On Rights- Part One: On the Origin of Rights

There are, perhaps, no more dangerous words in the English language than these:

"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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it."

They are dangerous not in and of themselves--no words are--but for the responses they inspire. At their very best, they inspire us to shatter the shackles of tyranny, to assert our "rights" as autonomous human beings to govern ourselves and live as we choose. At their very worst, and often after throwing off the shackles of tyrants, they inspire us to a different kind of tyranny, that of the atomistic individual, to take our status as autonomous human beings as license for the unrestrained exercise of will. Both the triumph and the tragedy of this stem from the assertion that these rights derive from a Creator or, as Jefferson puts it elsewhere in the Declaration of Independence, "Nature and Nature's God."

The tension is never more evident, the line between triumph and tragedy never more blurred, than in discussions (debates? hissy-fits?) about the meaning of our Constitution and, especially, of the Bill of Rights. Take, for example, the protection of speech. The first Amendment states: "Congress shall make no law...abridging the freedom of speech." Congress, as the legislative power, can be read to stand for the entire government. Government, of course, is "We the People," the repository of sovereignty. If we are to take seriously that freedom of speech, as a right, is an endowment from "Nature and Nature's God," then government cannot restrict any speech.

It is a triumph when the speech government cannot prevent is criticism of itself; it is a tragedy when it cannot prevent speech acts that lead to harm, such as child pornography. So we (most of us) have accepted certain limitations--I may not photograph children for prurient purposes, may not shout "Fire!" in a crowded theater. We accept these restrictions because accepting them is better than the alternative, but it is inescapable that in this acceptance we have begun to alienate our supposedly unalienable rights. Is it possible that these rights are not so self-evident as we have been led to believe?

Addressing this question requires us to step away for a moment from the language in which rights are expressed. If we accept that rights derive from a creator, we arrive at an impasse. Necessity requires us to accept them uncritically and to write off our failure to properly perceive and exercise our rights to the fallibility of human free will. The fact that we cannot be permitted full exercise of our "God-given" right to free speech is because fallen men exercise these rights in ways that are unconscionably harmful.

The truth is that we seldom think of the exceptions because most of us will never run up against the limitations they impose. We are then able to blithely ignore the contradiction inherent in the voluntary alienation of rights that, by the accepted definition, can not only not be taken away by government, but can also not be given away by us. This is a clumsy way of putting it, but a necessary one, since the expression of rights is largely a negative one. When we do think of the exceptions, and become alarmed, it is generally because someone in power is trying to force us to do something we don't want to do--this ability is, of course, the very definition of power. For speech restrictions, it could be attempts to place legal penalty on certain speech acts. However, we may also become alarmed at any legislation that is viewed as an infringement on the rights of an autonomous individual.

Yet, and this is where we must step back, taking the language of the Constitution seriously, "We the People" are sovereign; "We the People" are the government. We are also the guarantors of our rights and, we might argue, "We the People" are the source of those rights, if not originally, then at least inasmuch as "Nature and Nature's God" are nowhere to be found enforcing them. How else to explain the absence of divinity in the Constitution? How else to explain the evident discomfort of certain of the framers concerning the very inclusion of a Bill of Rights? The tacit admission of their inclusion is that the "God-given" rights might be infringed is an open admission that they can be infringed and that they are somewhat less than divine.

Does such an admission diminish the importance of these rights? No. It increases their importance. For if we are to accept that these rights do not derive from a creator, then we must accept responsibility for the exercise and, yes, limitation of these rights when appropriate. Limitations not only for others, whose exercise of rights we might disagree with, but for ourselves. And we must do this based on justice and with an eye toward the greater good. Which is more important, personal liberty or the greater good? I don't know. Embracing personal liberty at the expense of the greater good is either a praiseworthy embrace of principle or a shameful embrace of selfishness depending on circumstances. Embracing the greater good exposes us to danger of the elevation of society over the individual, and we know what tragedies can obtain from that. Is it not equally tragic to condemn society to the tyranny of the individual?