More discussion on how we wound up with 4 Catholics on the Supreme Court, with one nomination pending, over at Althouse. Is it because the Catholic tradition of natural law and of canon law and of legal thinking has produced a particular kind of legal scholar well-suited for the bench?
Here’s what I found interesting. Ann writes (partly in the post, partly in the comments) that the liberal position ought to be that rights are natural, something that we all have because we’re human, "as real as things like tables." But, she says, this notion "is dying out" among many on the left. Instead, rights are viewed by the left as "political constructs," things that exist only insofar as law enshrines them. Instead, she says, it’s the right who today is insisting that rights are "natural," based on natural law.
Maybe so. I take the natural-rights position myself, that whole "endowed by their creator" thing. You could also call it the human rights position. It does seem, doesn’t it, that it is a classical liberal position, to regard "rights" as something that one deserves always, that no government can take away? (I suppose you could argue that by breaking the social contract, one naturally forfeits certain of those rights.)
I have seen explicit arguments, in print, that people may have no rights that are not granted to them by law. One example that I remember vividly came from an op-ed in the University of Minnesota’s student paper, oh, about five years ago. I remember it because I wrote a letter in response. The op-ed writer was writing about abortion. She wrote that unborn humans have no right to be born, and the proof is simple: the law doesn’t recognize any such right, therefore they don’t have it, and no one can claim that there is such a right.
Normally op-eds supporting abortion rights, common as pennies, aren’t something I bother with. But the proof she offered was new to me. I’d never heard any liberal writer make the argument that merely repealing a law can destroy a human right. I have to admit I found it fascinating. So I wrote a letter asking how it could ever be possible that a government could violate human rights. What’s the point of Amnesty International? If torture is legal in this or that country, well, then, those folks don’t have the right to be free of torture. The Taliban (this was back when they were still around) does not violate the right of women to an education or to freedom of movement — those women just have fewer rights than we do, and thus shouldn’t expect anything better. People in North Korea or China shouldn’t complain about bad laws — where does their government say they’re allowed to? And so on and so on.
My point was that human rights are, by definition, the kind that no government can rightfully take away, no group of people has the authority to remove from any other. There are two ways to justify removing human rights from an individual: (1) to argue that the individual has forfeited that right of his own will (if this is even possible — many would disagree), (2) to argue that the individual is not, in fact, human.
Or you could take the tactic that there is no such thing as a human right. The danger of this position seems pretty obvious to me — if the political construct you cherish can be dismantled, then so someday might the political construct I cherish.
Where’s it come from? Is it just a rejection of the idea of Creator (because what other source of natural rights could there be?) and an elevation of Government to that position? Or is it because the rights-as-political-construct people (whether Left or Right) are aware that their ends require the abrogation of rights that are cherished by other people as natural, and they are confident that they can contain the destruction to only those rights that they are willing to give up themselves?
bearing blog 