Words to Rule By - Liberty Edition

I found this little gem in the comments section in one of DeLong's posts...

From Yglesias' column:

"Last week, Rand Paul explained that saying people have a right to health care is a form of slavery."

According to the Declaration of Independence, the right to life is an inalianable right. Without adequate health care people die needlessly from curable diseases. Therefore an inalianble right to life implies an inalianable right to health care.

Why does Rand Paul hate the Declaration of Independence?

Alright, boys and girls - let's put on our thinking caps for a mere moment and pretend that the gelatin-like substance between our ears hasn't been beaten into a functionless beef-slab by years of forced education and poor reading skills. Let's peel this rancid onion back a little bit:

The Declaration of Independence is not a Constitutive Document of Positive Law

The purpose of the Declaration of Independence was not to outline the contours of our rights (either of the negative or positive variety). In actuality it was a formal declaration of secession (gasp!) from British rule on behalf of the (united) colonies. Admittedly, the commenter isn't explicitly appealing to the Declaration as a matter of positive law, but all too often the "life, liberty, and the pursuit of happiness" clause is implicitly, if not rhetorically, referred to in such a matter as a measuring stick for the legitimacy of a claim regarding legal rights. It's a point worth making clear.

The Declaration of Independence is not a Constitutive Document of Natural Law

Even if the Declaration was, formally or not, some document of positive law, it still would not necessarily follow that it would be in line with with an apriori account of natural rights. Jefferson could have just as well enshrined slavery as a right in such a document. It would have caused some subsequent arguing, no doubt. But we understand that formally enshrining or advocating a right would not make any such act an actual right on that basis alone. That would rely on prior reasoning and abstractions.

But, more importantly...

Jefferson Didn't Mean What You Apparently Thought He Did

There are plenty of things the founders disagreed on. And there are plenty of things they were certainly just wrong on. But, generally speaking, the founders were drawing on a socio-political framework put forth by Locke; a framework of individual liberty denoted and defined by a system of property rights. And although the common conception (or misconception) of liberty today is that of it being individualistic or selfish, the actual philosophical/ethical conception is a negatively defined one. That is to say that our individual rights are not so much defined as some atomistic property of the individual, but rather a set of (negative) social obligations people have to any given individual. So when we say that X has "a right to speak", what we really mean is that all other rational agents have an obligation to not stop X from speaking.

Where the water begins to get a little muddy is when we introduce positive rights to such a framework. Positive rights indicate positive obligations we would have to people. So, if someone says that they have a right to a house, they mean that people are positively obligated to provide them with a house. And I believe it's in misconstruing these two different uses of the same word ("right") that our commenter goes wayward here.

So let's take a look at the "right" in question that is being referred to; the "right" to life (although the original is "preservation of life", interestingly). In the Lockean sense, a right to life would imply that people have an obligation to not take your life. In terms of positive rights, it would seem that people would have an obligation to sustain your life. Which version do you imagine this country's founders to have meant?

Well, let's jump to the actual constitutive document of positive law, The Constitution, and examine the (at the time controversial) Bill of Rights. Now, let's take a look at some of the rights outlined here. What do you think is meant by "right of the people to peaceably assemble" or "right of the people to keep and bear arms"? Do we have a positive obligation to lend out our homes for people to assemble in? Do we, perhaps, have a positive obligation to arm unarmed citizens? Or, in fact, are the rights and freedoms spoken of here a reflection of our obligation to not interfere with such actions taken by others?

So, it's quite easy to see that the efficacy of Paul's statement depends largely on what we mean by a "right to health care". If we meant it in the traditional, negative sense there wouldn't be much controversy here. Of course we have an obligation to not stop people from obtaining health care. Unless people are hanging out in front of hospitals with guns, I don't think this is the issue. On the other hand, if we're saying that people have a positive obligation to provide health care for others (either directly or indirectly through their labor) then there is certainly a sense in which the claim is justified.

If, following the flow of abolition in the United States, we allowed wealthy slave-owners to say something like, "Alright, you slaves - I'm letting you free...but if you should do anything else, you have a positive obligation to hand over %30 of what you earn to me" then I think we'd still have a serious ethical dilemma on our hands. I think a lot of people would still consider that slavery of at least some sort. Are we to pretend that we can wash away the ethical issue here by simply having the former slave-owner declare that he's poor and that he has a "right" to housing, food, health care, etc.?

Once you realize the contentious nature of accepting both conceptions of rights, ethical questions like this are bound to rise to the surface. And the imminent disregard of such problems by contrasting their scope will only let you tread argumentative water for so long. Of course this form of slavery (the fractional income variety) isn't as objectionable as that of chattel slavery. But it's still objectionable and for largely the same reasons. Punching someone in the face isn't as objectionable as the Holocaust either - but that doesn't get you to the ethical high ground on punching innocent people. As a matter of scope, the comparison that Paul made may seem like hyperbole, but in principle he can make a very good argument for calling it slavery - and he can do it while being very much in line with the sentiments expressed in the Declaration of Independence.