In Thomas Jefferson’s initial draught of the US Declaration of
Independence, inherent rights are at the forefront:
We hold these truths to be sacred & undeniable; that all men are created equal & independant, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness;
— Thomas Jefferson, Original Rough Draught of the Declaration of Independence, June 1776
These clauses form the basis for the most quotable sentence in the
final document, where Jefferson’s original was modified by others to
read:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
— The US Declaration of Independence, 4 July 1776
Note that “from that equal creation” became “endowed by their Creator”.
Published shortly before Virginia native Jefferson’s rough draft, the
Declaration of Rights by the Virginia Constitutional Convention
contained affirmations of inherent rights similar those made by
Jefferson, with an additional assertion of a civic right to property.
There was a partial list of rights of men in Virginia, and Jefferson
will have been well aware of its content:
Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
...
Section 11. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred
— Virginia Declaration of Rights, 12 June 1776 [My emphasis]
In Virginia, to be a slave was not treated as really human (not a “man”
with any inherent or civic rights); slaves were treated as a man’s
“property”. Many years later, treating humans as property (because that
was what the US Constitution allowed) created the infamous Dred
Scott v Stanford decision by the US Supreme Court.
There is a world of difference between the metaphysical claim in
the US Declaration of Independence that every person has an inherent
right to life and to liberty, and the pragmatic requirement in
the Virginia Declaration of Rights that people should not be deprived
of the enjoyment of life and their liberty. Societies differ and a
metaphysical “inherent” right is only worth anything in a particular
society if, pragmatically, it is also considered a “civic” right in
that society. Any inherent right is only a right if it is an agreed
civic right, and that agreed civic right is enforced by civic society
(“... the ancient trial by jury is preferable to any other”). To claim
an inherent right to “liberty” (from a creator?) might make a
persuasive ideology but, in a conflict between different people’s
liberties, the supreme authority is not a god creator but some
sanctioning civic institution such as the judicial system.
After the US Constitution was adopted, there were pressures to clarify
what were rights and what society could do to curtail those rights:
The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:
— Preamble, US Bill of Rights, ratified 15 December 1791 (my emphasis)
In the language of the time, clauses to be added to the US Constitution
were further stipulations that either were “affirmative; expressive;
not decretory; not promissory” (declaratory) or were “expressing
limitation” (restrictive) — definitions taken from a contemporary
dictionary by Samuel Johnson [2]. Decretory is defined by
Johnson as “judicial; definitive”; thus declarative clauses — which are
not decretory — are not dependent on judicial processes, they just
exist. In other words, there were two types of clauses: clauses
affirming the inherent rights of individuals (rights independent
of any societal process); and clauses blocking impositions on the
civic rights of individuals.
By 1791, philosophies and ideologies of rights had generated many different ideas both of what were “rights” and of the freedom/liberty to enjoy those rights: for example, John Locke [1] wrote a second treatise on government that influenced many of the colonist intellectuals. When we look at the US Bill of Rights, there are no inherent rights defined, there are only civic rights. Ultimately, the designers of the Bill realized that giving general definitions of rights or of admisable powers was well-nigh impossible and so — after enumerating a few rights and a few powers in previous amendments — there were the cop-out amendments, and no definitions of either rights or powers:
By 1791, philosophies and ideologies of rights had generated many different ideas both of what were “rights” and of the freedom/liberty to enjoy those rights: for example, John Locke [1] wrote a second treatise on government that influenced many of the colonist intellectuals. When we look at the US Bill of Rights, there are no inherent rights defined, there are only civic rights. Ultimately, the designers of the Bill realized that giving general definitions of rights or of admisable powers was well-nigh impossible and so — after enumerating a few rights and a few powers in previous amendments — there were the cop-out amendments, and no definitions of either rights or powers:
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
In a controversy between one person’s liberty to smoke (a right?) and
my liberty not to have my lungs assailed by that person’s nicotine
pollution (a right?) we need a system of laws, and the power to enforce
those laws. The preservation of liberty does not mean unfettered
freedom, rather it means we need strong judicial sanctions to enforce
conflicting liberties, and civic society government is the enforcer.
For example, a owners of a power station can claim a freedom to produce
energy in any way they wish, whereas those who are affected by
pollution from that power station can claim a freedom from aggression,
a freedom not to have their property assailed by that pollution — their
property might be the water they drink or the air they breathe. To
obtain redress for this aggression by the owners of power stations --
the creators of pollution — requires either civic law or physical force
(the law of the gun) — civic law might also involve physical force.
In an
interview with Jon Stewart, a libertarian-inclined guest (Rand
Paul) said “you don’t have the right to pollute your neighbour’s
property” (my emphasis, it is a civic right). We might ask: who
is the enforcer of the laws that say you (as a neighbour) should not
have your property polluted? Who has the power, and who creates the
laws? — Tea-Party supporter Rand Paul is a senator from the state of
Kentucky, and neighbouring states want to stop pollution from
Kentucky’s power stations. Paul tried to introduce legislation in the
US Congress that defined emissions from Kentucky power stations as
admissable, as non-aggressive — a civic right to pollutes. Liberty (or
freedom) seemed less important than commercial interests or the next
election when he proposed a bill that “Would rein in
out-of-control EPA rule that hurts Kentucky coal families\ — this
went down well with his constituents and those who contributed
to his campaign coffers.
A fellow Republican and senator from another state did not agree: Kelly Ayotte said “The reality is that air pollution does not stop at state borders, and New Hampshire should not be the tailpipe for pollutants from out-of-state power plants. It is a matter of common sense to ensure that one state’s emissions are not unduly harming another state’s air quality.”
A fellow Republican and senator from another state did not agree: Kelly Ayotte said “The reality is that air pollution does not stop at state borders, and New Hampshire should not be the tailpipe for pollutants from out-of-state power plants. It is a matter of common sense to ensure that one state’s emissions are not unduly harming another state’s air quality.”
Paul did not think property rights were sacrosanct, because they were
definitely civic rights that depended on the law: states’ property
rights — freedom from another state’s unpleasant emissions in your
state — were not sufficiently important because his (polluting) state
needed the jobs. Whether tobacco smoke is a killer or not (it is
a killer) does not affect the unpleasantness of having to suffer
another’s cigarette smoke, and whether power-station pollution is a
health risk or not (it is a health risk) does not affect the
unpleasantness of having to suffer the pollution. In a contrary stance,
the junior senator from Kentucky ignored the unpleasantness of Kentucky
power-station emissions, and tried to redirect attention, by saying
that declining pollution had been accompanied by an increasing
incidence of asthma.“We have
decreased pollution and rising incidents of asthma, so either they're
inversely proportional or they're not related at all.” Paul and his
ilk ignore the multiple possible causes of asthma such as respiratory
infections, house dust mites, animal dander, mold, pollen, exercise,
tobacco smoke, and indoor and outdoor air pollutants. Go figure.
It seems that some Tea-Party libertarians are only libertarians when
the situation is beneficial to their interests and they want the power.
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