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Have a Right!”
by Charles W. Baird
Lots of people make this claim without even thinking about the
nature and source of rights. What are rights, and where do they
The progressive or interventionist view is that so long as
legislation is adopted under the rules of procedural due process,
government creates and extinguishes rights. For example, Congress,
by following the rules of legislative process outlined in the
Constitution, can create or extinguish a right to a job, a right to
an education, or a right to food.
When progressives wish to expand the scope of government they
often make a distinction between a "privilege" and a "right." In
this view, something is a privilege only if a person can acquire it
through his own means; and something is a right if government uses
tax money or other coercive powers to provide it to individuals
irrespective of their means. Really important things, they say,
ought to be rights, not privileges. Thus health care in America was
once a privilege, but now it's touted in both rhetoric and law as a
In the Declaration of Independence, Thomas Jefferson wrote about
"unalienable" rights that all individuals have irrespective of
government. According to him, all humans are "endowed" with these
rights by God. Some of Jefferson's colleagues said that "nature"
endowed humans with rights-i.e., that rights are inherent in human
nature. In either case, rights are logically prior to government.
Government has no legitimate authority to add to or subtract from
such rights. Its role is to protect them.
If something is a human right in the Jeffersonian sense, it
applies to all individuals merely by virtue of their humanity. If
one person has such a right, all other humans must logically have
the same right. One cannot, without self-contradiction, claim a
human right for himself and deny it to others. To do so would be to
admit that the right is not a "human" right.
Moreover, it must be possible for all individuals to exercise
the claimed right simultaneously without logical contradiction.
When I exercise a right I have claimed, it is thereby impossible
for someone else to exercise the identical right at the same time,
my action implies that the alleged right does not inhere in human
nature. My action implies that it is my right and not the right of
the other person.
For example, suppose I claim a right to a job. If that claim
means that I will be employed any time I wish to be (what else
could it mean?), there must be some other person who has the duty
to provide the job. But then that other person does not have the
same right I have. My right is to be employed, his "right" is to
provide the job. My right creates a duty for him to
undertake some positive action that he may not want to undertake.
Notwithstanding that we both are human, his freedom of choice is
subordinated to my freedom of choice.
Is there any job-related fundamental human right in the
Jeffersonian sense? Yes, it is the right of all individuals to
offer to buy or sell labor services at any terms they choose. I
have a right to offer to sell my labor services at terms I like,
and so do you. We all can exercise that right without thereby
denying it to anyone else. I have a right to offer to buy (employ)
the labor services of any other person at terms I like, and so do
you. We can do so without thereby denying the right to anyone else.
Those to whom you and I extend our offers are free to reject them.
In exercising these rights we impose no duty to undertake any
positive action on any other person.
Apply the same test to the right to food, the right to an
education, and the right to health care. Are any of these
fundamental human rights? If they are interpreted to mean that
individuals will receive food, education, and health care no matter
what other people want, they are not fundamental human rights. We
all have a fundamental right to offer to buy or sell
food, education services, and health care at any terms we like, but
if we cannot find others who are willing to accept our offers, we
have no right to force them to do so.
Apply the same test to the rights guaranteed by the First
Amendment: freedom of religion, freedom of association, freedom of
speech, and freedom of the press. These are all fundamental human
rights. We each can exercise free choice of religion without
denying that right to others. Note, however, we have no right to
join a religious organization that doesn't want to accept us. We
each can associate with any individuals or groups, but only so long
as they are willing to associate with us. Exercising that right
does not make it impossible for others to do the same. We each can
say what we like without denying that same right to others. Note
again, however, we have no right to force people to listen, or to
provide us with a forum in which to speak. We each are free to try
to assemble the necessary resources, by voluntary agreements with
others, to publish a newspaper or a magazine (or a blog). But we
have no right to force people to provide those necessary resources
or to purchase or read our publications.
Note that the progressive and the Jeffersonian views of rights
are not only different, they are incompatible. Any time a right
claimed by anyone imposes a duty on another to undertake positive
action, the alleged right cannot possibly be exercised by both
simultaneously without logical contradiction.
The progressive view of rights is often called the positivist
view because such rights necessarily impose duties to undertake
positive actions on others. It is part of a larger philosophy
called legal positivism which asserts that rights are whatever
government says they are.
The Jeffersonian view of rights is often called the negative
view because the only duty imposed on others by such rights is a
duty to refrain from undertaking a particular action. It
is a duty to refrain from interfering with others. Moreover, in
this view, government itself is bound by the rights justly claimed
by all individuals.
The next time you say, "I have a right," ask: "Who has the
duty?" If there is anyone who has a duty to do anything except
refrain from interfering with you, ask: "On what grounds do I claim
a right to subordinate that person's will to mine?"
"Freedom or Free-for-All?" by Lawrence W. Reed: http://tinyurl.com/ks94kt4
"Do We Really Want a Right to Health Care" by Theodore Levy: http://tinyurl.com/md7uccz
"Of Rights: Natural and Arbitrary" by Clarence B. Carson:
"Rights" by Henry Hazlitt: http://tinyurl.com/ojhxgcq
(Editor's Note: This essay appeared as the first chapter in
FEE's 1994 anthology, "Cliches of Politics." Charles W. Baird
isa professor of economics emeritus at California State
University at East Bay.)