Rights, Penumbras, and Emanations

Let’s talk about the difference between rights and priviliges.

I happen to be of the opinion that this distinction is quite simple: A privilege is something which is granted, a right is something that is inherent to a man by virtue of his existence.

The problem is, lots of people don’t understand what a right is. Their heads are filled with, in the grossly paraphrased words of various constitutional scholars; “the vague penumbras and emanations of the government and the judiciary”.

Rights are not granted by the government, or constitution, they are inherent to man (without regard to religion for those of you who think the inherent rights argument is based in a belief in God)

Fundamentally, there are two types of what people call rights: Inherent rights, and constructed rights.

Inherent rights are those rights we posess by virtue of being sentient beings; constructed rights, are all other things, taken as rights, which are not inherent rights. They are rights by law, but not by nature

For example, inherent rights would include, among others:

  • The right to not be attacked or killed out of hand by your fellow man
  • The right to own and hold property
  • The right to defend ones life and ones property against others
  • The right to determine the course of ones life through free choice
  • The right to be judged fairly by ones actions(that ones a bit fuzzy)
  • The right to think those thoughts that you wish to think
  • The right to speak those words that you wish to speak; presuming they are not, in effect, actions infringing the rights of others

Inherent rights cannot be taken, or limited; but by force, or willing consent.

Constructed rights would include the right to privacy, the right to vote, the right to marry (civily), and others.

While the articles of the U.S. constitution define the form, and structure of our government; the first ten amendments (and most of the rest of them) are primarily concerned with the strict limitation of how government may limit, administer, or restrict inherent rights.

When it comes to the constitution, I am pretty much a strict constructionist; a group of people who for the most part do not believe in constructed rights (yes I know that sounds wrong, but trust me, its correct).

A constructed right is a right by consent or by consensus, not by inherence, and therefore is not truly a right, but a construct of the society in which one lives. It may be limited or removed by legislative action, or the will of that society at any time. That’s not a right, it’s a privilege.

Most of the time we recognize this principle directly in law e.g. It is always lawful for someone to defend themselves against attack. It is not lawful in most states for felons to vote. This is because voting is a constructed right that can be limited or removed without force or consent, but self defense is inherent, and cannot be limited.

Lets muddy the waters even further…

There is a compelling constructionist argument that voting IS an inherent right, because in a society such as ours, voting is an inseperable component of the right of self determination.

There are also compelling arguments that privacy rights are in fact inherent rights; as an extension of property, and self determination rights.

Rough ones those.

I contend that the rise of the valuation of constructed rights, is essential to the core value of collectivism, and the single greatest cause for the decline in personal and moral responsibility that has occurred in our society since the mid 1960’s.

Constructed rights like voting, fair housing, health care (lord knows why people think thats a right) etc.., have become the “rights” that many people value, while they no longer believe in their basic property rights, or the rights to defend themselves

In allowing, and in fact encouraging people to escheat responsiblity for their own inherent rights to the sate through the practice of social welfare, the value of those rights is nullified. In fact, as long as one accepts state control over ones means of existence,and ones protection, one has no inherent rights, because one has willfully consented to their removal.

The fundamental principle of political collectivism is that the rights of the individual are subsidiary to the rights of the collective, as administered by the state. In order for this ideology of the supremacy of the state to succeed, the percieved value of inherent rights must be destroyed, to be replaced by those rights granted by fiat of the state.

Once the populace is conditioned to accept this as the natural order of things (as they have been in Europe for generations) the eventual descent into collectivism, and from there to totalitarianism seems, to me, to be inevitable.

This is not to say that constructed rights are invalid, simply that they are not truly rights; They are rights by fiat. Clearly rights by fiat cannot be granted the same status as true rights, in that by accepting that any core value of liberty can be created by fiat, one must also accept that it can be destroyed by it. If one accepts that, one is simply saying that rights are not; they are privileges.

Ok, so this is a hell of a lot of fancy language, on a subject that I stated above, was quite simple – and this essay is actually about half the length I originally wrote; I just cut everything extra out.

So here it is, the simple facts:

Rights cannot be taken away. No law, no regulation, no government, can take away my rights, or yours. Not only that, but no-one can limit my rights, except to prevent me from limiting others right unjustly (see my post “The Politics of liberty”).

No government gave me my rights, and no government can take them away. No man gave me my rights, and no man can take them away. They are mine, and I will excercise them, and I will defend them.

The only way I will ever have my rights violated is looking down a muzzle, and let me tell anyone who would try: I’m a better shot than you, I fight dirty, and I’d rather die on my feet than live on my knees.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

  • http://libertycorner.blogspot.com Tom Anger

    You say: “Inherent rights cannot be taken, or limited; but by force, or willing consent.” That’s contradictory. If rights are inherent, they cannot be taken, period. But rights are not inherent; they are agreed amongst people. That is why, in the real world, Americans have more rights than, say, Canadians or Brits but fewer rights than we libertarians would like Americans (and Canadians, Brits, etc.) to have.

  • http://thelibertypapers.org/2005/11/21/who-is-eric/ Eric

    Tom, I don’t agree. I have the right to life, and I refuse to let you, or anyone else, have any say so in the matter. The only way you can take, or limit, that right now is by force. Inherent rights, which are the only actual rights, are ones that exist regardless of the existence, or lack thereof, of society, government, etc. Inherent rights are something you would have no matter what, even if you lived somewhere where there were no other humans; the proverbial deserted island. You would still have a right to property, to life, to liberty, to the pursuit of happiness.

  • http://www.quincysblog.com/ Quincy

    Tom, perhaps a little clarification is in order. I have the rights to life, liberty, and property, simply because I am a human being. No one granted them to me. (This is an important point to make, since anything that can be granted by a person or group can also be taken away by said person or group.)

    Can a state or society refuse to acknowledge these rights? Absolutely, but the rights still exist.

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