I’ve received a fair amount of email since I penned the previous piece on this subject. Quite a bit of it was incredulous in the extreme, e.g., “How can you say that? Freedom of religion is a right.” Being indisposed to quarrel over premises, especially with persons whose premises I share, I’ve refrained from replying to those persons.
Yet the subject is important – perhaps more important than any other subject in the discourse of Man. The problem of rights is the central conundrum of the centuries. Brilliant men have worried at it from innumerable angles, all seeking to put rights on a pedestal too high to be challenged. Some, such as the Objectivists, have claimed that the rights to life, liberty, and peaceably acquired property can be logically proved.
It’s all froth and gas. There is no way to arrive at any right through a falsifiable process. In short:
Yes, I have an argument for that assertion.
Consider the following quote, which I’ve used several times in discussions of rights:
“Rights are an archist concept. Rights have no meaning except when confronted with superior power. They are what is left to the people after the government has taken all it wants. Your country's Bill of Rights defines your most cherished freedoms how? By limiting the legal power of government to encroach upon them.” [Eric L. Harry, via fictional anarchist theorist Valentin Kartsev in Harry's blockbuster Protect and Defend.]
The concept of rights – specifically, of rights against the State – arose with the emergence of the State. Rights matter solely in a political context: one in which a particular entity is charged with respecting and enforcing rights. Without the State, we would have only individuals, voluntarily assembled groups, and their interactions.
Yet we believe passionately in natural rights and in their supremacy over all other considerations. We want agreement on what rights individuals possess; the lack of such an agreement is at the base of most political discord in America today. We want rights to trump all other considerations. Yet anarcho-capitalist theorist David Friedman has demonstrated the impossibility of making rights so doctrinaire without endangering other things we hold at least as valuable:
A madman is about to open fire on a crowd. If he does so numerous innocent people will die. The only way to prevent him is to shoot him with a rifle that is within reach of several members of the crowd. The rifle is on the private property of its legitimate owner. He is a well known misanthrope who has publicly stated on numerous occasions that he is opposed to letting anyone use his rifle without his permission, even if it would save hundreds of lives. [From The Machinery of Freedom]
That’s a clear case of property rights in action in an undesired fashion: i.e., in a way that would, if honored, cost many lives. Many a dogmatist would argue that the rights to life of the innocents in the crowd are more important than that misanthrope’s property rights – in other words, that even among the natural rights there exists a hierarchy of priorities that requires that we honor some more stringently than others. But things are not quite so simple:
Xanten made an airy gesture. “A. G. Philidor, you over-simplify grievously. Do you consider me obtuse? There are many kinds of history. They interact. You emphasize morality. But the ultimate basis of morality is survival. What promotes survival is good; what induces mortefaction is bad.”
“Well spoken!” declared Philidor. “But let me propound a parable. May a nation of a million beings destroy a creature who otherwise will infect all with a fatal disease? Yes, you will say. Once more: Ten starving beasts hunt you, that they may eat. Will you kill them to save your life? Yes, you will say again, though here you destroy more than you create. Once more: a man inhabits a hut in a lonely valley. A hundred spaceships descend from the sky, and attempt to destroy him. May he destroy those ships in self-defense, even though he is one and they are a hundred thousand? Perhaps you say yes. What, then, if a whole world, a whole race of beings, pits itself against this single man? May he kill all? What if the attackers are as human as himself? What if he were the creature of the first instance, who otherwise will infect a world with disease? You see, there is no area where a simple touchstone avails.”
[Jack Vance, The Last Castle.]
Where, in the above passage, does the right to life prevail? Whose right to life, and at what cost to others?
It’s not so simple, is it?
The natural rights – i.e., the rights to life, liberty, and peaceably acquired property – that libertarians and most conservatives would agree on arise from the nature of Man. They are not provable theorems. They’re abstractions brilliant men formulated after observation, not from deduction or induction, as a way to concoct a political order they believed would be viable. If those rights “exist” – and that’s a thorny row to hoe – they are metaphysical properties, just like the rest of the natural order.
The natural rights cannot be derived from other postulates as a matter of logic. When we say that we can “reason” our way to them, what we really mean is that from observation, we’ve concluded that certain conditions we regard as supremely desirable appear to require them. C. S. Lewis grasped that. But let’s try a few proofs. Here’s an advocatus diaboli sparring with a rights advocate:
AD: “Why do you believe there is a right to life?”
RA: “Because without it, society couldn't hold together.”
AD: “Well, why is it so important that society hold together?”
AD: “Why do you believe there is a right to life?”
RA: “Because without it people would slaughter one another.”
AD: “Well, why should that matter?”
Such ripostes might strike a decent man as forays into madness, but that’s just because he values the same things we do. History tells us of vast empires whose rulers would have scoffed at a right to life. Some of their regimes were successful for several decades. Consider the following hypothetical exchange with a famous villain:
FWP: “Herr Hitler, why did you kill all those Jews?”
AH: “Because it was intrinsically right.”
How would you refute that, especially in light of the historical fact that not one regime on Earth was willing to make war on Hitler’s Germany until he embarked on a campaign of military conquest?
Freedom of religion as enshrined in the First Amendment to the Constitution was a concern of importance to the Founding Fathers. Many of their forebears had come to the New World specifically to avoid having to support an established church: i.e., a church the State had selected as the “official” church of the realm, to which it directed funds from the public treasury. Under the Westphalian doctrine of cuius regio, eius religio, such churches were regarded as reasonable and proper. The religious dissidents of Europe disagreed with being forced to support such a church with their taxes.
Yet history tells us that the early colonists’ passionate belief in their “right” to practice their own faiths did not preclude the establishment of their preferred churches in the New World. Indeed, Massachusetts had an established church into the 1830s. Such churches were disestablished only after regional religious affiliations became too diverse for an established church to withstand popular disapproval.
Where, in that picture, is there any notion of freedom of religion as a natural right, beyond all contradiction?
For a final thrust, we have the irreducibly narrow case of freedom of religion as “freedom of conscience:” i.e., the freedom to believe what one likes, divorced from all considerations of conduct. Is that a “right?” Or is it merely a condition no one can undo except through murder? If the latter, how does it involve adjudication or enforcement? If it doesn’t, there’s no place for it in a legal or political scheme.
The pre-logical character of natural rights – i.e., as postulates rather than as theorems – is why Thomas Jefferson wrote that “We hold these truths to be self-evident.” Freedom of religion is no exception.
I've been down this road many times over the past three decades. It's time we were candid about it.