Machan's Musings - American Rights vs European Privileges
by Tibor R. Machan
When Brian Lamb’s 'Booknotes' program on C-Span hosted Professor Cass Sunstein of the University of Chicago School of Law, there was a very interesting discussion about Sunstein’s recent book, 'Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever.' In this work we are basically told that Franklin Delano Roosevelt was correct in expanding the list of rights of the Declaration of Independence to include all the entitlements many Americans now take for granted. Rights to education, health care, social security and minimum wages are by many citizens today—indeed, by nearly all of them—taken to be as unalienable as those to life, liberty and the pursuit of happiness. More broadly understood, these are the specific entitlements that come under the rubric of the alleged basic right to positive liberty.
When most Americans—actually most people anywhere—think of liberty or freedom, they have in mind the sort of freedom one has when one isn’t being ruled or oppressed by others. Slaves lack this freedom, as do people who live under tyrannies or dictatorships. A person who is held hostage or is kidnapped lacks such freedom. And when folks talk about a free society and a free market, it is this kind of freedom they mean—not having others run their lives for them ... being, in short, sovereign citizens.
When Professor Sunstein and many others in the academic world—e.g., such very prominent professors as Ronald Dworkin, Amartya Sen, Martha Nussbaum—speak of the right to liberty or freedom, or just plain liberty and freedom, they have something else in mind. They are using a sense of "freedom" we do employ now and then, but not often in connection with politics. We do often speak of being free to do something when we have the ability to do so. "I am finally free to visit Paris," meaning, "I am able to afford this." They mean being enabled to do various valuable things in our lives. (Some don't even think there are any other kind of rights, only these positive ones, since they hold a right not provided with positive protection is meaningless.
Having this kind of freedom is different from the kind widely associated with America’s political heritage—the unalienable right to liberty Jefferson had in mind. It means, rather, being provided with the resources to live well or at least well enough—getting a decent education, health care, old age insurance or job. It means the legal assurance that others will support us in various important endeavors, in getting what we often need and want very badly.
During his appearance on 'Booknotes' Professor Sunstein mentioned that it was America that had taught many European countries about these so-called basic rights. Indeed, a good number of countries, as well as the United Nations, take these positive rights to be important enough to include them in their constitutions. Sunstein also mentioned that he is a bit ambivalent about this approach because it gives too much power to the judiciary and it would be better to just leave such rights as a matter of public policy established by popular support, democratically.
In the context of European political history the doctrine of positive rights is at least nominally novel. That’s because whatever welfare provisions had been part of that political history had been thought of as privileges bestowed by government, not as rights. There is a difference—privileges are easier to withdraw. Rights tend to be taken as permanent—unalienable.
However, whether we view them as privileges or rights, these entitlements that are supposed to enable people are always the result of massive wealth confiscation and redistribution by governments. As such, they are completely anathema to what is unique about the American understanding of individual rights. FDR departed drastically from Jeffersonian—which is to say Lockean—rights theory. In that perspective people may never be subjected to involuntary servitude, never conscripted to serve others. They may only be urged to do so, even if it is their moral responsibility to give help. Generosity, even charity, is never to be coerced from people—free men and women may not be forced to provide for others, not unless they first made a legal commitment to do so (as they do to their children, for example, or via contract to anyone).
In the context of European political history, of course, treating such entitlements as rights is something of a change, although not a very important one. In much of the world, including Europe, government has been understood as the sovereign power and it had the authority, as well as a kind of paternal responsibility, to take care of the realm (including the region and the people inhabiting it). Instead of seeing this as a privilege now, it is seen more like a right. But the substance of policy is the same—government provides for people and runs things.
The novelty of the American system is that government is no longer sovereign—you and I and the rest of us are. We rule ourselves. And this means none gets to subject us to conscription and wealth redistribution. That, at least, is the logical inference to be drawn from the Jeffersonian/Lockean idea of individual natural (negative) rights.
If we allow academicians like Professor Sunstein to take us back to the age of monarchy, where we were granted rights by government, including rights to the labors and resources of other people, we will have abandoned the American Revolution completely. FDR was, sadly, complicit in this and he has many supporters today in the intellectual community wishing to turn back the clock. One can only hope that they will fail to hoodwink us all into going along with this plan.
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