George Will Is Thinking in the Right Direction about Rights

As George Will writes in a recent op-ed, the Founders’ purpose in drafting the Constitution was not to establish unlimited democracy; rather, it was largely to restrain democracy in order to preserve individual liberty. He writes:

The [basic] argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when “instituted” to “secure” natural rights.

Although we can quibble with Will’s use of the term “conservative” in this context (conservatism actually means loyalty to tradition), Will puts his finger on a crucial and fundamental debate in American politics.

To show that the Constitution is fundamentally about preserving liberty, Will relies heavily on the new book by attorney Timothy Sandefur, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty (reviewed here). TOS will feature an in-depth interview with Sandefur in the Summer issue of our quarterly journal, due out next month (subscribe here).

Especially encouraging is that Will attempts to come to grips with the question of why individuals have rights, a question that conservatives typically brush off, saying rights are “God-given” or “self-evident” or the like. Will writes:

With the Declaration, Americans ceased claiming the rights of aggrieved Englishmen and began asserting rights that are universal because they are natural, meaning necessary for the flourishing of human nature.

Will’s remarks here are strikingly close to the Objectivist position on rights. As Craig Biddle and Stephen Bourque write in response to an earlier article by Will in which he wrestles with the issue of rights, “rights are recognitions of certain factual requirements of human life and prosperity on earth.” (For a fleshed-out presentation of the Objectivist position, see Biddle’s article “Ayn Rand’s Theory of Rights.”) Although Will has not to my knowledge dug deeply into the objective foundations of individual rights, it is encouraging to see a conservative of his renown thinking in this direction.


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One Response to George Will Is Thinking in the Right Direction about Rights

    John Shepard April 14, 2016 at 8:38 am #

    ‘So why can’t the intrinsic and the subjective school accept the idea of rights? Well, the intrinsic theory holds that rights, if they exist, are an intrinsic feature or possession of man. But you can’t perceive them. Where is his rights? I can see his hair. I see his eyeglasses. I see his arms. I don’t see his rights. Well, can I bring in some scientific equipment, a fluoroscope or something, and find his rights? No. So they’re mystical, and indeed the intrinsic theory typically takes rights to be bestowed by God.

    ‘The enlightenment view called them “natural rights.” Natural rights. But the term “natural” is a package deal here. It’s a package of factual description of actual attributes, like he’s six feet one and has dark hair, with moral judgments, about what ought to be and ought not to be. So you can’t get around it by saying, “Well, rights aren’t attributes, but they’re natural.” That’s incoherent. And as a result, natural rights, actual rights, became dismissed by the intellectual world shortly after they had been launched by John Locke. Only a century later, Jeremy Bentham described rights as “nonsense upon stilts.” You know, worse than regular nonsense; it’s nonsense raised up on stilts, nonsense upon nonsense. And he got no opposition to that view; that was the mainstream view.

    ‘And of course the subjectivists convert rights into permissions granted by society. And we all know that view. That doesn’t need elaboration. . . .

    ‘The objective theory of rights hold that rights are neither intrinsic attributes nor social conventions but facts in relation to a standard of value. Rights are moral principles. Moral principles. That genus of Ayn Rand’s definition is as much a revolution in her theory of rights as any other aspect of it. Rights are moral principles. They are not something you have. Nor are they something granted to you. They are moral principles about how men should interact, based on their attributes, but also relating it to their survival. The facts alone without a standard of value don’t tell us how men should treat each other or how society should be organized. To settle those issues, you need a standard of morality applied to the facts. So, as moral principles, rights have the same metaphysical status as the good, i.e., objective, not intrinsic or subjective. Rights are simply the extension of individual morality to social existence. They demarcate the individual’s rightful sphere of independent action.’

    — Harry Binswanger, “The Objective vs the Intrinsic and the Subjective”

    An excellent lecture!

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