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November 10, 2004

Ensuring Life, Liberty, and the Pursuit of Happiness

The conversation in the comments section to a post from Monday has become too interesting to leave drifting into the archives. Attempting to dig down to our essential differences of opinion, I asked Jon Rowe:

You say that sodomy laws "simply aren't proper functions of government." I disagree, at least inasmuch as I think it ought to be a state issue. Others will disagree with you more dramatically. Your view is the self-evidently correct one because... ?

He filled in the short-answer blank as follows:

The Declaration of Independence and its theory of natural right refers to certain "ends" of government — all government. The passage that I bolded from Bloom's book...that's it. That's all that is appropriate for government to do: protect men's equal rights to life, liberty, property, and pursuit of happiness, not concerning itself with what consenting adults do within the privacy of their own home.

It is useful that Jon has given us a specific document as a field on which to knock around the abstractions of rights and government. However, in doing so, he has not ceased to skirt the basic question. Let's sketch out our playing field with the relevant passage from the Declaration:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The question remains: what does it mean to ensure a right to life, liberty, and the pursuit of happiness? The Declaration, itself, demurs, stating simply that the people can lay their government's "foundation on such principles" as seem most promising "to them." So, again, who decides what policies are "most likely to effect [citizens'] Safety and Happiness" for the better? Who has the final say? Jon suggests that judges do, but his conclusion presumes that the legislative and executive branches are being objectively negligent.

Perhaps it is from Jon's other source, Allan Bloom, from which he derives an "objective" measure to which judges are qualified to demand deference. From the above-mentioned bolded text:

Government exists to protect the product of men's labor, their property, and therewith life and liberty.

Note that Bloom sublimates life and liberty to another right that isn't even in the Declaration: property. Perhaps we have succeeded in finding an essential difference of belief of the sides in this debate; I'm surely not alone in believing that — far from being subordinate to property — life, liberty, and especially happiness don't ultimately require it.

Such a view is no doubt especially common among those who would be disposed to note a consideration raised by the centrality of the Declaration in Jon's argument: that document actually provides a Reference for defining our natural rights. Interestingly, the courts have proven to be the mechanism of choice for citizens who wish to illegitimate that very Reference.

Jon has responded here. I'm keeping it on my list of things to read and may respond at greater length later, but I want to address this point:

I would caution any conservative against arguing that property is not a vital concern that governments must secure. Indeed, there exists some tension between "equality" on the one hand, and "property" on the other.

I certainly wouldn't argue that property is not a "vital concern," and I had written (but edited out) that Jon put property on the same level as life, liberty, and the pursuit of happiness. Rather, my point is that the Declaration gives no indication that the natural rights of man are limited to whatever three or four the Founders might think to list in that document. Why, for example, could "a moral public square" not be among the unlisted rights?

And beyond the matter of the unnamed rights endowed by our Creator, it remains an open question of what mechanism is best toward maximizing our receipt of those named. (I know there's a famous Founder quote that would fit well here, about democracy's requiring an ethical public, but I can't find it right now.)

Posted by Justin Katz at November 10, 2004 1:09 PM

I blogged a response here.

Posted by: Jon Rowe, Esq. at November 10, 2004 4:48 PM

Andy McCarthy has a relevant piece up on NRO here.

Posted by: Mike S. at November 10, 2004 4:50 PM

Life, liberty and property comes from John Locke's "Two Treatises on Government". The unspoken assumption in "Treatises" is that a common culture exists, within which government arises to protect natural rights. Modern libertarians forget that, absent social norms, legalism must take up the slack in defining what is and what is not acceptable.

Locke could write of limiting government to life, liberty and property because much of the rest of social control over antisocial individuals was handled by a social norm.

Our libertarian friends wish to invoke Locke's minimal government while also insisting that no social norms exist. This would seem to be a very unstable condition which would not last long; either social norms would be reasserted, or a plethora of laws would be enacted.

40 years ago, smoking was mostly regulated by social norms; smokers asked before lighting up, and didn't smoke if someone (especially a woman) objected. Nobody smoked in an elevator. Nobody blew cigar fumes around in a public restaurant.
The "do your own thing" generation ended that, and for a few years in the 1970's and 1980's smokers became more and more obnoxious. Now we have a backlash against them in law, rather than custom.

Question: are we better off with police officers able to issue tickets to smokers, to codes enforcement able to shut down a restaurant, than we were when a smoker was simply expected to show some self control?

Expand this model to any social activity that fits. Then ask how the libertarian legalism will enhance liberty in any way.

Posted by: Nobody at November 10, 2004 5:53 PM

Jon’s post on his own blog points to one of the core disputes in modern constitutional law: He considers “equality” to be one of the “concerns in which governments are instituted among man to secure.” He lists equality alongside life, liberty, the pursuit of happiness, and property.

Note that Jon has to stretch the Declaration a bit to fit equality onto the list. The actual document says that all men are created equal and endowed by their creator with inalienable rights. Government is then created to secure those rights.

I see a big gap between rights and concerns, especially with the understanding that the authors understood “rights” only as what we would call “negative rights,” or rights to be left alone. Modern language has stretched to create positive rights, which are rights to demand that something be given to you.

But I don’t want to get bogged down in the historical argument. I simply don’t accept the insertion of “equality” onto that list. I’m not even quite sure what it’s supposed to mean. Equal treatment before the law? Non-discrimination in employment? Gay marriage? No racial discrimination by government? Equal incomes? Equal income-tax rates?

This question is usually a conversation killer in a mixed group. For those on the left (which may or may not include Jon), the mere word “equality” conjures such powerful positive emotions that any questions about it automatically consign the asker to the lowest level of moral depravity. But to the conservative, the broad undefined use of that word is a handful of sand in the eyes—a placeholder for actual meaning.

So please explain, Jon: What is this equality that you propose as a purpose of government? By itself, the word means nothing to me.

Posted by: Ben Bateman at November 10, 2004 6:32 PM

"The actual document says that all men are created equal and endowed by their creator with inalienable rights."

Yup -- that's the "equality" norm in the Declaration. I don't think it's a stretch, it's right there in the text.

A little passage from Robert Bork is apropos:

"The proposition that all men are created equal said what the colonists already believed, and so, as Gordon Wood put it, equality became 'the single most powerful and radical ideological force in all of American history.'"

Did Robert Bork say that? Yes, and then he followed it up with: "That is true, and though it verges on heresy to say so, it is also profoundly unfortunate." I don't quite agree with Bork's last sentence though.

It's in the first paragraph on Chapter 4 to Slouching Towards Gomorrah.

Equality, at the very least means, "equal opportunity for unequal talents to acquire private property," as Bloom put it. The point I was making was that if we scrap property as an inalienable right, then we very well could end up with things such as a very progressive income tax, and income redistribution, as part of the theory of "equality" that governments must secure. It's only by putting strong property rights together with equality and liberty that we keep our classical understanding of equality of opportunity, not equality of result.

I have no problem with the norm of equality taking us in radically new directions, such as gay marriage. I do however, have a problem when we use equality to trump other equally important concerns such as liberty and property, which is essentially what radical economic egalitarianism does.

Posted by: Jon Rowe, Esq. at November 11, 2004 11:22 AM

Jon, Why do you assume that someone's ideas must come from someone else? First you assumed that I was a secret Catholic, and now you seem to assume that I'll agree with whatever Bork wrote. (I might agree with Bork; I haven't read enough of him to know.) It's an odd assumption about how other people's minds work.

Leaving that aside, we seem to be reading the text of the Declaration very differently. I see “all men are created equal” as referring to the clauses that immediately follow it. We are created equal because our Creator endowed each of us with inalienable rights. That’s the equality: Equality of inalienable rights. It’s really just a statement of the idea of natural rights: By definition, everyone has them. In that way, we’re all equal. Obviously, in other ways we are unequal. It seems pretty simple to me.

Let's consider your definition of this fundamental equality right: "equal opportunity for unequal talents to acquire private property." It sounds nice, but what does it mean?

The “for unequal talents” phrase is especially confusing. Does this right not apply to people of equal talents? Is it meant to clarify that the untalented have the same legal rights to acquire property as the talented? Why would that be a question in the first place? Historically, the obstacles to property acquisition (aside from wealth or credit) have been based on sex or race. Isn’t that what you’re really talking about?

My best guess about what you mean by “equality” is that government generally may not discriminate among citizens on the basis of certain involuntary criteria such as sex and race. I see the real debate in two areas:

First, to what extent does that nondiscrimination ban hold for a given criterion? For example, it’s fine to ban sex or race discrimination in economic matters. But it’s obviously impossible in medicine, for example. Sex and race are vital to diagnosis and treatment of many conditions.

Second, what other criteria should go on that list? A major impetus behind SSM is that sexual preference should be treated just like race. Leaving aside the substance of that question, who should decide it? Treating “equality” as an amorphous constitutional principle hands that power to the judiciary, where it does not belong.

If the people of this country feel that their government should not discriminate according to some particular criterion in some particular sphere, then they have representatives who can express that feeling through legislation. But they never assented to a general presumption of nondiscrimination on every criterion in every sphere until the government proves a desperate need to distinguish among its citizens.

Posted by: Ben Bateman at November 11, 2004 2:11 PM

Ben wrote,

If the people of this country feel that their government should not discriminate according to some particular criterion in some particular sphere, then they have representatives who can express that feeling through legislation. But they never assented to a general presumption of nondiscrimination on every criterion in every sphere until the government proves a desperate need to distinguish among its citizens.

That's as clear a statement of the main objection to SSM as I've seen. We should make it our motto!

Posted by: Mike S. at November 11, 2004 9:59 PM


Check this out. More on natural rights & property with quotations from founding era documents.

Posted by: Jon Rowe at November 12, 2004 10:24 AM

[quote]Why, for example, could "a moral public square" not be among the unlisted rights?[/quote]

Because you'd find that while it's easy to claim your ideas regarding morality define it, proving it is another matter altogether...

Posted by: Samael at November 16, 2004 7:15 AM