The US government makes 350 pages of new laws each day, including directives of policy that limit what an individual may do at home alone or with consenting adults. Such laws are intended to make people safer, healthier, or more productive, but they often violate the Five Rights because they sacrifice personal choices to some presumed greater good. Directives of policy may include laws that violate the rights to privacy or free speech; laws restricting abortion or physician-assisted suicide; prohibitions on unhealthy foods, cigarettes, alcohol, or drugs; laws that discriminate against gays; and laws that violate property rights.
Drug prohibition laws have been the most damaging. Over the past 40 years, the US population grew 50 percent while its prison population grew 1,000 percent, due mostly to antidrug laws. There are now two million Americans in jail, half of whom didn't harm, coerce, or defraud anyone. The land of the free has one twentieth of the world's population and one fifth of its prison population. Our incarceration rate is seven times that of European countries. No democracy has ever had such a large percentage of its people behind bars.
Legalization of marijuana and decriminalization of other drugs would free hundreds of thousands of individuals, end prison overcrowding, and save billions of dollars now spent trying to enforce unenforceable laws. There would be less need for spying, wiretapping, and breaking down doors. Americans could stop thinking of the police as the enemy and vice-versa, permitting a renewal of respect for the Five Rights.
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THE FIVE RIGHTS OF THE INDIVIDUAL
By PHILIP SCHUYLER
iUniverse, Inc.Copyright © 2012 Philip Schuyler
All right reserved.
Chapter OneThe Source of Rights
Nature gave us life and, through our ability to choose and act, liberty, but nature cannot give a right to life or liberty because a right requires the compliance of others. It has meaning only if people are obliged to honor it. If there is to be a right to life, then each person must be obliged not to kill. If there is to be a right to liberty, then no one can enslave or command anyone else. Nature cannot imbue us with self-interest and guarantee that each of us will honor others' rights. It determines how things are, not how they ought to be. What is natural is not necessarily moral. Male aggression, for example, is natural, but that doesn't mean it's morally right.
The supreme law of morality is that all of our actions must be derived from universal principles. In other words, how would it be if everyone did it? Would it square with all others' rights and be workable within the order? What if someone did it to you? If an action cannot be supported by a universal principle, it's not proper conduct. Kant's categorical imperative is, act only according to a maxim that you would like to see made into a general law. If you cannot reasonably will this, you must refrain, because the action violates objective morality. When enraged, you might be tempted to burn someone's house down, but that couldn't be willed as a generally accepted practice. Throwing garbage out of your car window does not directly violate anyone's rights, but what if everyone did it? Since that's not a viable alternative, it's better if no one does it, including you. This is how morality works: recognizing the need to act in certain manners because acting otherwise is unworkable or undesirable on a large scale. Take the example of charity. Say you choose not to give at all. A society could exist without any charitable actions, but it would not be possible to wish for it because you or your family could find yourselves in need of aid. Since you can't reasonably will a world in which no one helps anyone else, charity is moral.
It's impossible to will a world of universal license, one in which thievery, assault, and murder are commonplace. It's impossible to will a world in which individuals don't have a just claim to a minimal level of consideration from others. Since this is the definition of a right, it's impossible to will a world in which individuals don't have rights. Thus, rights are moral.
The Five Rights
1. The Right to Life
Life is thrust on us unannounced. By the time we realize we are alive, we are alive. We did not choose it, but life is self-sustaining and self-replicating. If we did not choose to live but are driven to continue living, then we are motivated by circumstances not of our making. Who would choose to trade their energy, sexuality, and teeth for anxiety, pain, and eventual death? Yet this is the choice life is, and something tells us to take the trade. Perhaps life is precious because we are born so late in the day. Goethe was wrong when he said that life is the childhood of our immortality. The opposite is true. Life is the tail end of a very long existence: the last one fifty-millionth of it (the last eighty years of matter that has been replicating for four billion years). When we die, we are not leaving home, but going home, and when we get there, requirements end. Death needs nothing to continue. Life has needs, making things matter. Since things have no meaning on their own, yet they have importance, it must stem from our desire for them. So if anything at all matters, we must matter, since we are the absolute giver of value to other things. If anything is worth protecting, the individual is.
Human beings, realizing this, established a right to life. What is its basis? If a chimpanzee does not have a right to life and a human being does, what gives us one? Does it have to do with the complexity of our brains? Does any organism that can represent its long-term duty to itself and its species and choose it over immediate wants have a right to life? Does knowledge of our mortality make us more worthy of existence than lesser-understanding animals? These claims are insufficient. Nature gave us life and the capacities to sustain it, but nature offers no right to life—any of us can die at any time. The right to life comes from utility. People created a right to life for the same reason they created language: it served their needs. They concluded that a human life, being short and finite, was precious and that for each person to live in peace required a fundamental construct: no one may intentionally harm anyone. The right to life protects each person from bodily injury, restraint, or compulsion; it requires that coercion be banned among individuals and used sparingly by government.
The right to life generates laws against murder, kidnapping, physical attack, harassment, arson, blackmail, libel, nuisance, and racial and sexual discrimination. Because the right to life obliges each person to respect the next as a rational being, honoring his means and ends, it is also irreconcilable with fraud. As Friedrich Hayek observed, when you deceive someone, you do not treat him as a rational being with aims of his own but as a stepping-stone to achieve your aims. The difference between coercion and deception is that the victim is aware of coercion.
The right to life is not a right to any job or standard of living. It guarantees the individual access to the free market; it allows him to compete and to have all of the conveniences of modern life—but not at the expense of anyone else. If a person may not intimidate or deceive others, he can only interact with them by their consent. When anyone can decline any offer, only a reasonable proposal and a sound argument can influence him. Thanks to the right to life, rationality triumphs. Negotiation, compromise, and contracts, rather than threats and weapons, are the usual tools of interaction.
2. The Right to Liberty
The right to life complementarily implies the right to liberty because, when you let people be (honor their right to life), they do as they like (exercise their right to liberty). Liberty is unfettered choice of thought or action. It's the absence of man-made impediments, allowing the individual to pick from a menu untrimmed by authority, permitting him to pursue his aims, making each an end in himself.
The right to liberty encompasses everything that takes place within the skin—all reactions and all thinking—and it permits us to feel as we will. It includes the freedom to have spiritual beliefs or not. It includes freedom of opinion and speech, freedom of association and assembly, and freedom to make contracts with whom one chooses. It includes the freedom to travel, to choose a mate or an occupation (by mutual consent), and to plan and shape one's life according to his priorities. Liberty allows the individual to criticize government, to publish unpopular opinions, or to make films that offend.
Liberty seems a comfortable old friend because it is embedded so deeply in us. No one has to tell us that freedom is right. After Jefferson left Washington, DC, and the trappings of the presidency and retired to Virginia, he wrote, "My health is perfect and my strength considerably reinforced by the activities of the course I pursue. I talk of plows and harrows, of seeding and harvesting with my neighbors, and of politics if they choose, with as little reserve as the rest of my fellow citizens, and feel at length the blessing of being free to say and do as I please without being responsible to any mortal." This is liberty.
Liberty requires mutual forbearance. People must be permitted to respond to their appetites, which can mean having to endure drivel, contradiction, and bad taste. Though the other guy's choices may be foolish and irritating, his right to liberty obliges you and all others to let him act on them. Your freedom is likewise predicated on others' tolerance, on their ability to refrain from making laws. If the right to liberty is not given enough import, it gets pecked to death by regulation because there is always political pressure to act and the advantages of regulating always seem apparent.
A law that violates the right to liberty is usually an attempt to prohibit an act that breaches no one's rights but is widely found intolerable (physician-assisted suicide, for example). Condemnation of an act, though, is no reason to prohibit it. The freedom to do something has nothing to do with the number of people who favor or oppose it. Rather, it's government's job to protect unpopular exercises of liberty. We all have preferences in which we are in the minority. If liberty were subject to a vote, each of these could be banned, but as with all of the Five Rights, the right to liberty supersedes majority rule. If it were any other way, people we never meet would determine what we could and couldn't do, even within our four walls.
Having liberty allows us to incorporate morality into our decisions. Remove free choice, and the consideration of right or wrong drops from the equation. If a man shoves someone who falls into a third person and injures him, the shoved person has committed no wrong—he had no choice in the matter. If one person blackmails another into giving a million dollars to diabetes research, the giver is not acting out of a sense of generosity. Only when a person has the opportunity to choose among unadulterated alternatives can a choice be moral or immoral. If coerced, he is not acting morally but rationally, relative to the circumstances.
Self-improvement too requires liberty. Free action yields firsthand experience and instructive screw-ups. Wrong choices lead to internal governors on actions. The individual learns to voluntarily refrain; he gains a strength born of resisting; he acquires a habit of making right choices, learning and growing. If he is the sum of his conduct, then the fewer opportunities to conduct himself, the less he can become. Recall Plato's warning that it is possible to "have so little justice in one's self that one must get it from others, who thus become masters and judges over one." Liberty, though, forces accountability on the individual. He can't have freedom of choice and the right to sidestep the consequences of bad ones.
For the right to liberty to be meaningful, the individual must have a location to exercise it where he can't be overruled by the State in the name of the general welfare, a free space where he may act as he pleases, provided he does not violate common law. Private property is that place.
3. The Right to Property
Nature made us separate beings, each with our own brain, mouth, and stomach. For this reason, at some point, we must separate the things we need to sustain us. Property marks this separation. A person's property is his and his alone. Ownership includes the right to set boundaries and to exclude others, establishing a protected sphere within which the owner's rights take precedence, where he is theoretically autonomous. It affords privacy and allows the individual to shape his surroundings to himself.
We warm to our belongings. Some things, we feel, are ours. Empathizing, we feel that some things belong to others and that it's right to let each person keep the proceeds of his labor. It is just to give each his due, and private property is the means. The right to property lets the individual earn and spend money, and in allowing him to sustain himself, it transforms liberty from a concept into real options. Liberty permits freedom of choice regarding present action; property permits freedom of choice regarding the fruits of past action—savings. Money is stored-up work. Deserving of the same respect as work, capital to be deployed is productivity-in-waiting. It's a block of freedom of choice. Without the right to allocate his earnings, the individual can be forced to serve interests other than his own. If his earnings can be taken and used for things he doesn't support, he's not an end in himself. If his house or bank accounts can be confiscated, he can be reduced to dependence at any time.
By letting an individual store his labor as an asset, property rights create an incentive to produce a surplus. There is a story about a man from the Dutch East India Company suggesting to the sultan of Java that he encourage his people to work harder, produce surpluses, trade, live better, and create tax revenue. The sultan replied that his people had no reason to do those things because they owned nothing. Everything in their lives belonged to the sultan. Property rights encourage initiative, promoting people to use their abilities to their fullest, thereby maximizing a nation's productivity.
4. The Right to Pursue Happiness
The right to pursue happiness permits us to define it as we like at any given moment. We do not have to stick to our ideals on every occasion or explain our actions. It includes the right to do "wrong" things—to dress wrong, to eat the wrong foods, drink alcohol, smoke, take drugs, have the wrong interests or relationships, espouse the wrong political views, believe in the wrong religion, harm one's self, or commit suicide. It can mean seeking sanctuary from boredom, pain, anxiety, or depression. We try to escape the awful feelings of heartache, homesickness, loneliness, or grief, and as new concerns replace old ones, we do.
The right to pursue happiness is personal. One person's passion is another's tedium. One prefers tales, another reality. One person cannot see a proposal without its drawbacks and will always be skeptical. Another embraces ideas wholly. Some pursue happiness through the intentional dimming of consciousness. We seek happiness, but we don't get to pick what constitutes it. And if we can't choose what makes us happy, we certainly can't do it for others. Happiness only has meaning in the context of each person's definition.
A government that can use its lawmaking power to prohibit unhealthy personal behavior can ban any action for the ostensible good of the individual. A personal choice may be unwise, but to force individuals to act "rightly" is a greater evil than allowing them to act self-destructively, because it violates their right to pursue happiness, however damaging the pursuit might be for some.
5. The Right to Equality before the Law
Serving one's self is a rightful end, but since everyone else may do the same, one person's rights must stop where another's begin. Without recognition of the other guy's equal rights, any action can be ascribed to the actor's pursuit of happiness and defended as his right.
Equality requires that all individuals be subject to the same laws. Laws must be clear with predictable consequences when broken. Laws must be general and abstract, referring to unknown future cases involving unknown parties. Each dispute must be decided according to its merits impartially, and being equal before the law, individuals found guilty of the same crime should receive the same punishment. (Since each person must submit to any rule we collectively impose on anyone, equality preserves freedom by engaging self-interest: the laws we wish to live by limit how much we can restrain others.)
Equality before the law does not omit the possibility of vast differences in status, responsibility, or wealth. It does not exclude the prospect of one person having to take commands from another, assuming he has agreed to, as an employee or a soldier, for example. Equality has nothing to do with trying to make people the same. That requires coercion. Equality refers to the equal protection of the laws, to government not sacrificing one person's rights for another in a misguided attempt to achieve "equality." When government must include every citizen in its plans, regardless of sex, race, religion, age, or income, its preferential motivations are thwarted, reducing its ability to take sides for political gain.
Equality has another, separate meaning that is often overlooked: the people and the government are equal in that each must answer to the other. The people agree to abide by government's laws, provided that the lawmakers abide by the Constitution.
The Five Rights are not separate entities, but five facets of one right: the right to life. That's why most actions can be defended by more than one of the Five Rights. The right to contract, for example, can be seen as a right associated with liberty or with property. The right to choose an occupation can be categorized as a right of liberty or as part of a pursuit of happiness. The right of gays to marry is supported by three of the Five Rights: to liberty, to pursue happiness, and to equality before the law.
Excerpted from THE FIVE RIGHTS OF THE INDIVIDUAL by PHILIP SCHUYLER Copyright © 2012 by Philip Schuyler. Excerpted by permission of iUniverse, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Contents1. The Source of Rights The Five Rights defined; their origin in the human pursuit of happiness....................1
2. Constitutional Guarantees Government's powers, commerce clause, Bill of Rights, Fourteenth Amendment....................16
3. Metamorphosis Great Depression, New Deal....................29
4. Despotic Democracy Majority rule unlimited by constitutional principles....................44
5. Leviathan Boom in legislation during second half of twentieth century....................51
6. The Right to Life Spontaneous order, common law, military draft, misuse of police power....................57
7. The Right to Liberty Rules of organization, privacy, freedom of association, searches, abortion, right to die, right to genetic privacy, CCTV, drug testing, monitoring of employees, flag burning, free speech at work, right to bear arms....................75
8. The Right to Property Origins, takings, forfeitures, commerce in human organs, seat belt laws, importance of property....................130
9. The Right to Pursue Happiness Directives of policy, Prohibition, drug prohibition, effects of drug laws, beneficiaries, how drug laws violate rights, legalization, directives and happiness....................158
10. The Right to Equality before the Law Racial equality, rights of women, gay rights, progressive taxation....................192
11. Liberty's Two Opponents On capitalism, the anticapitalist, the dominator....................206
12. Bogus Rights False rights, brief review of the Five Rights....................227