economic Bill of Rights,” and I have addressed it previously as an example of rights expansion. Here, we will focus on the nature of these rights and the manner in which Roosevelt enumerates them. As Allied troops were

making strong gains in Europe and the Pacific, an optimistic Roosevelt took this opportunity to address the question of America’s future. How could the country build a

safe and secure society after peace was attained?

Near the end of his address to Congress, after laying out a series of economic reforms that he called for the country to embrace in order to win the second World War,

Roosevelt continued:

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people – whether it be one-third or one-fifth or one-tenth – is ill-fed, ill-clothed, ill housed, and insecure.9

Roosevelt was essentially claiming that America, as a nation, had not fulfilled its duty if

any portion of its citizens lacked in their basic needs. Setting aside the momentous issue

of how to determine which members of society truly lacked in these areas, how did

9 Roosevelt, “State of the Union.”

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Roosevelt purport to fulfill these needs? Firstly, Roosevelt argued that the current bill of rights, which he conceived as protecting “certain inalienable political rights…our rights to life and liberty,” was insufficient to “assure us equality in the pursuit of happiness.”10

To be truly free, individuals needed “economic security and independence.”11 Then,

speaking on the entire nation’s behalf, Roosevelt made a momentous statement: in

recognition of these truths Americans had “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.”12 This new slate of rights included, but was not limited to:

• The right to a useful and remunerative job in the industries 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 products 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 competition 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 opportunity 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.13

America’s success as a postwar nation would be determined, according to FDR, by how

fully it could put these rights into action.

Before commenting on the Second Bill of Rights’ efficacy and sufficiency as a slate of rights, I will examine Roosevelt’s understanding of rights in relation to previous

pictures we have examined, since it differs so substantially from the one found in the first

10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid.

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Bill of Rights. Roosevelt’s “rights” are not guarantees of liberty, except in a broad sense

of the term. Rather, they are attempts to aim the nation at a national goal of constructing economic security using the sacred language of rights, born out of Roosevelt’s belief that individuals could not exercise their civilly enumerated rights adequately without economic security. These “rights” do not encapsulate true, negative liberties, but rather

denote items or situations that would enable liberties to reach fullest expression.

Roosevelt’s enumeration of rights is thus a radical departure from the first Bill of

Rights. Unlike constitutional rights guarantees, the Second Bill has absolutely no legal standing – though that has not stopped the Supreme Court from attempting to partially grant their recognition in a legal revolution that continues to this day.14 It consists of a view of the Bill of Rights that would not have been shared by any of its Framers. Though

Roosevelt purports to speak for the nation, he never makes clear that the nation agrees with him.

This has not stopped political theorists from advocating that the Second Bill of

Rights should have equal standing in America with the Constitution. The most vociferous of these writers is progressive theorist Cass Sunstein, who has called the

Second Bill of Rights “the greatest speech of the 20th century” and “a leading American

export,” as an inspiration for new constitutions around the world.15 Sunstein also agrees

that the Supreme Court has constitutionally recognized some of Roosevelt’s rights, at

least in part. Additionally, “a consensus supports several of the rights he listed, including the right to education, the right to social security, the right to be free from monopoly,

14 See generally Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties (Madison: University of Wisconsin Press, 1981). 15 Cass Sunstein, “We Need To Reclaim The Second Bill of Rights,” The Chronicle of Higher Education, June 11, 2004, 9.

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possibly even the right to a job.”16 While Sunstein recognizes that Roosevelt did not

argue that the Second Bill of Rights should be constitutionally or legally protected, but

rather socially venerated, he expresses dismay that Roosevelt’s ideals have not been embraced:

Much of the time, the United States seems to have embraced a confused and pernicious form of individualism, one that has no real foundations in our history. That approach endorses rights of private property and freedom of contract; it respects political liberty, but claims to distrust “government intervention” and to insist that the people must largely fend for themselves. Its form of so-called individualism is incoherent – a hopeless tangle of confusions.17

Sunstein finally argues that a positive state is necessary for American culture to flourish,

since even property rights require state action to be realized.18

In fact, however, the Second Bill of Rights cannot provide a supplement to the

Bill of Rights. The two conceptions of rights that these documents embody are in direct

and inevitable conflict, as explained by Ari Armstrong:

If one person has a “right” to a job of a particular wage, that means that someone else must be forced to provide that job or wage. If one person has a “right” to health care, that means someone else must be forced to provide that health care. The same applies to every other “right” Sunstein mentions, whether to unemployment insurance or to an education.19

Sunstein’s revival of FDR’s Second Bill of Rights is thus a wonderful example of how the quest for self-development turns on itself when we allow the government to enforce a

particular moral vision. In our quest for self-mastery, we originate positive goals for the

exercise of our own negative liberties, but we are impeded in various ways from reaching

16 Ibid. 17 Ibid. 18 Ibid. Sunstein has continued agitating for the recognition of the Second Bill of Rights with his article “Obama, FDR and the Second Bill of Rights,” Bloomberg, January 28, 2013, accessed March 1, 2015, http://www.bloomberg.com/news/articles/2013-01-28/obama-fdr-and-the-second-bill-of-rights. 19 Ari Armstrong, “Cass Sunstein and the ‘Second Bill of Rights’ seek to obliterate rights,” The Objective Standard 8:1 (2013), 100.

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them. To get closer to our own goals, we believe that the state should help us. The state

agrees to do so, but it has multiple citizens to look out for, and may begin to develop an

ideal moral vision of its own - either from the combined moral visions of its citizens, or

independently from them. In the name of security and equality within society, the state

eventually begins developing positive regulation to secure this moral vision for all. This

is one of the major reasons for modern conflict within rights talk, and I will return to it in

further detail in a moment.

Lastly I turn to the document that the Second Bill of Rights heavily inspired, as

Sunstein just related, but which has a far wider range of influence – the Universal

Declaration of Human Rights, or UDHR. I examined this rights document briefly in my first chapter. Passed in 1948 as a “common standard of achievement for all peoples and all nations” by the United Nations,20 its treatment of rights is similar to the Second Bill of

Rights. It, too, posits a moral vision and argues for state action to secure it. According to

its preamble, the UDHR is based on the belief that “recognition of the inherent dignity

and of the equal and inalienable rights of all members of the human family is the

foundation of freedom, justice and peace in the world.”21 The UDHR is thus meant to

function as a plumb line for good standing in the global community. It binds all members

of the United Nations to promote respect for and educate their citizens about the rights listed in the document, which are considered inalienable.22 The UDHR is appealing to a

standard for rights beyond their individual civil expression – humanity itself.

20 “The Universal Declaration,” Preamble. 21 Ibid. 22 Ibid.

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Unfortunately, the UDHR has several problems as a comprehensive rights

document. First of all, it attempts to impose a structure of human rights on cultures with

differing heritages and traditions, some of which may not be conducive to human rights.23 As ethicist David Benatar points out:

When a number of people with a range of different ethical views seek to formulate a declaration that enjoys the support of all (or even most) of them, the resultant declaration will suffer from one or both of two possible shortcomings – minimalism and vagueness. By ‘minimalism,’ I mean the phenomenon of agreeing on the lowest common denominator. In other words, one includes items that everybody agrees upon, and one ignores items about which there is no consensus. The other way to gloss over disagreement is to choose formulations that are sufficiently vague that each person can interpret them consistently with his or her own view.24

I would propose that the UDHR suffers from the latter. Many of its terms, like those

found in the Second Bill of Rights, are too vague to be objectively understood without

interpretation. Such terms include “security of person,” “arbitrary interference with …

privacy, family, home or correspondence,” “the economic, social and cultural rights

indispensable for … dignity,” and “reasonable limitation of working hours and periodic

holidays with pay.”25 This allows any UN member nation, or even differing groups

within UN member nations, to read the UDHR differently, according to their own culture and traditions.

Such diverse interpretations of the same document will lead to conflict over its true meaning. The UDHR must have some objective moral vision of human rights in mind, however, as it allows the exercise of individual rights to be impeded only by

23 See generally David Benatar, “The Trouble with Universal Declarations,” Developing World Bioethics 5:3 (2005), 220-224. Benatar’s criticisms are primarily motivated by UNESCO’s Universal Draft Declaration on Bioethics and Human Rights, but his critique is far broader. 24 Benatar, “Trouble,” 221. 25 “Universal Declaration,” articles 3, 12, 22, and 24 respectively. A full list of the rights found in the UDHR can be accessed in Appendix B.

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regulations for “meeting the just requirements of morality, public order and the general welfare in a democratic society.”26 Setting aside the odd fact that this article seems to

imply that the only just government is a democratic one, we once again encounter the

problem of vagueness. What sorts of requirements are “just?” What is “public order?”

Which “morality” is at reference here? The document provides no clear answer.

A further problem with the UDHR involves a legal consideration. The document was passed by representatives of several major nations, and its second Article reads:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration … no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs.”27 Do the “rights” elucidated in the

Universal Declaration thus trump any stipulations exclusive to member nations? And do they apply to nations that had no hand in passing the Universal Declaration? May a child, to bring up a particularly hilarious example, sue his school in the Hague for not

providing him with “special assistance” when it gives him a low grade on a test?28 After

all, the school did not provide him with answers that would have assisted him in

completing the test. In the same vein, may a homeless man sue the government, or any private citizen for that matter, for not providing him with adequate housing?29

In fact, these hypotheticals raise another question: who is responsible for

providing these rights to citizens? The UDHR is clear that everyone has the right to

various undefined goods or situations, signified by terms like “work,” “rest and leisure,”

26 Ibid., article 29. 27 Ibid., article 2. 28 Ibid., article 25. 29 Ibid.

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and “marriage.”30 According to the UDHR itself, the entire world is held culpable for any lack of these goods at all, since “everyone is entitled to a social and international

order in which the rights and freedoms set forth in this Declaration can be fully

realized.”31 This article becomes impossible to fulfill when we realize that different

nations and people have differing conceptions of what the full realization of the right to work, for example, means.

Our examination of these three rights documents has lent us insight into an important truth: if a state’s goal in lawmaking is to secure liberty to its citizens, it is

impractical for the state to legally armor liberties as rights – but with caveats lent by its own comprehensive moral vision. Doing so restricts the use of negative liberties by providing only one set of possible moral choices to the citizen in a given situation. This comprehensive moral view may even be so vaguely stated that individuals will conflict over its contents, as in the case of the UDHR, since terms like “adequate,” “equal,” and

“just” mean different things to different people. Such conflict also makes it difficult to know whom to hold accountable for the fulfillment of a positive right, like the right to clothing.

The state may certainly possess a moral vision of the good citizen, but any

attempt to coerce individuals to follow it constitutes an invasion of liberty by limiting the

freedom to choose. Certainly, not all invasions of liberty are improper. For example, the

state can and should legislate to prevent murder and enslavement. However, in both of

these cases, the state is not acting to legally armor positive liberties, but rather to legally

30 Ibid., articles 23, 24, and 16 respectively. A full list of the “rights” claimed in the UDHR can be found in Appendix C. 31 Ibid., article 28.

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armor negative ones (i.e. the right not to be killed and the right not to be arbitrarily restricted).

Thus, state action to secure a moral vision by armoring liberties in such a way as to aim them at some end leads to conflict between rights. In the next and final chapter, we will explore a model of how this conflict has emerged in American culture, and discuss whether we can create a more secure footing for rights talk.

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CHAPTER FIVE

Rights and the “Dogmatomachy”

In the previous chapter, I concluded that the armoring of liberties by the state for a select positive end is undesirable and dangerous. However, one further nagging question remains that will inform our further discussion: if an objective moral good exists, should it not be secured in some way to the people? Unfortunately, it is likely that this securement is impossible to accomplish. Individuals possess conflicting ideas of the good. Thus if the state armors rights in an effort to point them to what it considers to be good, some of its citizens will have to be coerced to cooperate publicly with the state’s conception of morality. This amounts to a moral tyranny of the governing authority

(which consists of the majority faction in a democratic society) over minority factions or those out of power. Gain control of the government – especially the legislative body – in the United States or any other positive regime, and you can enshrine your moral agenda as right and true through civil law.

But, it may be asked, what about benevolent dictatorship? Surely an all-powerful individual whose word is law and who has the people’s best interest in mind would be the best sort of rights-giver? Of course this is true, but as Madison reminds us in Federalist

10, “absolute monarchs are but men.” No person or group of persons exists that is in possession of such a perfectly benevolent soul. Men are not gods.1 If the dictatorial

1 I feel I should add the caveat that Christendom believes that Jesus of Nazareth was fully divine and fully human, and many within this tradition also hold that Jesus will return to Earth at some future time to establish a kingdom under his leadership. However, Jesus has not returned yet, and thus he cannot exercise political rule over the Earth.

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state’s conception of morality is wrong in any particular, its moral tyranny will

necessarily be unjust.

But, someone may counter, even if a state which posits an end for liberty has

notable disadvantages, it is nevertheless the most effective way to secure goods to the

people – especially when combined with the input system of democratic participation.

First of all, this objection depends on the notion that the democratic majority will seek to

protect a set of goods that have some form of rational progression or continual chain, one

to another. The reality is far messier, as we will see in a moment. Secondly, “effective” does not necessarily entail “best.” A far better method, one that would allow for the pluralism necessary for the continual growth and vitality of human knowledge while forgoing any intrusion upon personal freedom, would be to cultivate a variety of traditional institutions of education and religion.

So much for objections in support of positive government. To better understand

the relationship between positive liberty and rights talk, we must examine the

phenomenon of liberalism itself. Contrary to common wisdom, liberalism is not a static

ideology or political perspective. It is, in fact, an ever-evolving social revolution aimed

at securing liberty. This is the most plausible way to explain how both believers in

laissez-faire economics and believers in the welfare state can both call themselves liberal

with equal fervor. Both movements share a conviction that liberty is the greatest of all

goods, since it enables individuals and groups to pursue and gain other goods. However,

at some point in its history, liberals shifted their focus from merely securing negative

liberty to legislating in favor of certain goods and ends. How did this shift occur, and

why? To understand this phenomenon fully, we must trace the history of the quest for

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liberty in the West, from its roots in the Reformation of the sixteenth century to the

present day. We will find that this movement develops roughly according to a certain ordering of existential need, and further, that the decision to pursue a moral vision by coercively protecting certain freedoms has the effect of diminishing others.

This task has already been foreshadowed to a degree by other authors who also view liberty as a developing concept. Theorist Eric Voegelin provides a Hegelian model of thesis-antithesis-synthesis in his essay “Liberalism and Its History,”2 and the

aforementioned historian Guido De Ruggiero also favors a developmental view of liberty,

albeit with differing emphases and orderings dependent upon the state in which it is

manifest.3 More recently, scholars David Schmidtz and Jason Brennan organized their book A Brief History of Liberty along developmental lines, though theirs are slightly different from those put forward in this paper.4

Recent increases in freedom are driven by a steadily liberalizing society. By

examining Western civilization, we can observe nine distinct “waves” of liberal agitation,

all of which aim at securing particular liberties, and achieve this securement through the

establishment of certain social principles and institutions. They also follow a distinct

order of existential need, from liberties that are most broadly needful to those which deal

solely with the individual. I will outline these waves broadly, providing brief

commentary on each. Before I begin, though, I will say a word about the conditions that brought about the rise of the liberal movement.

2 Trans. Mary Algozin and Keith Algozin, The Review of Politics 36 (1974), 504-520. 3 See primarily Introduction – ch. 4 of History. 4 (West Sussex: Wiley-Blackwell, 2010).

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The concept of liberty does indeed begin in feudal Europe, with privileges granted

by the king called “liberties” that were connected to political titles, privileges that could

be bought and sold.5 However, liberty in the universal sense only began to emerge with

the religious tumult raised by the church-state conflict of the medieval era, and flowered

in the Reformation of the sixteenth century. The former conflict manifested as a

competition over whether the church or the state had primary possession of temporal

power. One of the most notable of these disagreements was the clash of wills between

French monarch Philip the Fair and Pope Boniface VIII, which historian Brian Tierney

calls “the first medieval conflict of church and state which can properly be described as a

dispute over national sovereignty.”6

As the fourteenth century approached, the intellectual fascination with

Aristotelian thought found in writers like Thomas Aquinas began to have substantial

repercussions on the way that political writers addressed the state. Ironically, in

providing the framework for a worldview that reconciled Aristotelian ideas and the

Christian intellectual tradition, Aquinas actually furthered the distancing of the temporal

state from the church. To a certain extent, Aquinas failed to appreciate “[the] secularism

that might lurk in Aristotle’s Politics, especially in the theory that civil society is itself

perfect and self-sufficing, not requiring sanctification by any supernatural agency.”7 The idea that political society itself was an independent locus of power, combined with

Aristotle’s initial assertion that society was conducive to human flourishing, birthed a

5 De Ruggiero, History, 1-2. 6 Brian Tierney, The Crisis of Church and State 1050-1300 (Englewood Cliffs: Prentice-Hall, 1964), 172. 7 G. H. Sabine, A History of Political Theory (London: George Harrop, 1951), 264.

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nascent version of the modern concept of the “nation-state,” a centralized political community formed by and sanctioned by the people for their common good.8

Though this conflict – commonly called the “lay investiture movement” – succeeded in removing Europe further from the Pope’s control, decisive breaks between the temporal and spiritual spheres of power only began to occur with the Reformation, and the religious wars that followed.

When Martin Luther nailed his “Ninety-Five Theses” to the door of the

Wittenburg cathedral in 1517, he likely had no idea that his actions would rock the very foundations of Western culture and would spark a political, social, and economic revolution that still has not ended. Theologians including Luther, Calvin, Knox, and

Zwingli began to protest Catholic practices that they felt were unjust, restrictive, and

morally wrong. Moreover, Luther protested the Catholic hegemony over Christian faith

and practice, writing in 1523 that “worldly government has laws which extend no farther

than to life and property and what is external upon earth. For over the soul God can and

will let no one rule but Himself.”9 In response, Catholics excommunicated the

Reformers, and nations across Europe began to pick sides. Religious wars and conflicts

ensued between different European powers in response to the new divide in Christendom,

and in the midst of them emerged “the first great affirmation of modern liberalism:

religious freedom.”10 Protestants in Catholic nations and Catholics in Protestant nations,

fearing for their lives, advocated for the individual and collective freedom to worship

8 Tierney, Crisis, 172. 9 “Secular Authority: To What Extent It Ought to Be Obeyed,” in Martin Luther: Selections from His Writings, ed. John Dillenberger (New York: Anchor Books, 1958), 363-402. 10 De Ruggiero, History, 17.

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God as they saw fit. The movement toward protection of these religious liberties was

largely driven by believers themselves, and not initiated by the powers that be.11

This drive toward religious freedom initially aimed at securing toleration, but evolved as time went on into securement for freedom of conscience.12 The waves of

liberalism are cumulative, and each subsequent wave may affect others. Additionally, the

events set off by the quest to secure one freedom may touch off further waves, as the

wars of religion did.

Due to the interconnectedness between religion and society as it then existed, the

conflict over religious liberty led to political conflict between states throughout the

sixteenth century. Rulers reacted to this development by calling for the freedom from

foreign domination, in an attempt to stay conflicts by empowering their nations and

themselves with the idea of sovereignty.13 As one example, though the English monarch

Henry VIII ostensibly broke with Rome and the Catholic Church in 1531 over their refusal to annul his marriage, the text of the act that effected the change emphatically declared that “this realm of England is an empire” independent of papal sanction.14

Sovereignty aimed at creating clear and defensible bounds for the state within which its ruler could act freely, and within which its citizens could also be safe from external molestation. These bounds were integral and essential to the nation itself. In fact, this arrangement of opposing sovereignties produced by this reaction to the Wars of Religion

11 Ibid. 12 Ibid., 19. 13 One of the most important works in this regard is Niccolo Machiavelli, The Prince, tr. W.K. Marriott (Waiheke Island: Floating Press, 2008), where Machiavelli advocates for the unification of Italy under a single sovereign ruler at the head of a republic. 14 “United Kingdom: The Break with Rome,” Encyclopedia Britannica Online, accessed March 19, 2015, http://www.britannica.com/EBchecked/topic/615557/United-Kingdom/44841/The-break-with-Rome.

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was one of the earliest instances of a principle of national governance that did not depend

on religion for its sanctification.

However, religio-political conflicts continued within states, provoking writers like

Thomas Hobbes to search for a way to secure freedom from civil war – the third wave of

the modern quest for liberty. The institution that would ultimately secure this freedom to

the people was the governing mechanism of democratic sovereignty, turning the

individual into a political unit with a sphere of liberty. Hobbes himself favored this

solution, specifically recommending a model of a sovereign ruler constituted

contractually by the people in Leviathan.15 Government began to open itself to input

from certain noble and landed families, often represented by such bodies as the English

Parliament or the French Estates-General. Though in a state of near-constant tension with the ruling monarch, these bodies began to establish their own separate spheres of

power at this time.

Elsewhere, religious acrimony had begun to distill into a posture of skepticism toward (if not outright hatred of) established spiritual authority on the part of many

Protestant agitators. The Enlightenment began to take shape from these impulses, as men began to rely on their own individual reasoning capacities and a set of elemental moral and justiciable principles that came to be called “natural law,” which was essentially “an attempt to base a new order of Western humanity upon insights gained independently of revelation and the dogmas of the churches.”16 De Ruggiero goes so far as to call

15 Hobbes, Leviathan, 120. 16 Voegelin, “Liberalism,” 513.

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Enlightement natural law17 “a kind of legal Protestantism,” since it depended on the

individual for its origin and interpretation.18 Natural law secures the existence of natural

rights, or liberties due to the individual independent of state existence or action – a concept with revolutionary consequences for the existing social order, since it implies

“the utter negation of privilege, merely because it appeals to the most ancient and inalienable of all privileges, that of being a man.”19

The very next wave of the quest for liberty, freedom from arbitrary rule, resulted

from this new discovery of a ground for legal authority more fundamental than church

sanction. The natural law movement had sweeping implications for established culture.

The implication of the discovery of natural law was simple: if all men were indeed

inalienably equal in their humanity, then no man could restrict another from freely acting

based solely on his own authority. Only the natural law, or a set of legal principles

derived from it, could provide such sanction. John Locke pointed to the previously

established institution of the social contract – a form of democratic sovereignty – as a

way to originate civil society and civil law.20 Many European and colonial nations,

however, possessed legal systems that were either based on longstanding tradition (like

the British common law) or royal decree. This obstacle led the people of nations to rebel

or convene to pen new constitutions in their quest to secure the rule of law over men.

Now at last, America’s tale begins to diverge from that of the continent. The American

Revolution was a rebellion against the arbitrary power of the British monarch in favor of

17 I am using the identifier “Enlightenment natural law” to distinguish this movement’s ideas from the earlier understanding of ius naturalem found in Roman and Stoic writers such as the aforementioned writers Marcus Aurelius and M. Tullius Cicero. 18 De Ruggiero, History, 24. 19 Ibid. 20 Locke, “Second Treatise,” 136-137.

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a constitution guaranteeing “a government of laws, and not of man,” as John Adams said

in 1775.21

Natural law’s power to posit independent and individualistic grounds for society also had effects on commerce and trade. As autocratic political rule was challenged during the aforementioned quest for freedom from arbitrary rule, writers began to apply the principles of natural law to the realm of economics. Among these were the economist

Turgot of France22 and, more notably, English thinker Adam Smith. In his classic

masterwork The Wealth of Nations, Smith claims that all past economic success has been

primarily due to the division of labor.23 He proposes an economic system that would

later come to ground in the practice of laissez-faire economics, based on a lack of

governmental interference in the economy and individual labor as “the real measure of

the exchangeable value of all commodities.”24 The true price of a good is composed of

the value of the labor that it can “purchase or command.”25 This reliable price serves as a proper indicator of the acceptable value of any material good, and can only come to pass

if individuals are left free to work, both in order to make goods and to obtain them.26 Yet the initial advent of the political rule of law (and thus the natural law movement) was

necessary for the ultimate securement of economic freedom, according to theorists David

Schmidtz and Jason Brennan: “If the rule of law channels trade in the direction of

21 “VII: To the Inhabitants of the Colony of Massachusetts-Bay [6 March 1775],” Massachusetts Historical Society, accessed March 20, 2015, http://www.masshist.org/publications/apde2/view?&id=ADMS-06-02- 02-0072. 22 Schmidtz and Brennan, Liberty, 129-131. 23 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Edwin Cannan (1904), Library of Economics and Liberty, accessed March 20, 2015, http://www.econlib.org/library/Smith/smWN1.html, I.1.1. 24 Ibid., I.5.1. 25 Ibid., 1.6.9. 26 Schmidtz and Brennan, Liberty, 131.

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mutually advantageous commerce, then trade will run in that direction, and will to this

extend be liberating.”27

Up until this point, the quest for greater freedom had aimed at securing the ability to choose freely without coercion by an autocratic ruler. With the weakening or removal of these rulers, thanks to the securing institutions of the previous five waves of liberalism, the ideal of self-government became possible for the politically active classes, which at the time comprised propertied landowners. Such was the aim of the French revolutionaries and their American sympathizers, including Thomas Jefferson and

Thomas Paine. Voegelin aptly calls the conflicts seeking this freedom from domestic rule by others “the wars of coalition,”28 since they constituted disagreements between the

landed class and the bourgeoisie over the reins of the governing authority.29 In order to

adequately govern, representative bodies were put into place. The quest for freedom

from rule by others continued to manifest as a desire to secure fuller representation by

giving more citizens the right to vote. In America, the Jacksonian democratic movement,

with its emphasis on the input of the common man, initially illustrated this growing trend.

The aforementioned sixth wave of liberty necessitated a seventh: the freedom from exploitation by privileged groups. In order to make government truly equal in representation, new groups of citizens who had never before been politically privileged or active were allowed to participate in the democratic process. As the sphere of political interaction began to thus expand, some groups agitated for freedom from social and legal

exploitation or oppression by privileged classes. Many of these cries came from women,

27 Ibid., 80. 28 “Liberalism,” 514. 29 De Ruggiero, History, 6-7.

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who began to clamor for greater social and civil rights, and racial minorities like

immigrants and African slaves, but they also emerged from former farmers who had entered the city for factory work in the form of the Populist and Progressive movements.30

An important shift begins to occur with the seventh wave of the quest for liberty,

as many of these oppressed groups begin to implore government to intervene against

privileged groups for their sake. The federal government therefore, beholden as

representatives of the people, obliged by breaking up trusts, allowing workers the right to

unionize, and providing a social safety net for every citizen through government

programs like the New Deal and the Great Society. In essence, it united toward a positive

end: legislating to make people free from social, political, and economic constraints.

The next wave of liberty is related to this project, and expands its horizons:

freedom from the tyranny of the democratic majority, and eventually freedom from any

coercion, whether political or social, in favor of the majority view. Alexis de Tocqueville

and John Stuart Mill both spoke out against this tendency of democratic governments, but while Tocqueville focused on the “soft despotism” that could result from an oppressive political majority, Mill noted the more immediate problem of social coercion.31 He

explains how society can stifle the uniqueness of minorities:

Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves

30 See generally Richard Hofstadter, The Age of Reform (New York: Vintage, 1955). 31 Alexis de Tocqueville, Democracy in America, ed. Eduardo Nolla, tr. James T. Schleifer (Indianapolis: Liberty Fund, 2012), 1245-1261. Also see John Stuart Mill, On Liberty, ed. Stefan Collini (Cambridge: Cambridge UP, 1997), 8.

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fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.32

Mill agreed with von Humboldt that man’s highest end was the full and unique

development of his own individual self.33 He concurrently believed that in a democratic

system, the will of the people boils down to the will of the largest and most publicly active portion of the population, measured in a variety of ways. This cultural majority can and will use their power to coerce any other member of society to abide by their mores. To protect minorities, government embraced the idea of democratic equality,

including as many minorities as possible. It also began to pursue regulation in support of

minorities, rather than regulating against them.

The aims of the seventh and eighth waves of freedom are in tension with those of

the waves before them in three notable ways. Firstly, the theory of democratic sovereignty conflicts with the idea of democratic equality, since it implies a privileged differentiation between one citizen and another. Second, favoring minorities over the

democratic majority violates a clear principle of representative government, namely that

the majority is to govern. Finally, allowing perfect democratic equality in lawmaking

subjects the law to a tug-of-war between competing particulate interests, rather than favoring the rule of law.

Currently, all eight of these previously mentioned “waves” of freedom are still stirring up our cultural waters. Most recently, a ninth wave has begun to appear, made possible by rapid recent advances in science and technology. It is a movement toward freedom from our own biology and psychology – from our very nature. It can be seen in

32 Mill, On Liberty, 8. 33 Ibid., 3.

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the recent governmental shift toward providing universal health care, and the growing

public acceptance of the practice of allowing same-sex couples to legally marry. More

radical are visionaries like Ray Kurtzweil, who believes that human beings will someday

be surpassed by our computers. According to Kurtzweil, machines will become

artificially intelligent, opening up a whole array of possibilities according to an article

tellingly entitled “2045: The Year Man Becomes Immortal.” The writer breathlessly

speculates:

Maybe we'll merge with them to become super-intelligent cyborgs, using computers to extend our intellectual abilities the same way that cars and planes extend our physical abilities. Maybe the artificial intelligences will help us treat the effects of old age and prolong our life spans indefinitely. Maybe we'll scan our consciousnesses into computers and live inside them as software, forever, virtually … The one thing all these theories have in common is the transformation of our species into something that is no longer recognizable as such to humanity circa 2011. This transformation has a name: the Singularity.34

This astonishing new trend toward absolute freedom from our selves creates two

major problems for the liberal movement in the future. Firstly, as C.S. Lewis worries in

The Abolition of Man, we may end up destroying our humanity and all that comes with it

by ridding ourselves of our nature.35 This would not only include our ability to make our

own moral choices (since without our human nature we would have no knowledge or

desire to choose morally), but also could well rid us of all of the freedoms previously

discussed in this chapter, with their attendant institutions.

Secondly, many religions would be horrified at such action, and characterize it as

“playing God.” Returning to the point made near the beginning of this investigation of

34 Lev Grossman, “2045: The Year Man Becomes Immortal,” Time, February 20, 2011, accessed March 20, 2015, http://content.time.com/time/magazine/article/0,9171,2048299,00.html. 35 In The Complete C.S. Lewis Signature Classics (New York: HarperOne, 2007), 723.

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liberty,36 if the state decides to armor the liberties of biological freedom as rights and coerce citizens to participate in their fulfillment, rather than leaving them alone, it will lead to tension with the earliest wave we examined – religious liberty. A growing, socially powerful contingent of Americans unchecked by religious faith nevertheless sees freedom from human nature as the ultimate expression of self-government, the goal of positive liberty. It thus dogmatically puts forward that end as the proper one for the state to pursue. If this group is allowed to control the coercive state as well, religious protests against this wave of freedom will be forcibly silenced.

After examining liberalism in this manner, I can draw two important conclusions.

First of all, as Voegelin says, “the problem of permanent revolution is involved in liberalism.”37 I have shown that many, if not all, of the waves of liberalism have a connection to the events and ideas of the waves before them. This is consonant with the pattern of modern social upheaval, which does not seem to have a clear stopping point, since “there can be no compromise of stabilization of the achievements at a definite point. For as soon as a plateau of stabilization is permitted, the revolution is over.”38

Secondly, government shifts from a goal of securing the freedom to choose to a positive conception of liberty during the attempt to secure the freedom from domestic rule by

others. Such freedom can only be fully secured by state action against privileged groups,

the next sought after wave of freedom.

Our examination of the nine waves of liberalism has also revealed that the guaranteeing of certain freedoms as rights by the governing authorities can cause further

36 See 66. 37 Voegelin, “Liberalism,” 510. 38 Ibid., 509.

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conflict and strife, since these new freedoms clash with other, previously held freedoms.

Given this issue, should government be restrained from positing a moral end for liberty?

Any version of positive liberty can contain one or both of two elements: a moral vision and an active state. To have a moral vision is acceptable and good. It is when we mandate that the state should act to secure our particular moral vision to its people that problems begin to arise, due to the value pluralism of our current liberal society. Citizens of liberal regimes are accustomed to having their liberty to freely choose their own moral ends reasonably protected by discrete legal capsules called rights. Thus, they may adopt one moral viewpoint over other equally respectable views, and attempt to persuade others to do the same through discussion and engagement. However, the state has the power to coerce citizens to obey its laws by force. Society, too, has a similarly coercive power, as

Mill revealed above. If either the state or society shows a legislative preference for one ordering of goods above another, then they arbitrarily remove negative liberty from those who hold to other moral value systems.

Therefore, the dramatic liberalizing of society, driven by the variety of moral visions positing their own arrangements of liberties (and thus rights), combined with the shift from a negative understanding of liberty to a positive one, causes much of the

conflict in rights talk today. The massive clamor and clash of competing liberties armored as rights creates a cacophony that makes discussion of what is actually

politically good or essential next to impossible.

Today in post-New-Deal American politics, the state is equipped as an instrument

of positive liberty. Although the federal government’s power has waxed and waned, it

has grown stronger overall. Two major political parties, composed of competing

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coalitions of social interests and political maneuverers, seek to gain control of the awesome power of our active government at every election cycle in order to make secure

their own respective positive moral visions for the entire country. Thus, campaign spending based on ideological views has grown exponentially over the past twenty years.39 Polarization has become the rule of the day in society, as every citizen feels compelled to pick a side or be lost in the scramble for liberty. In fact, “Republicans and

Democrats are more divided along ideological lines – and partisan antipathy is deeper

and more extensive – than at any point in the last two decades.”40 What can we possibly

do, given the permanence of the liberal revolution and the corresponding conflict

between liberties that we find in modern society, to diffuse this “dogmatomachy?”41

We can only hope to find an agreeable arrangement for our competing conceptions of liberty through genuine political engagement and discussion, coupled with the realization that the government must be restricted to legislating according to a negative conception of liberty as the ability to freely choose. In adjudicating between the overwhelming array of rights that confronts us, we must ask which goods are most existentially needful. As a nation, we must decide the extent to which we should be allowed to govern ourselves individually, according to our conceptions of the good. Alan

Dershowitz explains our quandary this way: “The difficult question is whether it is wise to ‘constitutionalize’ so many areas of what have been traditionally been deemed matters

39 “Ideology/Single Issue: Long-Term Contribution Trends,” OpenSecrets.org Center for Responsive Politics, accessed March 20, 2015, http://www.opensecrets.org/industries/totals.php?cycle=2010&ind=Q. 40 “Political Polarization in the American Public,” Pew Research Center, June 12, 2014, accessed March 20, 2015, http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/. 41 Eric Voegelin uses this term in passing in “The Drama of Humanity” and “What is Political Reality,” both found in The Collected Works of Eric Voegelin (Columbia: University of Missouri Press, 2000), 174- 177, 385-391. It can be parsed to mean “a war of dogmas.”

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of politics and policy.”42 Which liberties do we want to remove from the realm of free

choice and allow the judicial branch of government to determine how they may be expressed?

Coercion on this matter will likely be unsuccessful, causing further resistance and

thus even more conflict. Only patience and persuasion can successfully change minds.

This truth necessitates intentional regulation of the state’s ability to armor positive

liberties as rights. If positive liberties are guaranteed to citizens, they will become more

dependent on the government to secure their moral visions for them. They will lose

interest in choosing the good for themselves, and will acquiesce to the ordering of goods that the government provides. If, in addition, social pressures are made to align entirely with those of government, the entire polis would become an inactive place, with liberty

only in name. The masses would depend on the government and the media for moral teaching, consuming whatever pre-packaged allowance the social order would provide.

However, if we choose to take another road, to discuss the differences between our orderings of rights and return to a government bent on protecting its citizens’ ability to

structure their lives in order to pursue the good, we may yet avoid this future.

But what hope is there for comprehensive political engagement on these issues in

the future? After all, given America’s woeful levels of civil literacy, it is unclear whether

many Americans even possess a passing interest in politics. A study performed in 2014

showed that just over a third of Americans can even name all three branches of

42 Dershowitz, Rights, 168.

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government, while another third cannot name a single branch.43 Nevertheless, Americans

have begun to realize the harmful nature of our current all-or-nothing partisan war of freedoms. A genuine dialogue on the difference between negative and positive conceptions of liberty, aiming at an understanding of these two concepts and their impact on our society when legally armored as rights, would be an excellent place to begin in our quest to end our culturally harmful war of freedoms.

43 “Americans know surprisingly little about their government, survey finds,” Annenburg Public Policy Center, accessed March 20, 2015, http://www.annenbergpublicpolicycenter.org/americans-know- surprisingly-little-about-their-government-survey-finds/.

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APPENDICES

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APPENDIX A

Alan Dershowitz’s List of Conflicting Rights

RIGHT COUNTER-RIGHT Right to life of fetus Right to choose abortion Right to life of dying person Right to assisted suicide Right not to be executed Right to have loved one avenged Right to be well fed Right of animals not to be eaten Right to keep and bear arms Right to safe streets Right of criminal defendants Right of victims Right to free speech Right not to be offended Right to keep one’s money Right to equitable distribution of wealth Right-to-work law Right to collectively bargain Right to sexual privacy Right to a moral society Right to influence elections by voters Right to equality of contributions Right to be a free agent in sports Right of team to continuity Right of employee to a four-day work week Right of employer to labor of work-week employee Right to privacy and anonymity Right to know who is criticizing you on the Internet Right to confidentiality (lawyer, minister, Right to subpoena relevant information doctor, rape counselor, etc.) Right of parents to control access to Right of grandparents to visit grandchildren children Parental right to remove child from school Right of child to education and to choose for religious reasons different life Right of parent to refuse medical treatment Right of child to live and choose different for child on religious grounds religion Right of parent to discipline harshly Right of child to be free from abuse Connubial rights of husband Right of wife to refuse Right to smoke Right not to be subjected to secondhand smoke Right to clean environment Right to a job that would be eliminated by environmental concerns Right to a bilingual education Right to linguistic uniformity Right to an organ from dead Right of person to be buried with organs Right of parents to know of underage Right of daughter to choose abortion daughter’s abortion without parents knowing Right to choice of doctors Right to equal medical care Right not to be tested for DNA Right to evidence of innocence Right to build a church, synagogue, or Right to residential control

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mosque in neighborhood Right to fair housing practices Right to live in homogeneous neighborhood Right to proselytize Right to be free from proselytization Right to treatment Right to refuse treatment Right to confidentiality of tax information Right to relevant information Rights of animals Rights of humans to use animals for medical experimentation Right to genetic privacy Right of insurer or employer to assess risks Right of defendant to have victim’s body Right of victim’s family to peace for disinterred for DNA testing victim’s body Right of rape victim to have defendant Right of defendant to presumption of tested for sexually transmitted diseases innocence and privacy Right of rape victim to have her identity Right of defendant to disclose name of undisclosed alleged victim in order to elicit challenge to her credibility Right of gay couple to adopt Right of child to be adopted by heterosexual family Right to quote from and parody any written Copyright of author work Right of owner to alter art Right of artist to integrity of his art Right to know of sex offenders in Right of privacy after serving sentence neighborhood (Megan’s Law) Right to your name and identity Property right in domain names fairly purchased Right to prevent stranger from changing his Right to choose an identity name to yours Right to express sexist, racist, homophobic, Right to be free from hostile environment and other bigoted views Right to jury nullification Right to equal protection of law Right to procreate without limits Right to live in an uncrowded world Right to borrow money without excessive Right to make profit on risk interest Right to refuse to testify against your child, Right to everyone’s testimony parent, spouse, friend, etc. Right to a hand recount of machine votes Right to a final machine vote without “subjective” recount Right to be free from racial or ethnic Right to be safe from hijackers and other profiling criminals Right to anonymity Right to be protected from identity theft by a foolproof national identity card Found in Rights From Wrongs, 166-168.

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APPENDIX B

Full List of Rights Claimed In the Universal Declaration of Human Rights

• Right to life • Right to liberty • Right to security of person • Right to not be enslaved • Right to not be tortured • Right to not be subjected to cruel punishment • Right to not be subjected to inhuman punishment • Right to not be subjected to degrading punishment • Right to not be subjected to cruel treatment • Right to not be subjected to inhuman treatment • Right to not be subjected to degrading treatment • Right to recognition as a legal person • Right to equal protection of the law • Right to equal protection against discrimination that violates the Universal Declaration of Human Rights • Right to equal protection against any incitement to discrimination that violates the Universal Declaration of Human Rights. • Right to have violations of rights granted “by the constitution or by law” remedied by national tribunal • Right to not be arbitrarily arrested • Right to not be arbitrarily detained • Right to not be arbitrarily exiled • Right to a fair hearing by an independent and impartial tribunal • Right to a public hearing by an independent and impartial tribunal • Right of defendant to be presumed innocent until proven guilty according to law • Right to not be held guilty according to a law that was not in effect at the time of a previous action or omission of action • Right to not be given a heavier penalty than the law that was in effect at the time of a crime mandated • Right to not have one's privacy arbitrarily interfered with • Right to not have one's family arbitrarily interfered with • Right to not have one's home arbitrarily interfered with • Right to not have one's correspondence arbitrarily interfered with • Right to not be subjected to attacks upon one's honor • Right to not be subjected to attacks upon one's reputation • Right to protection of the law against violation of the previous six rights • Right to freedom of movement within the borders of each state

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• Right to freedom of residence within the borders of each state • Right to leave any country • Right to return to one's own country • Right to seek asylum in other countries if you are being prosecuted for a political crime that is not against “the purposes and principles of the United Nations.” • Right to enjoy asylum in other countries if you are being prosecuted for a political crime that is not against “the purposes and principles of the United Nations.” • Right to a nationality • Right to not be deprived of one's nationality • Right to change one's nationality • Right to marry if you are “of full age” • Right to found a family if you are “of full age” • Right to equal rights relating to marriage • Right to equal rights during marriage • Right to equal rights in the dissolution of marriage • Right of the family to protection by the society and the state • Right to own property alone • Right to own property in association with others • Right to not be arbitrarily deprived of property • Right to freedom of thought • Right to freedom of conscience • Right to freedom of religion • Right to freedom to change religion • Right to freedom to change belief • Right to freedom to manifest religions or beliefs alone • Right to freedom to manifest religions or beliefs in community with others • Right to freedom to manifest religions or beliefs in public • Right to freedom to manifest religions or beliefs in private • Right to freedom to manifest religions or beliefs in teaching • Right to freedom to manifest religions or beliefs in practice • Right to freedom to manifest religions or beliefs in worship • Right to freedom to manifest religions or beliefs in observance • Right to freedom of opinion • Right of freedom to hold opinions • Right to freedom of expression • Right to seek information and ideas “through any media and regardless of frontiers” • Right to receive information and ideas “through any media and regardless of frontiers” • Right to impart information and ideas “through any media and regardless of frontiers” • Right to freedom of peaceful assembly

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• Right to freedom of peaceful association • Right to not be compelled to belong to an association • Right to take part in the government of one's country "directly or through freely chosen representatives" • Right of equal access to public services • Right to social security • Right to realization of economic rights • Right to realization of social rights • Right to realization of cultural rights • Right to work • Right to free choice of employment • Right to just and favorable working conditions • Right to protection against unemployment • Right to equal pay for equal work • Right to just and favorable remuneration which ensures you and your family of “an existence worthy of human dignity” • Right to have your remuneration supplemented by social protection if necessary • Right to form trade unions • Right to join trade unions • Right to rest • Right to leisure • Right to reasonable limitation of working hours • Right to periodic holidays with pay • Right to a standard of living adequate for you and your family's health and well- being • Right to food • Right to clothing • Right to housing • Right to medical care • Right to necessary social services • Right to security in the event of unemployment • Right to security in the event of sickness • Right to security in the event of disability • Right to security in the event of widowhood • Right to security in the event of old age • Right to security in the event of “lack of livelihood in circumstances beyond [your] control” • Right of mothers to special care • Right of mothers to assistance • Right of children to special care • Right of children to assistance

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• Right to education • Right to free elementary and fundamental education • Right to the general availability of technical and professional education • Right to equal accessibility to higher education based on merit • Right of parents to choose the kind of education given to their children ight to freely participate in the cultural life of the community • Right to enjoy the arts • Right to share in scientific advancement • Right to share in the benefits of scientific advancement • Right of the author to the protection of moral interests resulting from scientific productions • Right of the author to the protection of moral interests resulting from literary productions • Right of the author to the protection of moral interests resulting from artistic productions • Right of the author to the protection of material interests resulting from scientific productions • Right of the author to the protection of material interests resulting from literary productions • Right of the author to the protection of material interests resulting from artistic productions • Right to a “social and international order in which the rights and freedoms set forth in this Declaration can be fully realized

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