Rights, Penumbras, and Emanations

Let’s talk about the difference between rights and priviliges.

I happen to be of the opinion that this distinction is quite simple: A privilege is something which is granted, a right is something that is inherent to a man by virtue of his existence.

The problem is, lots of people don’t understand what a right is. Their heads are filled with, in the grossly paraphrased words of various constitutional scholars; “the vague penumbras and emanations of the government and the judiciary”.

Rights are not granted by the government, or constitution, they are inherent to man (without regard to religion for those of you who think the inherent rights argument is based in a belief in God)

Fundamentally, there are two types of what people call rights: Inherent rights, and constructed rights.

Inherent rights are those rights we posess by virtue of being sentient beings; constructed rights, are all other things, taken as rights, which are not inherent rights. They are rights by law, but not by nature

For example, inherent rights would include, among others:

  • The right to not be attacked or killed out of hand by your fellow man
  • The right to own and hold property
  • The right to defend ones life and ones property against others
  • The right to determine the course of ones life through free choice
  • The right to be judged fairly by ones actions(that ones a bit fuzzy)
  • The right to think those thoughts that you wish to think
  • The right to speak those words that you wish to speak; presuming they are not, in effect, actions infringing the rights of others

Inherent rights cannot be taken, or limited; but by force, or willing consent.

Constructed rights would include the right to privacy, the right to vote, the right to marry (civily), and others.

While the articles of the U.S. constitution define the form, and structure of our government; the first ten amendments (and most of the rest of them) are primarily concerned with the strict limitation of how government may limit, administer, or restrict inherent rights.

When it comes to the constitution, I am pretty much a strict constructionist; a group of people who for the most part do not believe in constructed rights (yes I know that sounds wrong, but trust me, its correct).

A constructed right is a right by consent or by consensus, not by inherence, and therefore is not truly a right, but a construct of the society in which one lives. It may be limited or removed by legislative action, or the will of that society at any time. That’s not a right, it’s a privilege.

Most of the time we recognize this principle directly in law e.g. It is always lawful for someone to defend themselves against attack. It is not lawful in most states for felons to vote. This is because voting is a constructed right that can be limited or removed without force or consent, but self defense is inherent, and cannot be limited.

Lets muddy the waters even further…

There is a compelling constructionist argument that voting IS an inherent right, because in a society such as ours, voting is an inseperable component of the right of self determination.

There are also compelling arguments that privacy rights are in fact inherent rights; as an extension of property, and self determination rights.

Rough ones those.

I contend that the rise of the valuation of constructed rights, is essential to the core value of collectivism, and the single greatest cause for the decline in personal and moral responsibility that has occurred in our society since the mid 1960’s.

Constructed rights like voting, fair housing, health care (lord knows why people think thats a right) etc.., have become the “rights” that many people value, while they no longer believe in their basic property rights, or the rights to defend themselves

In allowing, and in fact encouraging people to escheat responsiblity for their own inherent rights to the sate through the practice of social welfare, the value of those rights is nullified. In fact, as long as one accepts state control over ones means of existence,and ones protection, one has no inherent rights, because one has willfully consented to their removal.

The fundamental principle of political collectivism is that the rights of the individual are subsidiary to the rights of the collective, as administered by the state. In order for this ideology of the supremacy of the state to succeed, the percieved value of inherent rights must be destroyed, to be replaced by those rights granted by fiat of the state.

Once the populace is conditioned to accept this as the natural order of things (as they have been in Europe for generations) the eventual descent into collectivism, and from there to totalitarianism seems, to me, to be inevitable.

This is not to say that constructed rights are invalid, simply that they are not truly rights; They are rights by fiat. Clearly rights by fiat cannot be granted the same status as true rights, in that by accepting that any core value of liberty can be created by fiat, one must also accept that it can be destroyed by it. If one accepts that, one is simply saying that rights are not; they are privileges.

Ok, so this is a hell of a lot of fancy language, on a subject that I stated above, was quite simple – and this essay is actually about half the length I originally wrote; I just cut everything extra out.

So here it is, the simple facts:

Rights cannot be taken away. No law, no regulation, no government, can take away my rights, or yours. Not only that, but no-one can limit my rights, except to prevent me from limiting others right unjustly (see my post “The Politics of liberty”).

No government gave me my rights, and no government can take them away. No man gave me my rights, and no man can take them away. They are mine, and I will excercise them, and I will defend them.

The only way I will ever have my rights violated is looking down a muzzle, and let me tell anyone who would try: I’m a better shot than you, I fight dirty, and I’d rather die on my feet than live on my knees.

The Politics of Liberty

I want to talk about what I believe in.

I’m a small “l” libertarian, but a lot of people don’t know what that means. I used to describe myself as a “disgruntled constructive anarchist”. I thought it might be an opportune time to explain what I mean by that.

“I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a constructive anarchist. Basically what that means is that I believe that all things being equal, responsible adults should be able to do whatever the hell they want to do as long as no one is getting hurt who isn’t paying extra”

This quote has been on the front page of my web site since 1997, and although it’s more than a bit flip, it’s also substantially accurate (besides, I’m more than a bit flip); Oh and I stole the last bit from Dennis Miller (good artists copy, great artists steal; from Pablo Picasso, Steve Jobs, Bill Gates, and Mark Stephens in this case).

Actually, calling myself a construcive anarchist is kind of a joke, or rather a mechanism for catching your attention. People hear the word anarchist, and it tends to make them at least raise their eyebrows.

I am in fact, not an anarchist. What I call myself when I am seriously trying to classify my beliefs is something else entirely:

I am a Muscular Minarchist. I believe in an absolutely minimalist government that provides a strong defense. I want a government that stays out of my wallet, out of my bedroom, and out of my business.

I’m going to break this out into four parts. Fundamental Philosophy, Foundations of Government, What Government is NOT ,and Participation in Society.

Now down to the squishy stuff…

Fundamental Philosophy

My beliefs on government are rooted in three core tenets.

  • The coercive restraint of human liberty is inherently evil. Control of ones person, property, and behavior should be the exclusive province of the sovereign man.
  • The only legitmate limitation of liberty is that which prevents transgression on the liberty of others, or which compensates those transgressed upon.
  • Without a disinterested arbiter, maintaining a monopoly of legitimate force with which it resolves disputes and enforces compacts between men, the liberty of the weak will be abrogated by the will of the strong.

I’m gonna get down to about fourth grade level here for a bit, because I want to talk about some very fundamental stuff.

Government is only good at two things: stealing, and killing. When you boil it down, that, at core, is its job. Government enforces the rule of law through the threat of force (killing), and administers and perpetuates itself through the seizure of assets (stealing, which it achieves through the threat of force, a.k.a robbery).

See here’s the thing; All earned compensation is in exchange for time out of your life. This is time that you could have used for something else (look up opportunity cost if you arent familiar with the concept).

You are given money in exchange for some of your time. The more commercially valuable your skills, labor, support, presence, looks, or body are, the more money you are given for that time. When you pay for goods, you are compensating those who sell the goods for their time, who are compensating the distributors for their time, who are compensating the manufacturers for their time and so on. Even when you are paying for a raw material or commodity like iron or gold what you are really paying for is the time it took to find, and extract, and refine etc…

That’s pretty basic economics, but there’s an important social and political implication there. If income is taken away from you (direct taxes) time is being taken away from your life. If property, assets, or money are taken from you without compensation (indirect taxes), time is being taken away from your life. You have just spent however long it took to earn that money, or acquire those goods or assets, in involuntary servitude to the one(s) who took it.

Involuntary servitude has another name: Slavery

Yes, I’m saying that direct taxes are slavery (actually, more on that later). Indirect taxes (tarrifs, sales taxes, excise and property taxes etc…) are closer to theft, but really, this is also slavery, because it’s all time out of your life, which you have in effect spent involuntarily laboring for the government without compensation.

If that isn’t slavery, what is?

Many people consider this concern for property and money to be venal, trival, irrelevant, or shallow, but when you think about what money really is, time out of your life, money (or property, which is interchangeable here) takes on a different meaning. Because compensation must be made for property acquired, and all compensation is in exchange for time out of your life, property rights are fundamental to liberty.

Ok so, with me so far? I’m making some HUGE generalizations, and simplifying things more than a little bit here, I just wanted to get some principles out there before y’all start saying “you just don’t like paying taxes”. There’s actually some philosophical foundation to this other than my irritation at not being able to buy more guns and pizza.

So, we’ve established how I feel about taxes, what about that other thing, the rule of law.

In an ideal society, there would be no need for any laws other than “you have to do what you say you will”, “you can’t take or destroy anything that isn’t yours”, and “you can’t hurt anyone who doesnt want to be hurt”, but lets face it, that aint gonna happen. A functioning society consisting of more than just family (and if it’s my family… well…), must have a government.

Notice, I never say that all government is illegitmate, just evil. It is sometimes necessary to do evil things, so that other evil will not be done. Killing somone is a bad thing, but not killing someone can be a worse thing. Someone shoots and kills grandma, bad, someone shoots the guy trying to shoot grandma, good. The problem comes when government exceeds those legitimate purposes which I will describe in the next section.

Foundations of Government

So, some agency must exist to enforce those basic principles I list above if a governed society is to function.

NOTE: I am using the term agency in this document in the sense of a mechanism, process, or structure, not explicitly a beaurocracy or constructed entity, though that me be the practical result.

Let’s enumerate just exactly what we need for legitmate government.

  • We need a neutral arbiter for disputes. This function is served by civil courts
  • We need to keep people from commiting crimes (the strong harming the weak). This function is served by police, which are a function of the executive office
  • We need to catch people who do commit crimes, to ensure they can be punished, and that restitution can be made. This function is also served by the police
  • We need to have a system for determining who is punished, how they are punished etc.. This function is served by criminal courts
  • We must prevent those from outside our society who would harm us, and our vital interests, from doing so. This function is served by the military (which is a function of the executive office), and to an extent by diplomats as part of the executive office
  • There must be an agency for negotiating and concluding agreeements with other nation states in support of our vital interests. This function is served by the executive office.
  • In the united states, or any other federal entity, there must be an agency for settling disputes between the states. This function is served by the federal courts and particularly the supreme court
  • There must be a system for creating and defining legislation. A written code of laws is essential to a free society. This function is served by the legislature
  • There must be an agency for selecting those who are given authority by the government, whether in police, military, court, legislative, or executive roles. In our society this is served through the franchise, as adminsitered by the states, counties, and precincts
  • There must be the systems and infrastructure in place to enable and support these functions. This function is served by the bureaucracy of civil service
  • There are some functions which are best served through collective action, such as public works. Though much of these can be privatized, there is a legitmate claim for functions such as roads to be provided by the government, as it is not possible to perform the basic functions of government without them. When not served through private contract, these functions would also be provided through the civil service

There are no other legitimate functions of government.


No really, none.

Make the laws, enforce the laws, enforce contracts, settle disputes, protect the citizens, protect the country.

That’s it.

Although that’s a pretty short list, it’s actually longer than many libertarians would agree to. As I said, I am a muscular minarchist. I think that any state without what I list above could not succeed, because it would be conquered (from within or without) by the darker demons of human nature if nothing else.

What Government IS NOT

Government is not your friend
Government is not your keeper
Government is not your master
Government is not your teacher
Government is not your creator
Government is not your babysitter
Government is not your conscience
Government is not your paymaster
Government is not your moral compass

Most importantly…


Societal Participation

If a free man is to participate in society, and obtain the benefits thereof, he must acknowledge his responsibility to obey the laws of that society, and to contribute to the maintenance and support of that society. A debt is incurred for these benefits, and must be paid through service to society, both indirectly, and directly through the payment of reasonable taxes.

Service to society takes many forms. Every time you don’t break the law, you are serving society in some way (as well as yourself, which in a properly constructed society should always be the case, but so often isn’t). By holding productive employment you are serving society. By helping the police, executive office, legislative office, courts, and military to preform their functions, be it through working in them, voting, training, acting as a witness, or whatever other form it may take, you are serving society.

All that said, taxation is the primary direct contribution from citizens in the service of society. Taxation is necessary for a governed society to function, as there must be some means for the government to preform the functions enumerated above, all of which have direct costs, and require compensation to those who preform these essential functions.

One may say that this is internally inconsistent with my argument above, but truly it isn’t.
Taxation in and of itself is not evil; as I say above, when one obtains benefit from society, one has voluntarily incurred a debt, which must be paid. What is evil (and I don’t use that term lightly, or in jest), is taxation in excess of this incurred debt. This is involuntary redistribution, and it is evil in all it’s forms.

Involuntary redistribution is NEVER justified under any circumstances, no matter how deserving one believes the benificary to be, or how little impact one believes it will have on the benefactor. Involuntary redistribution, is nothing more than slavery.

It doesn’t matter if those whose assets are being redistributed “can afford it” or “dont need it”, because you are stealing time from their lives. You are forcing them into involuntary servitude, WHICH IS SLAVERY.

So how does this fit into society today?

I am reminded every day that my ideals are just that, ideals. We live in a society, with a government that does everything that I believe legitimate government should not do.

Over the past 70 or so years (since the new deal), and especially over the past 40 years (since the great society), we have developed a culture where the abdication of personal responsiblity to the government (or it’s agents) is not only accepted, but often, encouraged.

I find this fact profoundly offensive, but I also have little power to change it as an individaul.

Here’s the thing: Societies are made up of many many individuals, and by changing minds one person at a time, we CAN grow back into a society of individual liberty. If I change just one mind, and in doing so inspire that person to change other minds, eventually we can, and we will free ourselves from the coercive limitation of human liberty.

This is my goal, and it is far too important to ever give up.

Show Us Your Papers

The quintessential image of totalitarian societies is that of the police officer with the ability to stop any citizen on a street corner, at any time, for any reason, and demand to see “their papers.” In the Soviet Union, that meant showing the passport you needed to carry with you at all times even if you were only traveling between Moscow and the thankfully now renamed city of Leningrad.

In post 9/11 America, it sometimes seems as if we are moving closer to that kind of society, as this story out of Denver demonstrates.

DENVER — Deborah Davis’ refusal to show her identification to federal police at a bus stop has turned her into a cause celebre among privacy-rights advocates.

Mrs. Davis, a 50-year-old Arvada, Colo., grandmother of five, was handcuffed, placed in a police car and ticketed for two petty offenses by Federal Protective Services officers who were checking passengers’ identification Sept. 26 aboard a Regional Transportation District (RTD) bus at the Federal Center stop.

Think about this. This woman was on a commuter bus, which just happens to stop in front of federal office building, and the officers in question thought nothing of stopping the bus and checking the identification of everyone on board in the name of “security.”

What they were actually accomplishing remains unclear, though:

The officers barely glanced at the passengers’ ID cards and didn’t check them against a master list.

So, one day, Mrs. Davis just decided to say no:

Mrs. Davis produced her driver’s license once, but it rankled her. The next few times, she begged off, saying she had left her ID at home. Finally, an officer told Mrs. Davis that she would need to show proof of her identity the following Monday.


“I spent the weekend trying to decide if the Constitution had changed since I was in eighth grade, and I decided it hadn’t,” said Mrs. Davis, who has a son serving in the Army in Iraq.

The following Monday, after the officers boarded the bus, one of them “asked me if I had my ID with me, and I said, ‘Yes,’ ” she recalled. “Then he asked me if he could see it and I said, ‘No.’ ”

As you can imagine, the officers did not react kindly to this:

Mrs. Davis had been talking on her cell phone when the officers approached. “One of them grabbed my cell phone and threw it to the back of the bus,” she said.

“The next thing I knew, two big policemen jerked me out of my seat, handcuffed me and threw me in the back of the police car,” Mrs. Davis said. “They wrote the tickets and threw them on the ground.”

Now, I am a strong supporter of law enforcement officers when they are doing their job. Harrasing people, however, which is what this clearly amounted to, is not a valid part of law enforcement. What valid purpose was served by stopping the bus and checking everyone’s identification just because it happened to stop in front of a federal office building ? If a terrorist with a bomb strapped to his or her chest really was on the bus, stopping the bus in front of the building for an extending period of time would be precisely the wrong thing to do.

Along with the state of airline security which I wrote about yesterday, this is yet another example of a practice that is engaged in more for the symbolic purpose of making it look like something is being done than for any legitimate security purpose. In the process, America travels further down the line where a police officer can stop you on the corner on a whim and ask to see your papers.

There’s more on this story at Outside The Beltway and by Nick Gillespe and Jacob Sullum over at Hit & Run

Cross-Posted at Below The Beltway

People Power Comes To Hong Kong

If the Chinese Communists thought that it would just be business as usual when they took over the former British colongy of Hong Kong in 1997, it appears that they may be sadly mistaken:

Hong Kong pro-democracy leader Martin Lee said that citizens of the former British colony have no option but to use “people power” in a bid to pressure Beijing for greater freedom. Ahead of a mass democracy rally in Hong Kong on Sunday, Lee blamed the Chinese-administered territory’s chief executive Donald Tsang “for not reflecting the strong aspirations of the people of Hong Kong to Beijing.”

“The people of Hong Kong have no other option but to show solidarity by joining together by taking part in peaceful assembly to voice our aspirations, to let the Beijing leaders know we really want and deserve democracy,” Lee told a public forum in Washington.

The source of this call for protests appers to be the fact that the Chinese are reneging on committments to greater democracy they made when they took over the city from the British:

When Britain handed sovereignty of Hong Kong back to China in 1997, the post-colonial constitution, or Basic Law, provided for the eventual full democratic election of the territory’s leaders.

However, the timing of the provision was hotly debated and led to a political dispute between Hong Kong democrats and communist leaders in Beijing.

Beijing reinterpreted the provision in April 2004 and ruled out a swift transition to full elections by 2007, apparently fearing it could spark political instability in the rest of China.

And there’s the key. If China allows full democracy in Hong Kong, then what are the people in Shanghai, Beijing, and elsewhere going to think ? China is becoming more interconnected every day, and news of democratic elections in Hong Kong will quickly spread elsewhere.

And, it appears that the people of Hong Kong are willing to fight to gain the freedom they were promised:

Lee urged the international community to support the pro-democracy movement in Hong Kong, reminding them of their backing of a 1984 Sino-British declaration under which Hong Kong was returned to China with an assurance of a high degree of autonomy except on defence and foreign policy.

“Ideally, we don’t have to take to the streets but let’s be realistic. Democracy doesn’t often fall from the sky, it doesn’t find itself in a silver platter. I think the people of Hong Kong realise that ultimately it is for us to fight for democracy although any help from overseas is greatly appreciated,” Lee said.

And how is the rest of the world reacting to these developments?

“Hong Kong in the eyes of Britain, which is a signatory to the Sino-British Declaration, is nothing more than trade (which) is so important they would not sacrifice the opportunity to get more business from China than take a principled stand,” he said. “I am happy to say the US government is different.”

Speaking as an American, that is a reassuring thing to hear.

Cross-posted at Below The Beltway

Driving ‘Round the Blogosphere

Interesting reading to check out in your spare minute a day.

Brian Doss, of Catallarchy, talks about what is seen and not seen with the creation of an ubiquitious Public Internet in this entry. Having been around the Internet, BBS (FidoNET), etc. about as long as Brian, all I can say is that he’s right and Al Gore is wrong.

See my article and Below the Beltway’s article for an interesting discussion of air travel security.

Lisa Renee of Liberal Common Sense tells us an interesting story about her daughter and a “modeling” agency. The thing that struck me? She recognizes that her daughter has to learn through her own experience, make her own decisions, live her own life. I wonder if our politicians raise their children the way they run the country, or the way that Lisa raises her kids?

Difster gives us a great suggestion for conversations with PETA members.

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