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 ii 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. iii 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. 1 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: 2 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. 3 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.