Where do human rights come from?

img_1088
Phoenix, Arizona

Are human rights government creations? Or do human rights pre-exist government – being derived from nature – with government tasked with protecting those rights?

These are important questions because the answers weigh heavily on what rights we have and whether they can legitimately be taken away.

If we have free speech only because the government says we do then we don’t really have the right to free speech because the government can just as easily take this right away.

On the other hand, if human rights are natural rights then the government cannot legitimately deprive us of these rights. But what’s the basis for saying human rights arise from nature?

The Good

These questions have come to the forefront because the perspective of Supreme Court nominee Neil Gorsuch gives us clues about how he might rule on various issues.

Reason.com says the debate centers on the question, “What is the good?” One position is that life is inherently good. Another is that human flourishing is the primary good, and human rights are necessary for this flourishing – what Thomas Jefferson called the “pursuit of happiness,” or what the ancient Greeks called eudaimonia (which is often translated as happiness even though that doesn’t fully capture it).

This matters, Reason goes on to say, because if life is inherently good with no further explanation needed then abortion and assisted suicide are not rights. But if human flourishing is the good, and life is in service to this flourishing, then a woman’s flourishing gives her the right to choose.

Stoicism and human rights

What would ancient Stoic philosophers think of this debate? That’s hard to say. Eudaimonia is important in Stoicism. But eudaimonia cannot be achieved unless we live virtuous lives. So for Stoics, virtue is more important than happiness.

Natural rights wasn’t a concept in the ancient world, however. Had it been, ancient Stoics might have connected natural rights to justice, which they saw as part of Nature. Perhaps they even would have claimed Logos as the source – the providential universal reason that orders all things.

I wrote earlier that this idea of Logos isn’t as popular with Stoics today because modern science makes it hard to justify. Instead, I suggested that the elusive “theory of everything” – the underlying principle of the universe from which every other scientific principle follows – might be the closest we can come to Logos. But this is not a conscious or providential force – it’s an impersonal force of nature.

So a modern Stoic who rejects the ancient view of Logos can’t argue that natural rights exist as an objective scientific principle.

What I’m left with is my opinion that human rights pre-exist government because every person must have rights in order for human flourishing to be possible. While my position lacks an objective, scientifically provable standard, I argue that the same is true for those who disagree with me.

The most important question for Neil Gorsuch

img_1052
Phoenix, Arizona

Resisting President Trump’s Supreme Court nominee is bound to be a losing game. The seat will be filled at some point, and Trump is not going to appoint a liberal justice.

But there are different strands of conservatism. George Will brings up an interesting question that should be asked of Supreme Court nominee Neil Gorsuch.

Quoting Lincoln, Will describes the Constitution as a frame of silver for a golden apple, which is the Declaration of Independence. That is, the Constitution details how we protect the Declaration’s ideal that everyone has equal natural rights.

Will criticizes President Reagan’s failed Supreme Court nominee Robert Bork. Bork disparaged the ninth amendment, which says that there may be more rights than are explicitly stated in the Constitution.

Will also criticizes late Supreme Court Justice Antonin Scalia‘s claim that democracy means majority rule with protection for “minorities only because the majority determines that there are certain minority positions that deserve protection.”

Scalia’s ideology seems to disparage natural rights. And certainly it ignores James Madison‘s statement that one purpose of the Constitution is that “the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

Scalia’s disregard for individual rights when the majority see fit not to grant these rights represents a powerful strand of conservatism – particularly social conservatism. And President Trump appears to be in this camp.

But other conservatives emphasize the word “unalienable” in the Declaration’s statement that everyone is “endowed by their Creator with certain unalienable Rights.” And considering Madison’s remarks in Federalist #51, the only way that Scalia-style conservatives can truly claim to be originalists is by denying that the Declaration of Independence is all that important to the Constitution which followed.

Will hopes that Gorsuch’s originalism will differ from Bork and Scalia’s by recognizing that natural rights are unalienable, meaning the majority can’t take them away. But note that is is about protecting natural rights, not the judiciary usurping Congress. This is Will’s conservatism.
We don’t yet know what kind of conservative Gorsuch is. I hope Congress asks him.