Sandefur has insisted that "rights are real even when they are not being enforced." He finally makes clear (to me) that his basis for saying that rests on the proposition of self-ownership. That is, if we own ourselves -- and I agree that we do -- then our right to be left alone, as long as we leave others alone, arises from within and is not a grant from anyone else -- not a family, a Pleistocene hunting party, a tribe, or a formally constituted state.
I've been taking all of that for granted. I've expressed the concept of self-ownership -- ineptly, it seems -- in my notion of a primordial yearning for rights among humans. Sandefur asks,"Is their “yearning” based on the fact that, as human beings, there are certain things that may be done and not done to them...?" Yes, of course.
What I've been talking about in my exchange with Sandefur isn't whether rights are real, or whence they flow, but how they are given force. There is a difference between having a right and being able to exercise that right. That's where groups come in, be they families, Pleistocene hunting parties, tribes, or formally constituted states. Even though there are certain things that may not, by right, be done to an individual, the individual may not be able to prevent those things without help from others. And it often takes political bargaining to procure that help. (Politics precedes the state and goes on independently of it, for politics is "the process and method of decision-making for groups of human beings. Although it is generally applied to governments, politics is also observed in all human group interactions....")
In the extreme case, a multitude of individuals will band together to overthrow a government and to form a nation-state for the purpose of preventing the existing government from oppressing the rights of the multitude. That was the rationale for the American Revolution. It was also the ostensible rationale for the Russian Revolution (among many others of its ilk), and look where that led.
So, I don't insist -- and have never insisted -- that the state is the source of rights. All I've been trying to say is that the state may (or may not) enable persons to exercise their rights. In the United States, for example, the central government was formed so that Americans could exercise certain rights, but the same government was an accessory to the practice of slavery, for almost 80 years following the end of the Revolutionary War. Then, with Lincoln's accession to the presidency, the central government not only opposed slavery but fought a war that ended it. The central government also since acted to recognize and enforce rights in other instances (e.g., securing votes for women, securing votes for blacks, and ending the military draft).
Yet that same central government has done much through taxation, legislation, and regulation -- especially in the last 70 years -- to suppress the free exercise of rights. The big question is how to reverse that suppression, as I discuss here. The two most promising ways, in my view, are through the appointment of Supreme Court justices who are federalists (in the contemporary meaning of the word) and the devolution of power to the States. As I said in my previous post,
the power I would devolve wouldn't include the power to roll back those rights now recognized in the Constitution. Rather, I would devolve legislation, regulation, and taxation to the maximum extent consistent with preserving those rights.There's a lot more to be said about federalism and devolution than I have time to say right now. I'll save it -- and many other things -- for the promised post in which I will state systematically what I believe about rights, government, and governance.
In closing, I hope that this post clears up the apparent disagreement between Sandefur and me about the origin of rights and the role of government in securing the free exercise of rights. If it doesn't, so be it. For, this is my last volley in this exchange, and my last substantive post at this blog, but for the one mentioned above, which I'll get to in my own good time. I'm taking a break from blogging and from reading blogs -- probably a long break, perhaps a permanent one.
