The Childlike Progressive View Of "Rights"

As I said on Twitter, this Salon piece is predictably awful.

President Obama’s insistence that Americans have a right to healthcare has drawn predictable criticism from American conservatives, who insist that good health should be a private luxury reserved for those who can pay, or perhaps something provided by charity, rather than an entitlement to a public utility service that should be provided to all citizens of a modern society. Indeed, one of the major indictments in the conservative case against modern American progressive-liberalism is the charge that center-left Americans believe that new natural rights can be discovered or that new positive rights should be created by legislation.

But the conservative theory of rights does not do justice to the pragmatism and flexibility of the Lockean natural rights theory held by America’s Founders. According to that theory, natural rights are either inalienable, such as the rights to life and liberty (you cannot legitimately sell yourself into slavery), or alienable (individuals may alienate part or all of their natural right to self-defense, by forming a community and pooling the coercive power to enforce laws). In addition to these few, broad natural rights, there are potentially an infinite number of subsidiary rights that can be created by laws or constitutions. While natural rights are universal, the subsidiary or instrumental rights needed to promote them necessarily vary, in different times and places. For example, the right to life is universal, but the right to a free press is a subsidiary right that would be pointless in a preliterate tribal society.


Like almost every other Salon post, it begins with a false statement. There’s so much wrong with the notion that opposing an extraordinarily flawed and inefficient taxpayer funded health insurance system equates to feeling “good health should be a private luxury” that I almost want pity this poor slob for being so stupid. Almost. This topic of health care as a right comes up a lot these days, however, so mock I must.

Here’s the overview: in a discussion of positive (the “right to”, generally subsidized by taxpayers) versus negative (“freedom from”, which conservatives like) rights, it’s game on for the positive rights crowd solely because the Bill of Rights provides for a taxpayer funded court system.

Also plus FDR.

The negative/positive rights debate is brilliantly explored by Richard A. Epstein in his book Mortal Peril. He begins with a general discussion but his focus is on American health care. He points out that the positive rights frenzy contains “certain remnants of a discredited socialism” and that “…the protection of these newly minted positive rights invests government at all levels with vast powers to tax, to regulate, and to hire and fire the very individuals whose rights it is duty-bound to protect.”


The story, of course, is one we’ve seen over and over. The government continues to bloat itself as the social welfare state grows and in the process more rights are trampled upon than created.

The list of subsidiary rights quoted from an FDR speech in this post reads like a sad grown-up’s letter to Santa Claus.

These subsidiary rights are all justified under the “pursuit of happiness” umbrella. So we’re back to the old hippie, “If it feels good, do it” mantra and they want us stuck with the bill for the bongs and the penicillin shots.

As Epstein notes, the naive notion that we have a right to “all the good things in the world” only leads to programs that “…expand with time beyond our worst fears until they devour resources that by any sane reckoning are better spent on other human needs.”

But, hey, free stuff!


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