It's a right (says the left)

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master – – that’s all.”
(Through the Looking Glass, Chapter 6)    

This post was inspired by the claims of politicians lately that health care is a right. When I started this I was watching a call-in program on C-Span where it is being discussed. It is quite obvious that liberals and conservatives were thinking about “rights” in different ways. It seems like a simple question. But as I learned when I’ve asked students what “democracy” meant, there are more than one answer. And if there is more than one answer, then it is not as simple a question as it appears.

There was a time when I was young when I would have fully agreed that health care was a right. I was very liberal and also very politically uneducated. As unorthodox as I was in many ways, and relatively immune (I said relatively) to peer pressure and believing what I was told, I pretty much adopted my family’s views on politics. That’s because I really wasn’t interested and never really heard other views until I was fairly well indoctrinated. Back then, I even thought there might be a “Constitutional right” to a clean environment. You never stop educating yourself about policy or politics if you are so inclined, but my own education started when I was a young lawyer in my mid-20s. Best I can remember I started looking at the “other side,” who I thought of as the bad guys, on the right then because I was amazed that so many people liked Ronald Reagan.  I never became a conservative. Just there religious views would be enough for me to generally reject their philosophy. But, I ceased being a liberal too. In fact, it was a long slog to become a moderate because it is so hard to admit to yourself that the opinions you had formed – just might be wrong or even that there were other valid opinions out there. I’ve written elsewhere about my political development and won’t repeat myself much, but I call myself a moderate, not because I am more “fair” than others (everyone thinks they are fair) but because I seem to disagree with both conservatives and liberals roughly the same and often, sometimes even when they know me well, they tend to see me as the opposite of what they are.

But, just because you are a moderate or independent (that is, no party allegiance) doesn’t mean you don’t think that some ideas of one party or the other is plain wrong or that they haven't gone off the deep end about any particular issue or in general. I felt that way about Republicans when they were in heat over impeaching Clinton because he had sex outside his marriage and even – as if the White House was a church – in the Oval Office. And I kind of feel that way about liberals right now (although both parties gave us the worst choices for president in history).

Democrats like Nancy Pelosi, Elizabeth Warren, John Lewis and Bernie Sanders have been very vocal that health care is a “right.” I find that preposterous, unless we mean by a "right," something the government has provided by legislation that we are “entitled” to as a member of our society or class. But, that’s not what they mean, because there is no such law right now which says healthcare is a right – not even Obamacare.

When they say it is a right, or someone else says it is not a right, I’m pretty sure they mean by it the same thing they mean when they talk about a right to free speech or other rights that some people think are “God given,” and others think are just part of our social contract. It is something you have, not something you are given or can be taken away. And that’s generally what I will talk about here. But, to determine if people have a “right” to health care, you have to better define what it is. In this case, I will try to define what liberals and conservatives each mean by it.

When I bother to try to define something, I am not always that interested in the dictionary definition, but what I think people really mean by it. Sometimes it is the same, but sometimes different. Words do not exist except as symbols, which are concepts in our minds, or ideas. We seem programmed to learn language, at least most people are, and most young people can effortlessly learns several at a time. Just as example, the letters of the word “key” in that order do not have to mean a tool for opening a locked door or critical information in order to understand something or an island on a coral reef. In fact, the word “key,” as a door opener, is not so in French (“clef,” if my high school French is still current) and the sound of the word in Spanish can mean “who?” And, of course, as with “key,” one sound often has different meanings. A “right” too has different meanings. For example, it is a means of orienting as in right and left. But, even when talking about it in the political sense, people mean different things when they use it.

Consequently, when we say what a word means, or answer a question like “what is a right?” we have to acknowledge that it can mean different things to different people and at different times and places. And even a single person in one place and time can use it in different ways.

Conservatives and liberals, which probably describe the majority, but not a plurality of voters, use “right” or “rights” very differently, although it might also be said, as Humpty did, that it means exactly what they say it means. If we are talking about political parties or ideologies, there is not a lot of consistency. They change their own minds if it is politically expedient, and then cite the opposite as authority. So, there are always exceptions. I’m making generalizations, because that is usually the best you can do.

What is a right is an important question because it is fundamental to understanding liberals and conservatives as well. You could take the essence of the meanings (and I haven’t even gotten there yet) and apply it to other issues. For example, the purpose of government is closely related. So is the issue of Constitutional interpretation.

And, I am only speaking here of the broadest sense of rights, that is, the individual’s relationship to government, not particular rights found in positive laws.

Conservatives generally have two related ways of defining rights in the larger sense. One is -- those prohibitions on the government that are embodied in the Constitution or so generally recognized in the nature of our type of government such that we are entitled to them, many of which are embodied in the Constitution. The other is – those prohibitions on government to us given to us by God (I am having the argument here about whether God exists – they believe he does and have assigned this role to him). Another way to say that is that there are prohibitions on government and freedoms that “God” gave us, or are “unalienable” and no one can take away from us. Note that it is almost always framed in the idea of a prohibition against government.  The government can’t make us do something or deprive us of something we have. I’ll leave aside limitations for now. This view explains why so many conservatives believe in textualism or originalism. It is a fixed number of rights that do not change over time unless the Constitution is amended. The Constitution set a template and congress can make laws provided for in it, which are sometimes called “powers.” Limits are, in the abstract anyway, are found in the text or as historically preserved or as reason would dictate.

Liberals also generally have two related ways of defining rights. One is the same as the first one I stated Republicans believe concerning the Constitution and our society. The other is where the real differences lie. Liberals tend to believe that rights include those things which are consistent with what they feel is “good government” or make sense in the modern world. They tend to read these into the Constitution. Whether a theorist might say that it is because the Constitution is a “living document” (and no, they do not think it has consciousness or is actually alive – it is a metaphor) or that the founders set a template and it has to be interpreted by reference to modern values, doesn’t matter so much as the result. It is a broader reading which does not require amendment for change to occur, because it allows congress to go beyond what is expressly stated in the Constitution (powers). Some seem to think that there are no limitations on what congress can do if there is a rational explanation why it needs to change. Congress knows few bounds beyond what is expressly restricted (and even there, the restrictions are looser, even where express). That also means “rights” can be prohibitions against government, but also entitlements from government.

Again, whether we are talking about rights, or Constitutional interpretation or the purpose of government, the very same general approach applies to each parties. Even the way they speak of the general welfare clause in the preamble to the Constitution (the “We the people” clause), reflects this understanding. They agree that government can be restricted from doing certain things. Sometimes they even generally agree (as when the NSA was recording data from our phone calls). They more so disagree more on the other end – whether rights includes entitlements.

I will say here that generally, I think in the abstract that the conservatives are more right, solely because, if limits do not have some firm, if not arbitrary, boundaries, it lends itself to government being more important than individuals. Moreover, the Constitution provides for its own modification. 

That being sad, conservatives are always fighting a rear guard action. It is the nature of the two ideologies that one is more offensive in changing our culture or overarching laws – the liberals (because they are trying to change or progressive) – and the other more defensive  – the conservatives (trying to conserve or keep the status quo). I didn’t come up with that myself. It’s inherent in their philosophy.  I always recommend the essay “Why I am not a conservative,” by Hayek, which you can find online. I’ve written on it before. It is a poorly named essay because it presupposes people knew he wasn’t a progressive – in fact was closer to the conservatives. It is also a difficult essay to understand if you don’t understand by “liberal” he meant what we call “libertarian.” What we call liberals or progressives, he calls “progressives” or “socialists.”  I refer you to my previous posts (5/23/11, 7/25/11 and 8/28/11) if you want to know more. I haven’t re-read recently (I frequently go back and correct my embarrassing grammar I didn’t edit when I posted) but I believe I set out much of my political philosophy.

So much for the abstract. In reality, the liberals have their own claims. If you believe that the Declaration of Independence helps illuminate the Constitution, and many scholars and commenters have thought just that, numerous phrases come to mind, particularly from the second paragraph – “all Men are created equal,” “Life, Liberty and the Pursuit of Happiness,” “Safety and Happiness,”  -  and you consider the general welfare clause in the preamble of the Constitution, there is an argument to be made that the more expansive view of rights is what moves us towards “a more perfect union.” think of all of the social advancements our society has made since Teddy Roosevelt, and in so many cases I can’t help think, thank God (said the atheist) for the liberals. The end of many forms of discrimination, the right to collectively bargain (although as applied I often rue it), the increased sexual and concomitant freedoms, not to mention the loosening of social mores. The reason the liberals seem to always win in the end is because people like these things in general.

I’m not suggesting the conservatives also don’t play an important role too though. But for them, the progressive notions of the left would have swapped out capitalism and a number of individual rights for socialism and the demands of the state long ago as has often happened in places where it has been tried. And even now, it seems to me that having succeeded with so many changes in our society for which I am glad (and I think most Americans are), they want to enforce these views on everyone, not just in terms of prohibitions, but personally. That’s what the health care mandate is; that’s what hate crimes laws are, that’s what some supposed anti-discrimination laws are. You are now required to participate in something; in some cases you are now required not to think a certain way and forced to participate.

Since 1788 we’ve been slowly trying to balance the two ideologies under different names, but usually represented by two dominant parties. And like many things on a long path, they ebb and flow, while heading in a general direction. Unfortunately for conservatives, even though there are periods of push back, the general direction is left. And to make those new ideas into Constitutional law, liberals have relied on a number of strategies, the most successful of which has been deeming certain rights in the Constitution as “fundamental,” that is, to put it one way, inherent in our system of government. Conservatives, or at least many of them, have jumped upon that bandwagon in order to find their beloved 2^nd Amendment fundamental status. In doing so, they have abandoned the argument that there is no such thing as a fundamental right in Constitutional law.

Again, I have to point out, that because of the nature of political parties with their win-win mentalities, these are all generalities, and either party, often both at the same time, will spin on a dime theoretically to try to win something it wants. I usually use as an example Bush v. Gore, when all of a sudden the Republicans thought that the federal government would decide the outcome of Florida’s election though normally they are all about state’s rights and the Democrats all of sudden thought the state should decide, though they are normally all about federal control of pretty much everything. The reason – Republicans had a majority of judges on the Supreme Court and Democrats on Florida’s high court.

I do have a personal opinion. I don’t know anyone (I think) who would not like to have good health care for everyone if they thought it possible. I mean, why not, if we could afford it as a country. Some obviously believe it is a right, but, in order to do so, they have to argue that it is a new one based on principles of natural law. And to some extent this just means they want what they want, and calling it a right is an effective way to get there. Ultimately though, I can’t adopt this meaning of right, at least when I use it. Because if we can have anything anointed Constitutional, then all bets are off – there is no rule of law, just the rule of men and what they think should be a right as defined by the political majority. I doubt very much the left would like a right to life extended to fetuses (which it has not been), or a right discriminate. I’m sure we can go on.

As always, I await your comments (usually when I say that, no one has one – but . . . .)