No Matter What The Law Says, I Have A Right To Do X. No, You Don’t
David Grace (www.DavidGraceAuthor.com)
Rights In The Real World
The point of this article is to consider the question of people’s rights in a practical, real-world context instead of merely accepting the dogma of innate rights granted by natural law.
When people declare that they innately have certain rights because God wants it that way, they’re really just stating their opinion about how they think the world ought to work, as if their idea was a fact. In fact there’s no logic or evidence behind it. It’s just a claim that something is true as a first principle, case closed.
For the purpose of this article I’m going to instead talk about society’s rules governing human behavior from a more real-world point of view.
Saying That The Government Should Do Something For You Because You Have A Right To It, Dodges The Question
A few weeks ago a good friend of mine who is a conservative wrote an essay disagreeing with people who claimed that they had a right to government-supported health care. I agreed with him.
Here’s part of the email I sent him in response to his post:
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I read your column that asked the question: “Do people have a right to health care?” and I wanted to suggest a different way of looking at things.
Suppose that you and I were partners in a business and we needed to hire a new secretary. I wanted the blonde because I thought she was prettier than the other candidate. You wanted to hire the brunette because you thought she was the prettier of the two applicants.
If we did that our first mistake would have been to fail to realize that “pretty” is a subjective determination. It’s not subject to rational proof or argument. It’s just a statement of individual opinion, and therefore it’s useless as a criteria for measuring or deciding anything.
Our second error would have been that “prettiness” is the wrong criteria to use in deciding which job candidate to hire.
That’s the problem I have in talking about whether health care as a “right” or not, namely
(1) it’s a subjective issue whose answer is based on each person’s political religion and
(2) in any event, defining it as a right or not as a right is the wrong criteria.
A liberal will tell you that everyone has a “right” to health care and a conservative will tell you that they don’t. Both are resorting to subjective principles based on their own personal political religions.
It’s the governmental equivalent of “He said/She said.” It gets us nowhere.
Suppose that there was a debate about whether or not to have a municipal fire department. The liberals would say that everyone had a right to fire protection. The libertarians would say that there was no right to fire protection, and that if you wanted fire protection you should subscribe to a private fire department.
That entire debate would be pointless because you don’t have a fire department primarily to do the citizens a favor or because it’s some kind of a “right.” It’s not at all about being “fair” or fire protection being a supposed “right.” Those are the wrong criteria.
You have a municipal fire department to keep a fire in an unprotected neighborhood from burning down a material portion of the rest of the city. It’s not at all about helping people, being nice to people, honoring people’s rights, etc.
It’s a determination that it does more good than harm to have a municipal fire department because it keeps the city from burning down, avoids mass homelessness, loss of businesses, damage to infrastructure, costs to the medical system, etc.
You do it because there are real, rational, objective benefits to the city from doing it and there are real, objective risks and losses from not doing it, and therefore, on balance the benefits outweigh the detriments.
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(As an aside, my friend’s essay disputing the claim that people have an innate right to tax-supported health care prompted me to come up with a health care plan that was privately funded and privately operated. I outlined this plan in my article: A Health Care Plan That Follows Republican Principles And Still Works)
People Claim That They Have An Innate Right To All Kinds Of Things
People are not only claiming that they have an innate, God-given right to tax-payer-supported health care. People are claiming that they can do all sorts of things based on claimed innate rights.
Recently, I read a comment someone posted along the lines of: “I have the right to pay my employees five dollars an hour if they’re willing to accept it.”
These days you can’t swing a dead cat without hitting someone who’ll tell you, “I have a right to do XXXXX” or “I have a right be given XXXXX.”
As A Practical Matter, You Have The Rights Your Society Says You Do
When you live alone in the middle of the wilderness you have the right to do whatever you want so long as it doesn’t affect somebody else, meaning that you can run around naked shouting obscenities all day long if you want, but you can’t set off a small nuclear device because that would affect other people.
The minute you start living someplace where your actions or inactions can affect other people, you and everybody else get a say about what people can and cannot do, unless you’re living in North Korea in which case only one guy gets to say what people can and cannot do.
Whether it’s a democracy or a dictatorship or anything in between, there are always going to be rules about what you must do or cannot do.
- In a household, mom and dad may make the rules.
- In a commune or collective, all the members may directly vote on the rules.
- As the number of people in the community grows, the members may vote for representatives who make the rules.
No matter how you slice it, there are always going to be rules that apply to all the members of any society.
Why?
Because the actions people take and don’t take affect others and that means that the others will always insist on having their say. Always have. Always will.
There Will Be Bad Laws
That’s not to say that in a democracy the community’s representatives always make good choices in deciding what you can’t do or what you have to do.
Lots of rules are going to be unfair and unreasonable or just plain bad ideas.
It would be great if everyone were smart, reasonable, thoughtful, fair, impartial, unbiased and generous and if they brought all those qualities to bear when it was time to consider a new bunch of proposed rules. But many people aren’t that way and, as yet, there’s no way to fix that.
So, in addition to useful, helpful, and beneficial rules we’re also going to get stupid rules, mean rules, unfair rules and rules that do more harm than good.
Nevertheless, unless they’re held unconstitutional, they’re still going to apply to you. If you don’t like them, you can try to change them, but you don’t have a right to disobey them without suffering the consequences.
The More Important Conduct Is, The More Hoops Society Has To Jump Through To Restrict It
One of the ways we try to compensate for the fallibility and perversity of human nature is to make some rules that we think are especially important really hard to change. In America we put those rules into a basic governing document, the Constitution, and we made it very difficult to change that constitution. But not impossible.
There are other legislative barriers we can use to protect or prohibit rules affecting important types of conduct.
We might require a two-thirds vote or a three-quarters vote or the simultaneous vote of several different groups or the vote of several legislative bodies plus the consent of some other elected or appointed officials, but at the end of the day, under one procedure or another, your community gets to decide whether or not what you want to do or don’t want to do will or won’t cause more trouble than it’s worth and it gets to enforce those rules on you.
Before you get really upset and tell me that the government can’t make those decisions, remember that when World War II started men were required to quit their jobs, leave their families, go to foreign countries and kill and be killed.
You can’t get much more intrusive of a person’s freedom than ordering them against their will to leave home, fight and die. But that’s what the community did because it decided it was needed and people sucked it up and had to do what the law required.
As A Practical Matter, No Country Recognizes Absolute Rights
Even if the Constitution isn’t amended to eliminate or restrict what people generally consider to be fundamental rights, you don’t really have the rights it appears to say you have.
Actually, what you have are the rights the Constitution grants you up to the point where the Supreme Court thinks that their exercise might unreasonably injure other people. Then you don’t have them anymore.
For example, you have the right to freedom of religion, unless your religion says that
- You can have multiple wives
- You can have sex with twelve-year old girls and boys
- You can have ritual human sacrifices so long as the sacrificee agrees to be killed
and then you don’t have the right to freedom of religion anymore.
The Second Amendment gives you the right to keep and bear arms, but if your chosen weapon is a fully automatic machine gun, then, guess what, you don’t have that right anymore.
You have the right of freedom of speech except
- If what you say is untrue
- If what you say is a government secret
- If what you say is copyrighted
- If what you say uses a celebrity’s name to sell a product without his/her permission
- If what you say is a request that someone murder a named person living at a stated address
in which case you don’t have a right to freedom of speech anymore.
You have a right to life except if you murder six people in a shopping mall in Dallas in which case you don’t have a right to life anymore.
I could go through freedom of the press, the right to peacefully assemble, etc. but you get the point.
This is how things work in every single country on the face of the earth, though, again, in places like North Korea, the people who have a say in making the rules may not be all the people in your community but rather just one bat-shit crazy bastard with a really scary army to back him up.
That Doesn’t Mean There Are No Absolute Rights
I can hear you shouting at me even now. You’re saying:
“Wait a minute, Dave. Suppose Hitler had held a referendum in Germany in 1937 on the question of exterminating the Jews. Suppose he pushed it really hard and a majority of German citizens had voted, ‘Yes, let’s kill all the Jews.’”
“Are you seriously claiming that the Wexlers and the Cohens and the Edelmans wouldn’t be able to say that the murder law violated their rights no matter how many people voted for it?”
No, I’m not. Of course they would.
“Why would people have the right not to be subject to that law when you say they don’t have an innate right to be exempt from other laws?” you ask.
Superseding Laws
First, a city can’t make something legal that is illegal under county law. The county can’t make something legal that is illegal under state law. The state can’t make something legal that is illegal under federal law.
And a country can’t make something legal that is illegal under international law.
So, the easy answer is that no matter what law the citizens of Germany might have passed it would not make their actions legal under international law and the German Jews would have a right to life under international law in spite of the fact that under a local German law they would not.
But that’s kind of a cop-out. The Germans were tried for violating the rules of war and thus the War Crimes Tribunal at Nuremberg only concerned itself with events that happened after the start of the war in 1939, not the killings the German government committed prior to that date.
Laws Punishing Conduct Are Different From Laws Punishing Status
The better answer is that a community has an arguable justification for and a self-interest in making laws allowing, requiring or punishing a member’s actions. That justification would not apply to a German murder law. That law would not punish actions. It would punish people not for what they did but for what they were.
A society can justify a law that says you will punished if you shout “Fire” in a crowded theater. That conduct is potentially dangerous to others.
The same justification doesn’t exist for a law that says that a black person cannot watch a movie in that same theater.
It’s the difference between a law that punishes you for what you do and one that punishes you for what you are.
We Have To Obey Bad But Constitutional Laws Until We Change Them
I have a lot of disagreements with the things the Congress allows people to do that I think cause more harm than good, but I recognize that everybody, everywhere, at every time in history has been and is now subject to their society’s rules that they don’t like that regulate their conduct.
You may have the nicest factory in America but unless and until the law is changed you don’t have a right to pay people five dollars an hour and not pay overtime.
And you don’t have the right to taxpayer-funded medical care, though I think it would do far more good than harm to create a system that made medical care available to every citizen.
That’s the standard, by the way — within the overriding protection of the Constitution, some level of a majority or super-majority of the other people in your society has decided that forbidding this or requiring that will do more good than harm.
You can voice your opinion that something is a bad law. You can work to have the law repealed. In the tradition of a great American, Martin Luther King, you can disobey the law if you’re willing to accept the consequences of that disobedience.
But I would argue that in a democracy you don’t have the right to both disobey the law and also be exempt from the consequences of that disobedience.
– David Grace (www.DavidGraceAuthor.com)
