The Politics of Freedom: Taking on The Left, The Right and Other Threats to Our Liberties

Introduction

Thomas Paine said that freedom had been hunted and harassed around the world and that only America offered it a home. Today, it seems to many Americans that freedom is on the run here, too. War and taxes, the nanny state and the Patriot Act, unsustainable entitlements all threaten the liberty Americans enjoy.

But our situation is not as bleak as that might sound. In the essays collected here I write most often about threats to freedom. But just as I chide the mainstream media for ignoring the good news about prosperity, technology, health, and life expectancy, I sometimes need to remind myself of the good news about freedom—which of course is what makes possible all that other good news.

It’s true that our recent political history does provide ample cause for depression. Forty years of Democratic control of Congress gave us what the Republicans in 1994 called government that is too big, too intrusive, and too easy with the public’s money. Dissatisfaction with that record and with the Clinton administration’s efforts to make government yet bigger and more intrusive led to a historic Republican victory.

It didn’t take long for the Republicans to get just as comfortable in power as the Democrats had become, especially after the election of George W. Bush gave the GOP control of the presidency and both houses of Congress. For decades the Republicans had promised voters that they would reduce the size and power of government if only they controlled the White House . . . if only they controlled the Senate . . . if only they controlled the entire government. Beginning in 2001, they did.

And what did complete Republican control of the federal government deliver? Federal spending up one trillion dollars in six years. An explosion of pork-barrel projects. The centralization of education. The biggest expansion of entitlements since Lyndon Johnson. A proposed constitutional amendment to take marriage law out of the hands of the states. Federal intrusion into private family matters. Spying, wiretapping, sneak and peek searches. A surge in executive power. And a seemingly endless war.

No wonder the voters quickly tired of that and returned Congress to the Democrats. As Dr. Phil would say, How’s that working out for ya?

Within two months of the Democratic takeover, the Washington Post reported that Democrats were charging lobbyists big bucks to meet Nancy Pelosi and the chairmen of the congressional committees that write tax laws, regulations, and spending bills—including, they noted, some of the favorite clients of now-imprisoned GOP power broker Jack Abramo ff. After six months, they’d held hearings and press conferences and all-night slumber parties.

But the war goes on. The spending goes on. We’re up to 32,000 earmarks in the latest spending bills. Congress has not limited the president’s claim of sweeping powers of detention and surveillance. Democrats are proposing huge increases in federal spending—on top of Bush’s trillion-dollar increase—and the tax hikes to pay for them.

Which is presumably why a poll in late 2007 showed that 68 percent of Americans said the country was on the wrong track. Only 25 percent approved of Congress’s performance, with independents slightly more negative than either Democrats or Republicans.

The politics of big government continues to flounder. Maybe it’s time for the politics of freedom.

The State We’re In

Assaults on freedom come from all sides these days. The right and the left, the military-industrial complex and the teachers unions, the environmentalists and the family-values crowd, they all have an agenda to impose on us through government. Political scientists offer a number of labels for the vast and powerful state that threatens our constitutional freedoms:

The Nanny State

On both left and right we’re bombarded by people who just want the government to take care of us, as if we were children. This takes many forms. Bill Clinton was famous for I feel your pain—with programs to match. George W. Bush responded with compassionate conservatism and We have a responsibility that when somebody hurts, government has got to move. Both conceptions offer a sweeping mandate for the federal government, one never envisioned by the Founders nor even by FDR. They combine Progressivism with Prozac.

Once in a while politicians reveal the patronizing attitude toward the voters that underlies these promises. Vice President Al Gore told an audience, The federal government should never be the baby sitter, the parents, but should be more like grandparents in the sense that grandparents perform a nurturing role and are aware of what parenting was like but no longer exercise that kind of authority.

Bush’s chief of staff Andy Card disagreed: The government should be the parents, he said; this president sees America as we think about a 10-year-old child, in need of firm parental protection.

And so we get sexual harassment laws from the Democrats and niggling regulations on workplaces, and smoking bans, and fat taxes, and gun bans, and programs to tuck us in at night.

And from the Republicans we get federal money for churches; and congressional investigations into textbook pricing, the college football bowl system, the firing of NFL star Terrell Owens, video games, the television rating system, you name it; and huge new fines for indecency on television; and crackdowns on medical marijuana and steroids and ephedra; and federal subsidies to encourage heterosexuals to marry; and bans to prevent homosexuals from doing so.

And on both sides the politicians and the intellectuals tell us they’re just trying to encourage socially desirable behavior—not a role that Thomas Jefferson and James Madison envisioned the government playing.

The Entitlements Crisis

Everyone in Washington knows that the burden of entitlement programs like Social Security, Medicare, and Medicaid is growing to an unsustainable level. But not only does no politician want to talk about the problem, they continue to pile on more benefits that make the situation worse.

Entitlements already cost taxpayers more than $1 trillion a year, about 40 percent of the federal budget. That’s a heavy enough burden. But the first members of the huge baby-boom generation are retiring this year. In barely 20 years, economists predict, entitlements will almost double as a share of national income. Today’s young workers will find themselves staggering under the burden of supporting tens of millions of retired boomers.

After years of discussion of this looming fiscal crisis, what have the politicians done? They all declare themselves fiscal conservatives and then keep on spending. They reject reform proposals and promise more benefits. Nobody shoots at Santa Claus, Al Smith used to say of Franklin Roosevelt’s New Deal hand-outs, and politicians have found that a useful reminder ever since. Instead of fiscal responsibility, in 2003 Democrats and Republicans combined to pass a prescription drug entitlement for Medicare recipients. Critics said it might cost a trillion dollars over the next decade.

But even that figure drastically underestimates the problem. Jagadeesh Gokhale, an economist at the Cato Institute, calculated the real costs of our current entitlement programs. The numbers are simply incomprehensible: The total cost of the drug benefit alone will eventually be more than $16 trillion, on top of the $45 trillion that Medicare was already going to cost taxpayers. That’s how much more money we’ll eventually have to raise in taxes if we’re going to pay off these debts.

Terror, War, and Surveillance

Radical Islamism is a real threat to freedom in the Muslim world, where people often face a desperate choice between secular dictators and religious totalitarians. Americans need not worry about living under an Islamic theocracy, but terror is certainly a threat to our life, liberty, and pursuit of happiness. Thus we need a strong national defense, better intelligence, and international cooperation to track and prevent terrorism.

But ever since the September 11 attacks, we have let fear and panic drive us to put up with infringements on freedom that change the nature of our society without any real increase in safety. It was understandable after September 11 that we would grant the federal government new powers to investigate threats of terrorism. But laws like the Patriot Act were passed without careful scrutiny, and without providing for the normal checks and balances of constitutional government. The more power government has in such areas, the more important it is to constrain that power within the law, with congressional oversight and judicial review.

In this new world the Bush administration is pushing secret subpoenas, secret searches, secret arrests, and secret trials. American citizens have been held without access to a lawyer, and without access to an impartial, civilian judge. The Great Writ of habeas corpus is denied. The administration’s torture memos have been most notorious for their carefully oblique definitions of what constitutes torture and for the fact that they were kept secret for years. What has been too often overlooked in discussions of the memos is their assertion that the president cannot be restrained by laws passed by Congress. They claim executive powers that far exceed what our constitutional tradition allows. As Gene Healy and Timothy Lynch write in their study Power Surge, The Constitution’s text will not support anything like the doctrine of presidential absolutism the administration flirts with in the torture memos.

One problem with the new powers that we have granted to government to fight terrorism is that they aren’t used just to investigate and prosecute terrorists. There’s a bait-and-switch game going on. Citing the threat of another 9/11, administration officials demand and get greatly expanded powers to deal with terrorism. But then it turns out that the new powers aren’t restricted to terrorism cases. And indeed the Bush administration has been using the powers granted in the Patriot Act with increasing frequency in criminal investigations that have little or no connection to terrorism. Those cases range from drugs and pornography to money laundering, theft of trade secrets, and simple fraud. No doubt we could prevent or punish more crimes if we allowed the federal government to put a surveillance camera in every conference room and every living room. But we don’t want to live in that kind of society. We’re moving in that direction, though, by granting government new powers to deal with terrorism and not restricting the scope of those powers.

And of course the fight against terrorism isn’t the only source of expanded powers for police and prosecutors. Long before 9/11 legal scholars were bemoaning the drug exception to the Fourth Amendment. The Supreme Court ruled that government investigators do not need warrants to conduct aerial surveillance of areas that any pilot could legally fly over, including both the fenced yards of private homes—where they might be looking for marijuana—and highly secure chemical factories, where the Environmental Protection Agency was looking for evidence of air pollution violations.

Every new war, real or metaphorical—war on terror, war on drugs, war on obesity—is an excuse for expanding the size, scope, and power of government. A good reason to organize antiwar movements.

The Politics of Statism

For any friend of freedom, one of the most frustrating aspects of our current political system is the absence of political leaders challenging any of these expansions of state power. It’s hard to find politicians, Republican or Democratic, who don’t support one or another aspect of the nanny state. Practically every member of Congress turns away when the problem of our unsustainable welfare state is mentioned. It won’t go bankrupt before the next election, so it’s not my problem, seems to be their attitude. As for the wars on both terrorism and drugs, most politicians just want to avoid being labeled as weak. The Patriot Act passed the Senate with only one dissenting vote, even though few if any members of Congress had actually read the bill. Most Democrats, including most major presidential candidates, joined virtually all Republicans in voting for the authorization for war with Iraq. And virtually no elected officials will protest the insanity of the war on drugs, or even vote against its continued escalation.

It’s not that politicians couldn’t show a little courage once in a while. After all, gerrymandering and campaign finance regulations have given House members a reelection rate of over 98 percent. With so little to fear from the voters, they ought to be able to vote their consciences. But there aren’t many citizen-politicians these days; they all want to be part of a permanent ruling class, in office forever until they collect their congressional pensions, so they try to play it safe. All the talk about increased polarization between Democrats and Republicans just obscures the increasing agreement on most aspects of the welfare-warfare state, a sprawling federal government that promises to meet our every need, as long as we give it ever-increasing amounts of money, and keeps us embroiled in conflicts around the globe.

It’s no wonder that ever-larger numbers of Americans express disgust with the current political establishment, even though the election laws make it very difficult to organize and fund a new party, an independent campaign, or even an insurgency within the major parties.

The Good News about Freedom

After a litany of problems like that, it’s easy to get discouraged, to believe that we’re losing our freedom, year after year. Libertarians often quote Thomas Jefferson: The natural progress of things is for liberty to yield and government to gain ground.

But let’s take a moment to think about some of the laws we don’t have anymore: Slavery and established churches. Segregation and sodomy laws. Sunday-closing laws, 90 percent income tax rates, wage and price controls. In many ways Americans are freer today than ever before.

Politicians shouldn’t get much of the credit for that. They tend to react, not to lead. Social change and a mass movement challenged segregation before Congress responded. Popular resentment over rising taxes led to Proposition 13 and then the election of Ronald Reagan. A court challenge struck down the last few sodomy laws, which had fallen into disuse anyway. Economists produced enough evidence on the costs of transportation, communications, and financial regulation that Congress finally had to recognize it.

It’s certainly not time to rest on our laurels. But we should take pride in the freedom that we have wrested from government and remain optimistic about the future of freedom.

The Libertarian Vision

When I argue for a society that fully recognizes each person’s right to life, liberty, and the pursuit of happiness, I’m often asked: Where’s an example of a successful libertarian society? The answer to that question is easy: The United States of America.

As I noted above, the United States has never been a perfectly free society. But our Constitution and our national sense of life have guaranteed more freedom to more people than in any other society in history, and we have continued to extend the promises of the Declaration of Independence to more people.

More than any other country in the world, ours was formed by people who had left the despots of the Old World to find freedom in the new, and who then made a libertarian revolution. Americans tend to think of themselves as individuals, with equal rights and equal freedom. Our fundamental ideology is, in the words of the political scientist Seymour Martin Lipset, antistatism, laissez-faire, individualism, populism, and egalitarianism. Some people don’t like that fact. Professors Cass Sunstein and Stephen Holmes complain that libertarian ideas are astonishingly widespread in American culture.

And indeed they are. My recent work with David Kirby found that in several different public opinion surveys, 15 to 20 percent of Americans give libertarian answers to a range of questions—answers that in combination distinguish them from both liberals and conservatives. But that figure seriously underestimates the prevalence of libertarian ideas. Many American conservatives are fundamentally committed to small government and free enterprise. Many American liberals believe firmly in free speech, freedom of religion, and the dignity of every individual. Both liberals and conservatives may be coming to better appreciate the value of the Constitution in restraining the powers of the federal government. The sharpening of the red-blue divide in the past decade causes liberals and conservatives to deepen their opposition to the other team. But it may obscure the number of Americans on both sides of the divide who are fundamentally libertarian in their attitudes.

As one measure of that, after the 2006 election the Cato Institute commissioned Zogby International to ask poll respondents if they would describe themselves as fiscally conservative and socially liberal. Fully 59 percent of the respondents said yes. That is, by 59 to 27 percent, poll respondents said they would describe themselves as fiscally conservative and socially liberal. When we asked the same question but noted that such a combination of views is known as libertarian, a robust 44 percent of respondents still answered yes.

The Message of This Book

Part of the challenge for libertarians is to help those Americans understand that their fundamental political value is freedom. Instead of being frightened and distracted by politicians, they should recognize that the main issue in politics—in 2008 and beyond—is the freedom of the individual and the power of government. That challenge has been a key theme of my writings, as this book shows. I’ve tried to collect here a wide range of essays, op-eds, and shorter items written over the past couple of decades, both before and after the 1997 publication of Libertarianism: A Primer and The Libertarian Reader. Most are presented in exactly the form they were originally published. I’ve made a few cuts to avoid repetition and changed a few titles. Some of the older articles may seem dated; on the other hand, sometimes they show that bad ideas just keep turning up again in new contexts. People may have forgotten, for example, that Americans were weirdly paranoid about the Japanese in the 1980s. Or that the price of 64K microchips was once potentially a cause for major government intervention. Or that the Democrats of the 1990s had many ridiculously ambitious and thoroughly collectivist schemes that we are clearly better off without.

In some ways the idea of freedom is very simple. Recall the bestseller, All I Really Need to Know I Learned in Kindergarten. You could say that you learn the essence of libertarianism—which is also the essence of civilization—in kindergarten:

Don’t hit other people,

Don’t take their stuff, and

Keep your promises.

Most people understand that idea in their personal lives. Now if only we could get people to apply it to public policy as well: Don’t use force to make other people live the way you think they should. Don’t use the power of taxation, regulation, or eminent domain to take their stuff. Don’t interfere with contracts—the promises other people make—and don’t make promises the taxpayers can’t keep. A politician who ran on such a platform would find a large and receptive audience.

There’s never been a golden age of liberty, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. There will always be a conflict between Liberty and Power.

In the long run, freedom works, and people figure that out. I have no doubt that at the dawn of the fourth millennium more of the human beings in the universe will live in freer societies than do today. In the shorter run the outcome is less predictable, and it will depend on our own efforts to capitalize on our strengths and learn to counter the trends that work against free and peaceful societies.

PART 1

The Libertarian Idea

Pro-Choice

The long struggle against communism kept libertarians and traditionalist conservatives allied despite their often significant philosophical differences. Since the demise of the Soviet Union, many commentators have speculated on the likelihood of growing strains in the libertarian-conservative relationship. Usually the speculation has centered on splits between libertarians and the religious right over such moral or social issues as abortion, gay rights, school prayer, and the drug war. Lately, however, a lot of mainstream conservatives have decided to challenge libertarians on the basic issue of, well, liberty. As Walter Olson pointed out in the July issue of Reason, the Weekly Standard has become a veritable Anti-Libertarian Central, bristling with articles like Up from Libertarianism and The Libertarian Temptation.

The more intellectual conservatives have focused their fire on the right to choose—not just, or not even, the right to choose abortion, but the general right to choose one’s course in life. William Kristol, editor of the Standard, writes in Commentary, Conservatism’s more fundamental mandate is to take on the sacred cow of liberalism—choice. Adam Wolf-son, executive editor of The Public Interest, despairs in a different issue of Commentary that the ‘right to choose’ is something which not only upper-middle-class liberals but all Americans take for granted. He worries that people have come to expect that they have a right to choose not just abortion but premarital sex, pornography, and even drugs.

Note that Kristol and Wolfson are criticizing not just particular choices but the right to choose itself. It is, of course, entirely reasonable for public-spirited citizens to urge others to make better choices—to practice temperance or even abstinence with regard to drugs and sex, to avoid divorce, to spend more time with their children, to treat employees with respect, to give more to charity. But the distinction between a free and an unfree society is that such advice remains just that, and the adult individual remains free to accept or reject it without legal sanction.

Conservatives wrap themselves in the mantle of American tradition, but on this key point they have trouble making it fit. The Declaration of Independence not only claims for all people the rights of life, liberty, and the pursuit of happiness but declares that governments derive their powers from the consent of the governed. Thomas Jefferson and the other signers apparently believed that choice was involved in the very foundation of the American republic. That’s what consent means: that we have a choice, and we have chosen to delegate some of our rights to a government under the Constitution, though we retain the right to alter or abolish it if it becomes destructive of our rights.

Kristol and Wolfson are struggling, not just against the principles on which America was founded, but against the modern world. It is capitalism that has given us moderns so many choices. Capitalism is the economic system of free people; it is what happens when you let people alone. The virtues that capitalism rewards—prudence, discipline, initiative, self-reliance, new ideas—and the affluence it creates tend to push people in the direction of confidence in their own abilities, skepticism about organized authority, and a desire to manage their own affairs in all realms of life. That’s why capitalism is not in the long run compatible with political repression or governmental restrictions on freedom.

Freedom is also necessary for the development of strong moral character. Surely Kristol and Wolfson don’t want to undermine the bourgeois virtues, but the effect of restricting choice is to eliminate the incentive and the opportunity for people to make good choices and develop good habits. People do not develop prudence, self-reliance, thrift, and temperance when their choices are imposed by force. Welfare-state liberals undermine moral character when they subsidize indulgence in destructive choices. Big-government conservatives undermine character when they deny people the right to shape their own characters through their choices.

Conservatives seem to have a surprising amount of difficulty distinguishing between coercive, government-imposed restrictions on choice and the kinds of voluntary social institutions that, after we consent to participate in them, limit our choices. The distinguished historian Gertrude Himmelfarb told a gathering recently that civil society is not rooted in liberty; it includes such freedom-limiting institutions as marriage, churches, and universities. There’s a confusion here about the meaning of freedom. We sometimes use free to mean able to do what I want to do without constraint. The refrain of a 1950s country song by Hank Snow goes, You’ve got a house and a wife and a job, Bob, but I’m still free. Yes, a house and a wife and a job limit one’s freedom in the sense that one has voluntarily agreed to pay the mortgage every month, to be faithful, and to show up for work every day. The various contracts we enter involve various degrees of commitment: under traditional employment at will doctrine, I can quit my job—or be fired—at any time; a mortgage is more difficult to escape; and it is quite reasonable that a marriage, especially when children are involved, is even more difficult to leave. But in accepting such limitations on our freedom of action we do not give up liberty—we exercise it.

Of course, in the assault on choice, welfare-state liberals and big-government conservatives find themselves coming together. The leftist writer Robert Kuttner deplores Americans’ excess amount of choice in his latest anti-market jeremiad, Everything for Sale. No doubt Kuttner is surprised to find himself on the same side of such a basic issue as Kristol and Wolfson, but that may be a harbinger of the politics of the future.

Cato Policy Report, July/August 1997

Pro-Life

Back in 1997 I wrote an editorial, titled Pro-Choice, about conservatives and liberals who want to deny people choice in all sorts of areas. So I thought it was time I wrote a pro-life editorial. This time I want to focus on one of the most important choices: the choice of life over death. (And once again, I’m not writing about abortion.) Not much controversy here, right? Everyone prefers life to death. Everyone wants to live as long as possible. You’d think so. But no, it turns out that lots of people are not so sure that life is a good thing.

The most obvious are Osama bin Laden and his network of terrorists. Islamic martyrs love death as you love life, bin Laden tells an interviewer. The Americans are fighting so they can live and enjoy the material things in this life, a Taliban spokesman says, but we are fighting so we can die in the cause of Allah. In a video for his followers, bin Laden intones, The love of this world is wrong.

And there he reaches the crux of the issue. He is wrong. This world is well worth loving. It is right and good for human beings to try to make the most of life on this earth. The Americans are indeed fighting so they can live and enjoy the material things of this life. Not just material things, of course—we fight for such values as love, sex, family, friendship, community, integrity, and courage. But at the root of all these is the love of life in all its wonder and happiness.

One of the biggest complaints modern Americans have about life is how stressed they feel, how they are pulled in so many directions. Why are we stressed? Not because we have to work longer hours than we used to. Whatever the statisticians may tell us about the hours we work, we know that our grandparents and their grandparents worked harder than we do to achieve a much lower standard of living. How many hours a week would I have to work at their jobs, and in their economy, to afford a small house without air conditioning, radio, television, or a refrigerator? No, the problem today is that capitalism has given us so many options; but who would want to give up all that abundance?

Or all the interestingness? Whatever your interests, the modern world is filled with enough to keep you busy for a lifetime. Every day there’s more news about science, politics, international affairs, sports, entertainment, and so on—not to mention new books, new movies, new music, new religions, even new family and friends. I for one don’t want to die because I want to find out what happens next—in everything from sports to politics to TV soaps to the newest scientific discoveries.

Sadly, the Islamic terrorists are not the only people who see life as a limited blessing. The debates over genetic engineering have brought out our native-born anti-lifers in droves. One of the most-quoted bioethicists of our time, Daniel Callahan of the Hastings Center, says: The worst possible way to resolve [the question of life extension] is to leave it up to individual choice. There is no known social good coming from the conquest of death.

Callahan is a liberal, in the modern welfarist sense. Conservatives such as philosopher Leon Kass, named to head President Bush’s Council on Bioethics, and scholar Francis Fukuyama, a member of the council, sound remarkably similar. In a debate at the Cato Institute, Fukuyama said, The whole effort to defeat death, it seems to me, is a kind of striving that speaks of a kind of serious lack of a certain kind of moral perspective. A certain kind, perhaps.

Kass writes, The finitude of human life is a blessing for every human individual. In a speech in Jerusalem two years ago, he complained that Jewish scholars nearly always come down strongly in favor of medical progress and on the side of life—more life, stronger life, new life. He objects to their making victory over mortality the goal of medical science. This Jewish attitude has also been noticed in the Middle East, where Hamas leader Ismail Haniya says that Jews love life more than any other people, and they prefer not to die.

And then there are the environmental extremists, who think there’s just too much human life on earth. Jacques Cousteau told the UNESCO Courier in 1991, In order to stabilize world populations, we must eliminate 350,000 people per day. Earth First! founder Dave Foreman writes, We humans have become a disease, the humanpox. Celebrated young novelist William T. Vollman says, I would say there are too many people in the world and maybe something like AIDS or something like war may be a good thing on that level.

There are many ways to divide people according to their political beliefs—communist and anti-communist, liberal and conservative, libertarian and statist, reactionary and modernist, and so on. But the issue of whether you celebrate life on this earth and want to extend it or think that the conquest of death lacks any value seems a good place to draw a line. With enemies of life in abundance, maybe we need what Hayek called a party of life, a party that favors free growth and spontaneous evolution, a party that appreciates and encourages the enjoyment of life on this earth. And since choice is an essential part of human life, the pro-life party must be pro-choice as well. The Declaration of Independence, which not only declares that governments derive their powers from the consent of the governed but also claims for all people the rights of life, liberty, and the pursuit of happiness, can serve as the party manifesto.

Cato Policy Report, July/August 2002

Rights, Responsibilities, and Community

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

United States Declaration of Independence

A journalist asked me recently what I thought of a a communitarian proposal to suspend for a while the minting of new rights. How many ways, I thought, does that get it wrong? Communitarians seem to see rights as little boxes; when you have too many, the room gets full. In my view, we have only one right—or an infinite number. The one fundamental human right is the right to live your life as you choose, as long as you do not infringe on the equal rights of others. But that one right has infinite implications. As James Wilson, a signer of the Constitution, said in response to a proposal that a Bill of Rights be added to the Constitution, Enumerate all the rights of man! I am sure, sirs, that no gentleman in the late Convention would have attempted such a thing.¹ After all, a person has a right to wear a hat, or not; to marry, or not; to grow beans, or apples, or to open a haberdashery. Indeed, though that right is not recognized in current federal law, a person has a right to buy an orange from a willing seller even though the orange is only 2³/8 inches in diameter.

It is impossible to enumerate a priori all the rights we have; we usually go to the trouble of identifying them only when someone proposes to limit one or another. Treating rights as tangible claims that must be limited in number gets the whole concept wrong.

Rights and Responsibilities

It is certainly true that every right carries with it a correlative responsibility. My right to speak freely implies your responsibility not to interfere with my exercise of that right. Your right to private property implies my responsibility not to steal it, or to force you to use it in the way I demand. In short, the protection of my rights entails my responsibility to respect the rights of others. So why do I feel uncomfortable when I hear communitarians talk about rights and responsibilities? The problem is that there are three senses of the term responsibility that are frequently confused.

First, there are the responsibilities noted above, the obligations that correlate with other people’s rights. Second, there are the responsibilities that some would insist we assume in order to exercise our rights. This sense, frequently found in communitarian writings, echoes the ancien regime approach, the notion of rights as privileges that we retain only so long as we use them responsibly. That idea degrades the American tradition of individualism. It implies that we have our rights only as long as someone—the government, in practice—approves of the way we use them. In fact, as the Declaration of Independence tells us, humans have rights before they enter into governments, which are created for the very purpose of protecting those rights.

People rarely try to take away our rights when they think we are using them responsibly. No one tries to censor popular, mainstream speech; rather, it is obscene or radical speech that is frequently threatened. We must defend even the irresponsible use of rights because they are rights and not privileges. To paraphrase the moving words of Martin Niemoller in a modern American context: They came first for the pornographers, and I didn’t speak up because I wasn’t a pornographer. Then they came for the drug dealers, and I didn’t speak up because I wasn’t a drug dealer. Then they came for the insider traders, and I didn’t speak up because I wasn’t an insider trader. Then they came for the Branch Davidians, and I didn’t speak up because I was a mainstream Protestant. Then they came for me, and by that time no one was left to speak up.² Governments will never begin by taking away the rights of average citizens and taxpayers. But by establishing legal precedents in attacks on the rights of despised groups, governments lay the groundwork for the narrowing of everyone’s rights.

Third, there are the moral responsibilities that we have outside the realm of rights. The Communitarian Platform claims that