What Should Be Our Baseline Rights?


Reaction to the ideas in my earlier post (before and after I wrote it) put me in mind of a bit of Friday afternoon philosophy.  It seems to me that folks on the right are, if not as prone, at least somewhat prone to a tendency of those on the Left: namely, to feel that policies I like should err in the direction of universality.  If I think a baker ought to bake a cake for a gay wedding, then that ought to be the national law.  If I think a public school should have no right to demand students’ social media information, then no public school in the state or country should be permitted to do so.

As best as I can tell, this philosophical error became a problem for the United States when, in the muddle of attempting to undo a legacy of racist slavery, the courts expanded the definition of “Congress” in the Bill of Rights to include every government official at any level anywhere in the country.  (I won’t pursue this tangent, but I’d argue that this redefinition should be a candidate for the single-most detrimental policy to come about in postbellum America.)

This isn’t to say that I don’t think the United States should guarantee its citizens a certain level of liberty from any domestic government.  It’s to say that the Constitution, Bill of Rights, and further Amendments, as a set of specific policies, were drawn up for the nation as a whole, and those specific policies should have more flexibility at lower and lower levels of government in order to preserve the most central civic right, which is the right to live under a government in accord with one’s beliefs.

The question then becomes: What rights must be absolutely fundamental and guaranteed against any government infringement whatsoever?  This should be the subject of extended debate, in the specific, but as I’ve written in the past, in general, the United States should offer all citizens three basic rights:

  • The right to work to change the government under which one lives. This would cover the right to vote, obviously, but also the right to speech and, I’d argue, the right to bear arms and other rights that are directly fundamental to shaping one’s society.
  • The right to leave.  While this couldn’t become a loophole preventing justifiable incarceration or the enforcement of other laws, all Americans must have the right to leave a municipality or state that they find they cannot change to suit their beliefs about government.  It should also protect people who are simply passing through a state from being detained for lacking awareness about something that’s different in their state or municipality.  And obviously, being able to leave includes the ability to leave alive.
  • The right to property.  The idea of this right, as distinct from the first two, is that state and local governments wouldn’t be able to confiscate property in such a way as to effectively deprive people of the ability to convey their speech or to escape.

If I had my druthers, we’d have a new, twenty-eighth amendment to the Constitution that limited the government restrictions of the prior amendments to the actions of the federal government and applied the three that I’ve described globally in the same way that all of them are right now.  I have no expectation that my proposal will gain much support whatsoever because, as stated above, too many people on the Left and the Right ultimately like the idea of being able to impose some less-fundamental rules on the entire country.

That would be a good note on which to end, but I think it worthwhile to add a consequence of this sort of thinking.  If our goal is to describe three fundamental rights on which we cannot stand to let even the most local form of government infringe, it obviously raises questions about foreign policy.

One peculiarity of the libertarian views of, for example, the Senatorial Paul family is that they insist on restricting others’ ability to move the line of liberty within the United States but arbitrarily draw a boundary for our duty to enforce those rights at our national boundaries.  A natural consequence of my view of rights is that we do have an obligation to ensure them for every human being on the planet.

Ultimately, that’s an injunction against being too ambitious in the rights that we universally guarantee within our borders.  I see no argument for using the federal government to enforce some person’s view of rights on every hamlet within the national borders that isn’t also an argument for using whatever power is available to bring those rights to others as human rights.

Of course, we should be circumspect about “whatever power is available” and realize that we can’t dedicate all of our resources to this expansion of rights.  This acknowledgment should lead us to take a long, careful, incremental, often cultural-only view of a global expansion of rights.

  • devilsadvocateri

    My instinct is that this cannot be right. If borders have any meaning it is precisely the universal reach of law with them. The need for universality of the parochial is of course a contradiction in terms but the universality of individual rights as against the local police power is the crowning achievement of the separation of powers.

    One can believe that the balance around substantive issues is wrong, e.g. the right of privacy as an impediment to local jurisdictions prohibting abortion, or the 2nd amendment preventing local jurisdictions from prohibiting ownership and carry of firearms, without believing that the conception of universal rights within national borders is faulty.

    And as to the sense that if rights are universal within the country there is no logical end to the notion that they must be universal outside the country misconceivers what borders are for. They define the reach of the compact. Yes, belief in certain set of rights affects our international relations (where sometimes we foreswear those beliefs in the pursuit of ‘national interest’ and where at others we subjec the ‘national interest’ to trauma in pursuit of a more universal recognition. But, generally speaking, nations have no right and the most limited power to enforce those regimes outside their borders – whereas the very nature of their existance is the establishment of such regimes within their borders.

    Of truly interesting note are theories like those of Lant Pritchett which also bridge the question of whether non-citizens are to enjoy all the privileges and immunities of citizenship by virtue of presence in the United States, what Pritchett describes as moral perfection as a matter of proximity, e.g. his book Let Their People Come, that argues a welfare state is not incompatible with open borders if one does not view the full panoply of its privileges as extending to those who come from beyond its borders (this is fully consistent with Freidman who said that illegal immigration is better than legal immigration because illegal immigrants are outside the welfare state — he wrongly imagined that such a state of affairs would remain the norm but it was largely so at the time he said it, see, e.g. George Borjas, “We wanted Workers”.

    • Justin Katz

      In your terms, what I’m doing with this post is to attempt to define what should be the universal individual rights recognized at the federal level. The problem right now, as I see it, is that fundamental individual writes have been defined both broadly and specifically that the judgment of people far away in time and geography are replacing our individual right to define or influence the government under which we live with their own preferences.

      In this effort, I’m not saying that the fact of belief in universal rights obligates us to reach beyond our borders. Rather, I’m implying that we should limit guaranteed individual rights at the federal level to those that we believe ought to be universal throughout humanity, which we would be morally obligated to pursue.

      Note and important distinction between my phrasing and yours. I’m not saying our moral obligation creates a legal obligation for our national government to enforce our rights among other peoples. Maybe sometimes it can come to that, but as a general proposition, I’m defining “available power” broadly, to include individual action, economic policy, and so on.