A cursory
glance at the news seems to indicate that support for traditional liberal
rights is on the wane. For example, half of our young people support
banning hateful or offensive speech. Yet while support for traditional rights diminishes there
seems to be growing support for emerging rights, like transgender bathroom rights. I want to consider the connection
between traditional liberal rights and newer, emerging rights.
Traditional
liberal rights, or primary rights, are things like the right to speech, private
property, a jury trial, habeas corpus—rights long deemed essential to the
flourishing of individuals in a free society.
In contrast,
emerging rights, or secondary rights, are relatively new. Emerging rights are
broad in their scope and a bit nebulous in their nature, but they include
rights like the right to employment, abortion, health care, and the right to
education.
Whereas
traditional liberal rights tend to be negative in nature—e.g. a person cannot be indefinitely held without
trial, congress shall make no law abridging the freedom of speech—emerging rights tend to be positive in
nature—a right to health care and education imply a right to state-funded
schools and insurance.
It is not my purpose to argue for or against secondary
rights, some may be prudent and some may not, but rather to argue that some
secondary rights are predicated on the continuance of primary rights and that
paradoxically these secondary rights undermine primary rights. This occurs
because every right has a corresponding obligation. When new rights are
“created” the obligations they include often impair primary rights.
Take for example the connection between the right to
private property and the right to employment. The right to private property
secures the fruits of a one’s labor. For example, today in the United States a man
that plants apple trees can reasonably believe that he will be able to harvest
the apples those trees produce without private or government interference. An
owner, knowing that his property is secure, is in turn able to hire workers to
tend his orchard or harvest his apples. Because the owner’s right to his
property is protected he can employ others, which in turn allows his employees
to provide for themselves.
But the right to employment undercuts the right to
property. For example, if you have a right to employment I may be obligated to employ
you or pay punitive taxes so that the government may employ you. As a result my
right to use my property as I see best is hindered.
To give just one more example, consider transgender
bathroom rights. If a transgendered individual has a right to use the bathroom
of zir choice then business owners have an obligation to let zir. An owner may
object and say this violates his conscience and the government should not
compel him to do something he thinks is immoral. A transgender individual on
the other hand could argue that ze has a right to choose zir identity and
express it as ze sees fit.
The hypothetical property owner and transgender
individual each claim a right and the rights they claim are in conflict. Which
right should prevail? The right that is primary and fundamental to the
existence of the other ought to prevail. The right of conscience is primary and
the right of expression naturally follows from it—to wit, if I cannot be
compelled to do or say something I think is wrong it seems to follow that I
should be at liberty to say and do something I think is right. In this case the
right of conscience should prevail because without it the right to
self-expression that transgender individuals value will likewise cease to
exist.
If we want our fundamental rights to continue we have
to demonstrate how some emerging rights undermine those rights. The right, if I
may put it crudely, to be free from offensive speech sounds good until it is
demonstrated that this will limit the ideas we can express and hear, which will
in turn limit the thoughts we are able to think. We can’t have everything on
our terms. If primary rights are to continue we will have to reject some
secondary rights.