Sandefur opens by saying that "[t]here are many reasons to object to [my] view that rights are conferred by 'political institutions'." I have many reasons to object to Sandefur's mischaracterization of my political philosophy throughout his post, not the least of which is the allegation that I deny that the Constitution "is based on pre-political notions, such as equality or consent." To the contrary, as I said in the very post that he attacks,
[h]uman beings -- having a primordial yearning for rights -- form a political institution and adopt a constitution for the purpose of defining and securing those rights, as they define them through bargaining.He has a problem with the final clause of that sentence, which I'll come to. For now, I want to set the record straight about my view of the origin of rights. When I agree with Maxwell Borders (whom I was quoting) where he says that “[r]eal rights are conferred by political institutions," I agree because the operative word is "real" -- as opposed "dreamt of" or "hoped for" or "recognized and enforced by common consent within a band of hunter-gatherers, only to be violated by a rival band of hunter-gatherers." The rights of Americans are not "real" unless they are secured (to the extent practicable) through the police, courts, and armed forces -- and sometimes even by Americans acting in their own defense.
Sandefur might object to the sense in which I am using "real." For, he says that "[r]eality is not 'defined' by some entity standing outside of it and determining its contents; it simply is." Regardless of where rights come from, I don't think they're "real" until they're actually recognized and enforced (realized) -- be that by a band of hunter-gatherers that's able to police itself and repel marauders; be that by the police, courts, and armed forces of the United States of America; or be that by those relatively few Americans who have the wherewithal to defend themselves against direct attacks on their persons and property. If Sandefur means to imply that rights are "real" in a Platonic sense, that is, existing independent of the human mind, then he simply believes in a different kind of god than that of the religionists whose beliefs he rejects. (I apologize if I'm misinterpreting him as badly as he misinterprets me.)
The second point I will address here is Sandefur's suggestion that my view about the role of political institutions in the realization of rights makes me something other than (less than?) a libertarian:
[H]ow is [he] to object when the “political institutions” which create our rights are drawn in such a way as to exclude blacks, or other politically unpopular minorities from the “bargaining” process? [He] has (I hope, unknowingly) adopted the view of Stephen Douglas, which is as far from libertarianism as one can go. True libertarianism reveres the freedom of the individual. [He], however, has adopted a principle that reveres the freedom of states. It is not neo-libertarian; it is paleo-conservative.Here, Sandefur conflates the ideal and the real. Libertarianism is an ideal (perhaps a Platonic ideal in Sandefur's mind). Its tenets can be realized only through political bargaining -- whether that's in a band of hunter-gatherers or in the United States of America -- which sometimes takes the extreme form of warfare. The ideal and the real would be identical only in a world in which almost everyone believed and practiced the tenets of libertarianism. (The holdouts could be bribed or coerced into going along.) There is no such world. To believe otherwise is to believe in a vision of human nature that is belied by history and current events. (Hobbesianism is merely a realistic view of the world.)
None of that means acceptance of the status quo by libertarians. Political bargaining led to the recognition of slavery in the original Constitution and left the question of slavery to the States. But political bargaining -- in the extreme form of warfare -- led to the abolition of slavery. Further political bargaining, led to Brown v. Board of Education, its enforcement, and the Civil Rights Act of 1964, and so on. The end of slavery and the recognition of equal rights for blacks couldn't have been attained without political bargaining.
Do I want to devolve some power to the States and, thereby, to the people? You bet (as I have discussed here and here). But 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. (For more about my view of the respective powers and rights of the central government, the States, and the people, read this, this, and this.)
So, you can call me a classical liberal, a libertarian, a neo-libertarian, or Hobbesian libertarian (and I have called myself each of those things at one time or another, in an effort to label my principles) -- but I don't see how anyone can suggest that I might be a paleo-conservative. That would be as off-target as suggesting that Sandefur is a Christian.
Sandefur may choose to comment on this post; that's his prerogative. But he might want to wait until I've systematically exposed my views about rights, government, and governance in the followup post.