Or, “why a misformulation of Constitutional rights has restricted, rather than liberated, the natural rights of man”

Initially, the Founders formulated the Constitution not to delineate the rights of the individual, but to restrict the powers of government. Soon thereafter, it was decided that the Constitution indeed needed to list some individual rights, so greedy was government for power. Hence, the Bill of Rights promised the American public a certain set of rights. Unfortunately, this was a hodge-podge solution that failed to address the fundamental reasons behind those rights – the right to your body and property [1]. Moreover, the misunderstanding of these rights has led to supposedly pro-liberty people taking on some very strange positions. I address a few of these rights here and hope the reader can apply the logic elsewhere.

Right to Freedom of Religion

The easiest right to dissect is the right to freedom of religion. This right has two inherently-intertwined components. The first is the right to believe whatever you want about the religious nature of the universe. The second is the right to practice your religion as long as you do not damage others. This fundamental right is held to be appropriate nearly-unanimously in the United States. We do not want government to restrict peaceful religions.

However, this right is really only smokes and mirrors. Why do we have a right to freedom of religion? More precisely, why are the protections only limited to religion? Religion happens to be just one of the more-strongly held beliefs by an individual – indeed, it was central to the debate at the founding of this nation because it was colonized in part by religious outcasts. Yet the nature of the right to freedom of religion is to separate out one specific belief that people have and allow freedom in that one dimension. Again, why only religion? If my conviction in something other than religion is as strong as another man’s in God, why should I be any less free to freely use my property as I wish? And even that gives too much ground to the government. Even if my belief is weaker than the belief of a religious man, I should have the same freedom in my affairs as he does in his religion. I do not wish to offend religion here (I am a Christian myself), yet ask yourself this – why should we arbitrarily only protect the right of people to use their property as it regards to magical men in the skies? Even if you do not believe your religion is concerned with “magical” men but very real ones, you certainly believe that that other guy’s god is a magical man in the sky. The argument here is not against religion – it’s against singling out practice of religion as the one thing that is guaranteed protection against the government, while religion is just one of the many things people do in their lives – and there is no reason to separate it out.

People must see that they do not have a right to freedom of religion inherently disjoint from their other rights. The right to freedom of religion is really better phrased as the right to own your body and property and decide how it gets used as long as you do not deny others the same right over their bodies and property. In fact, the right to property solves all the objections raised by the religious right when they argue on the basis of freedom of religion. Try it. You’ll be surprised. All that religion amounts to is a certain belief and non-violent action upon that belief. Many other categories of action match this very same description. Why is only religion protected?

The Right to Freedom of Association

I wager that as soon as the reader read the title of this section, numerous arguments and emotions immediately sprang up. “Of course we have the freedom of association! Belief to the contrary amounts to slavery!” Indeed, it’s not my goal here to argue that any individual should be forced to associate with other individuals. In fact, my goal is to show how a misunderstanding of the freedom of association leads exactly to this forced association.

One of the reasons I bring up this right is because of the “Right-to-Work” (RTW) laws currently making the rounds in the nation. Gary Chartier has a wonderful article over at FEE destroying RTW laws as unlibertarian and anti-liberty [2]. I strongly suggest you read it.

Here is the relevant background in relation to those laws: The government in many places forces employers to negotiate with labor unions. This clearly violates the right to your property. It institutionalizes by law the union shop – a condition where employment in a business requires joining a union. Conservative reactionaries have thus turned to the creation of RTW laws, which by law ban the creation of all union shops. The problem with this law is that it prevents business owners from voluntarily creating agreements with unions as well. RTW laws don’t fix the injustice initially created by government (favoring of unions). Instead, they shift the violation of rights onto another group – labor unions. And since labor unions are at their foundation a voluntary gathering of individuals [3], RTW laws are anti-liberty.

The reason I bring this up is not only to lavish praise on Chartier’s wonderful article. What really struck me is the comments below the article – on a pro-liberty website! Here is one which summed up the sentiment:

Drivel! All this talk about rights. Well don’t I have the RIGHT to not join a union? Save teh BS preaching! All this selective freedom talk. Typical leftist. We are free to do anything the government allows us to do, is a liberals view of freedom.

My disagreement is not over the capitalization, spelling, or general ad hominem attacks presented in the comment. My disagreement comes with the content. The error is demonstrated more explicitly here:

What about my right to *not* join a union? The state isn’t taking away people’s rights to contract; it is giving it back to people who are forced against their will to join unions they do not support, just so that they can earn a living. It is giving back the right to freedom of association, which we do not have when we are required to associate with a particular union.

What this commented is essentially arguing is that banning employers from forming voluntary contracts with other groups of people is in fact increasing the freedoms of society. I hope that it’s obvious that this is absurd. Analyzing the matter from a property-rights perspective makes it crystal clear: A business owner has a property right over the business. He may at any time do anything he wants to his company (mind you, I don’t mean the bodies of his employees). He can decide to one day simply shut down the company. He could decide he wants to arbitrarily cut half his workers. He could decide to paint the interior of his buildings neon pink, and he could decide that as a condition of employment everyone has to listen to NPR or Rush Limbaugh – however he may be inclined. The point is that a business is not some arbitrary job machine. A business is a bunch of property that the owner has happened to decide to use to employ others and thus provide them and himself with some money.

As such, an employer has the right to sign whatever contract he likes that involves his property as long as it doesn’t damage the property of others. Joining a union can be a condition of employment just as many other conditions. I’m appalled that the right to freedom of association is used to argue that we should use government force to prevent business owners from doing what they decide is best for their business. The conclusion is a perversion of morality, because it really argues that we should force business owners to associate with non-union workers on their own property!

Right to Freedom of Speech

I will not spend too much time on this because it has been addressed previously in the literature [4]. However, I would like to summarize the conclusions. You do not, in a free society, have an absolute right to free speech. You certainly have a right to your own body and vocal chords, but you do not have the right to waltz into a person’s bedroom and wax eloquent about the marvels of voluntary communes or whatnot. The point is that you can say whatever you want on the property of a consenting owner. You do not have a general right to free speech everywhere. Hence, it’s really more appropriate to not talk of a right to free speech in a free society at all, but rather to talk about the right to do as you please on your property and that of consenting owners.

Right to Privacy

I finally hit the one that most people may cringe at reading. Yes – I am about to argue that a person doesn’t have a right to privacy. Unlike the previous sections, I am not really claiming that the right to privacy is misunderstood. Here, I am claiming that the right to privacy essentially doesn’t really exist as most people understand it.

One of the first readings I would recommend to get acquainted with the type of logic used here is Block and Hoppe’s “On Property and Exploitation” [5]. It is not directly related to the task at hand, but it is very good for getting the hang of libertarian analysis. It discusses how a person has the right to physical property, and not the value/price of the physical property. I do recommend you read it at some point, as it serves well to iron out your understanding of natural rights theory.

Next, a similar sentiment is expressed by Rothbard when he discusses “reputation”:

“…someone’s ‘reputation’ is not and cannot be ‘owned’ by him, since it is purely a function of the subjective feelings and attitudes held by other people. But since no one can ever truly ‘own’ the mind and attitude of another, this means that no one can literally have a property right in his ‘reputation.’ A person’s reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population.”[6]

My purpose in presenting these tangentially-related arguments is to hopefully have the reader “disentangle” the emotional arguments for the right to privacy from the logical ones. And now, onto my part. What is my thesis? You do not have a right to privacy per se [7]. You instead have the right to property.

The right to privacy as commonly understood would essentially mean that you can control the peaceful actions of other people with their own property. The right to privacy would mean that you can forcefully prevent other people from publishing information about you, when this information in itself does not harm your property. Even if it harms your reputation, as Rothbard notes, you have no right to a reputation, because a reputation is what other people think of you. To have a right to reputation you must have the power to control the minds of everyone around you and all their thoughts about you.

Another thing that the right to privacy pretends to cover is legal protection against “peeping toms.” That is, you have the right to use force against anyone who looks at your actions. You might protest that it is something else, such as the right to not be seen when you are indecent, but there is really no difference between the right to prevent peeping toms and the right to not be looked at at all. Being naked is one of the many things people do in their lives. Many people happen to be embarrassed by being seen in their full natural state. There is no reason to say that looking at you while naked is legally any different from looking at you when clothed. Perhaps objections of “decency” spring up, but that’s really nothing more than adherence to “traditional” values that ought to be reserved as personal morality rather than interpersonal morality. Do I encourage such behavior? No, it’s weird and creepy. Do you have any right to use force against this person if they are respecting your property? No.

But wait! No! I’m not advocating that you run out in public and expose yourself! Neither do I desire a society where everyone is out to publish your every thought! Just because I do not think there is a legal right to privacy, it doesn’t mean that privacy isn’t a desirable social construct (so to speak)! The right to property in many ways grants you the privacy you desire! Rothbard is ever eloquent in his words, so I quote him again:

“It might, however, be charged that Smith does not have the right to print such a statement, because Jones has a “right to privacy” (his “human” right) which Smith does not have the right to violate. But is there really such a right to privacy? How can there be? How can there be a right to prevent Smith by force from disseminating knowledge which he possesses? Surely there can be no such right. Smith owns his own body and therefore has the property right to own the knowledge he has inside his head, including his knowledge about Jones. And therefore he has the corollary right to print and disseminate that knowledge. In short, as in the case of the “human right” to free speech, there is no such thing as a right to privacy except the right to protect one’s property from invasion. The only right “to privacy” is the right to protect one’s property from being invaded by someone else. In brief, no one has the right to burgle someone else’s home, or to wiretap someone’s phone lines. Wiretapping is properly a crime not because of some vague and woolly “invasion of a ‘right to privacy’,” but because it is an invasion of the property right of the person being wiretapped.”[8]

This is just one example of how the right to property allows for the existence of privacy. No one is allowed to enter your property without your permission [9]! That means that being wiretapped is an invasion of property [10]. What about the peeping tom? you might ask. If you find him so annoying, why not close your shade? The peeped-upon was fully capable of preventing the peeping, but chose not to. Furthermore, specific property owners can make invasions of privacy on their grounds illegal. This, for example, might prevent people from peeping over bathroom stalls at McDonalds (if only this were the greatest challenge we faced in fighting for liberty!). I leave other scenarios as an exercise to the reader, if s/he needs to waste some time.

As a last note, I will take a moment to point out from where the “right to privacy” might have come. Many people somehow believe that the 9th amendment gives them the right to privacy. Rather, I might see the 4th amendment as a more credible “source” of this right [11] . The relevant portion is this one:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

Somehow, people have spun this into being the “right to privacy,” when in fact, the 4th amendment really reads much better as a codification of the right to property – you have the right to be secure against searches and seizures. What does this mean? Essentially, police aggressing against your property.

Conclusion

It has not been my purpose here to restrict the rights of people. Rather, I seek to clarify the rights that people have so that their misunderstanding doesn’t violate the rights of others. Let me say that again – whenever people use the force of government to enforce “rights” that they in fact do not have as derivatives from property rights, they necessarily violate the rights of others. Exposing the above “rights” as non-rights in fact makes society more free – just as showing that no one has the “freedom to murder” would [12]. I have provided only a cursory overview of a few “rights that aren’t” – I’m sure the literature covers them in more depth than I have here. The conclusions I have drawn may at first seem foreign to some readers, but I hope that in time you will be convinced that whatever good you thought the above rights have in fact comes from the right to property, not an ad-hoc collection of rights. To libertarians who already understand these issues, do not be discouraged by the apparent widespread belief in these rights. I prefer to see this as an opportunity to use the rights above to lead people to understand property rights better. For example, the rights to speech and the right to freedom of religion have strong potential for breaking down the statist mindset. In this regard, they might be considered “gateway rights” to help people understand libertarianism. Look for a future title of mine with the keyword “gateway.”

-Wheylous

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[1] I only separate body and property for emphasis. In fact, since the right to property is merely the right to a scarce resource (and your body is indeed a scarce resource), the right to your body (self-ownership) is just another part of your right to property.

[2] “What’s Wrong with Right-to-Work”

[3] Two objections might be brought up at this point. The first is that of Walter Block that while unions may be free-market organizations, almost all unions try to use the government to achieve their ends. I respect his opinion and his argument points out an unfortunate history. However, the monster we should be fighting is government-granted privilege to unions, not the very existence of unions themselves.

The second objection that might be raised is that by striking, workers break their contract. The problem with this, however, is that employers have no right to force you to continue to work at your current job. The employers might very well decide to then stop paying the wages of striking workers. They may bring in scabs. Another possible outcome is that the workers and employers sit down, negotiate, and work out a new contract. However, no individual can actively be forced to work for someone.

[4] Rothbard comes to mind – ‘”Human Rights” as Property Rights’

[5] http://mises.org/etexts/propertyexploitation.pdf

[6] For a New Liberty, chapter 6, page 117

[7] per se comes from the Italian “for itself” or “by itself.” It means “inherently or by, of, for, or in itself” In the article, it’s used as “you do not have a right to privacy in itself.” I choose to put this as a note because it bugs me when people think that per se is actually “per say,” which would mean “so to speak.”

[8] The Ethics of Liberty, Chapter 16

[9] If you’re acting peacefully, of course. If you’re pointing a gun at passers-by, people have every right to barge into your house to make you drop your weapon.

[10] The violation of property rights could be either against you or your telephone company, depending on where exactly the wiretapping occurs.

[11] Really, it’s not the Constitution that gives you rights. If a constitution were what actually gave people natural rights, then people who live under no constitution would be fair game during hunting season. I hope that the reader does not believe this to be the case. This seems like an obvious point to me, but I’m often surprised by how many people think that it is in fact the Constitution that gives them natural rights. On this issue, see my article “Social Stability, Rule of Law, and the Free Society”

[12] Some people might argue that you have the “freedom to murder” – that is, when someone threatens you with aggressive deadly force, you may justly retaliate with deadly force. While this is correct, it is an extension of the right to property, not some “right to murder.” Claiming you have the right to murder gives the false impression that you may do so in any circumstance. The proper understanding is that you have the right to property.

Tagged: ethics, free speech, freedom of association, freedom of privacy, freedom of religion, legal ethics, natural rights, peeping tom, privacy, religion, right to privacy, right to property, right to religion, right to speech, right to work, rights, speech, union shop, unions, wiretapping