Individual Rights: The Crumbling Foundation of American Government
OCTOBER 01, 1991 by ROBERT HIGGS
Robert Higgs is the Thomas F. Gleed Professor in the AIbers School of Business and Economics and Director, Center for the Study of SociaI Dynamics, Seattle University.
Almost everyone recognizes that government can perpetrate great evils. One has only to think of the regimes of Stalin, Hitler, and Pol Pot, three of the most hideous examples. But government is also widely regarded as a potential source of great good. Even Ludwig von Mises, an archenemy of statism, declared that government is “the most necessary and beneficial institution, as without it no lasting social cooperation and no civilization could be developed and preserved.”1 How can people enjoy the benefits of government while avoiding the dangers? Upon what principles must a tolerable government be built?
The Nature of Government
When we say the word “government,” we may mean various things. Sometimes we refer to certain institutions, the established rules and proceedings by which the body politic is ordered and incorporated into the making and maintaining of collective arrangements for social life. At other times we refer to the particular persons who wield established authority over the citizenry. The two meanings are connected. Government as rulers operates according to government as institutions, which people often call “the system.” This connection holds whether the type of government be dictatorship, oligarchy, monarchy, or representative democracy.
Governments have existed for thousands of years. Philosophers have argued that they are either natural—it would be inconceivable that humankind not have them—or that people without a government would be, in Thomas Hobbes’s words, so “few, fierce, short-lived, poor, nasty, and deprived of all that pleasure and beauty of life, which peace and society are wont to bring with them,” that no one would want to be without a government.2 In Hobbes’ estimation, it would be a good bargain for individuals to surrender all their freedom of action to a ruler in exchange for a modicum of peace and social order.
A government, by definition, claims a monopoly of legitimate coercion within its jurisdiction. Every government, ultimately if not immediately, relies on physical violence to enforce its rule. If it cannot do so effectively, it probably will be replaced by another government that can. Hence it is entirely natural that governments maintain police, prisons, and armed forces, whereas General Motors, Exxon, and IBM do not. People sometimes talk about “economic power” as if it were comparable with governmental power. It isn’t.
Every government recognizes that people will obey orders more readily if they believe the orders are proper and, in some sense, in the best interests of the ruled as well as the rulers. Historically, a close linkage of the warrior class and the priesthood has characterized most societies. The blessing of religion has given many governments a more effective claim to obedience. Whether by appeal to religion or by appeal to secular principles of right or virtue, governments always try to legitimate their actions. This striving after legitimation is the principal difference between governments and mere criminal gangs.
Whether government really is necessary (and a few of us still consider the question open to debate), once a society has a government, the potential exists for rulers to abuse their power by pursuing their own ends rather than those cherished by the people they rule. Unchecked government can give rise to tyranny. Accordingly, many lovers of liberty have called government a necessary evil: necessary because they see no alternative institution to maintain peace and domestic order, and evil because the rulers, by virtue of their exclusive control of legitimate coercion, may over-extend their powers at the expense of the well-being and liberties of the ruled.
The men who founded the United States were, in the eyes of the established British government, outlaws—traitors, thieves, and murderers. Americans nowadays so venerate the memory of Jefferson, Madison, Washington, Hamilton, Adams, Franklin, and the other Founding Fathers that we easily forget the raw reality of what they undertook to do between 1775 and 1783. They armed themselves, laid claim to authority denied them by established law, and set out to overthrow the established government by killing the men who defended it.
They were not murderers by profession. Indeed, they probably were the most thoughtful, best educated, and most articulate band of outlaws in history. When they decided to take up arms to overthrow the government, they debated their cause at length, and they wrote down in various places their reasons for resorting to killing other human beings, their justification for actions they ordinarily would have strongly condemned. How did they justify their actions?
They claimed that they, in common with all men, had rights, and that in the existing circumstances they could effectively defend their rights only by violence. In 1774 the First Continental Congress made a declaration of what its members called “their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent . . . .” They claimed that they were “entitled to life, liberty, and property . . . .”
Where did the asserted rights come from? They said that they held the rights “by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts” establishing the British colonies in North America.3 Again and again the rebels justified their cause by claiming a right to liberty. They insisted that the legitimacy of government required the consent of the governed.
The Continental Congress’s “Declaration of the Causes and Necessity of Taking Up Arms,” issued July 6, 1775, declared that “a reverence for our great Creator, principles of humanity, and the dictates of common sense, must convince all those who reflect upon the subject, that government was instituted to promote the welfare of mankind, and ought to be administered for the attainment of that end . . . . Honour, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors . . . . The arms we have been compelled by our enemies to assume, we will . . . employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves. [And finally] in defence of the freedom that is our birth-right, and . . . for the protection of our property, . . . we have taken up arms.”4
Then, in 1776, the Continental Congress issued a Declaration of Independence. Here is the justification the rebels gave for their actions:
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, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The Declaration continued by explaining that the rebels had not rashly taken up arms against the established government:
Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
The Declaration went on to present a lengthy list of grievances against the King, including the complaint that he had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”
During the Revolutionary era, individual states enacted bills of rights. The Virginia Bill (1776), almost entirely drafted by George Mason, began, “all men are by nature equally free and independent, and have certain inherent fights . . . .”5
The Massachusetts Bill (1778), written almost entirely by John Adams, began, “all men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.” Article seven of the Massachusetts Bill of Rights declared: “Government is instituted for the common good . . . and not for the profit, honor or private interest of any one man, family, or class of men . . . .” And Article 10 read: “Each individual of the society has a fight to be protected by it in the enjoyment of his life, liberty, and property . . . . No part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people . . . . And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.”6
Later, in the national Bill of Rights, the 10 amendments to the United States Constitution ratified in 1791, many of the rights proclaimed by the individual states in the 1770s became part of the entire country’s supreme law. Later still, in the 14th Amendment, added to the Constitution in 1868, each state was forbidden to “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Clearly, government in the United States was founded on an explicit recognition of rights—nat; ural, inalienable rights of each individual—and governments were understood to be legitimate only insofar as they acted to protect those lights. Individuals and their rights were regarded as morally prior to government and its mandates; governments were to serve the people, not the people the government. Government was justifiable only as an instrument of the governed. When governments proved abusive of their powers, when they destroyed rather than protected the natural rights of individuals, the people had a right to defend their rights and to overturn the government that threatened them.
Current Suppression of Rights
Comparing the ideology of the Founders with the currently dominant ideology, we encounter a stark contrast: on the one hand, the deep regard that the Revolutionary ideals expressed for individual rights; on the other hand, the rampant disregard for individual rights with which the present governments of the United States—federal, state, and local—conduct themselves and justify their actions. To make matters worse, not only do most Americans not recognize that their governments massively invade rather than protect their rights; most Americans actually talk as if they live in a free society.
Many people remain unaware of the extent to which government controls a vast range of human conduct in our society because they are not themselves on the receiving end of many of the particular forms of control. If you are not an automobile designer, you may not be aware that the government prescribes many requirements that all automobiles must meet. If you are not a real estate developer, you may not be aware of the multitude of government permits that must be acquired before you may commence building, and of the plethora of regulations that constrain how you may build. If you are not a pharmaceutical manufacturer, you may not be aware of the long process of testing and certification that must be endured before the government will permit you to sell your product. If you are not an importer or exporter, you may not be aware of the many controls and paperwork requirements that impede your business. If you are not a personnel or payroll officer, you may not be aware of the huge number of requirements you must meet with respect to collecting taxes and providing benefits to employees, and with respect to the makeup of your work force as regards race, sex, and other criteria. If you are not a dealer in stocks and bonds, you may not be aware that acting on the basis of certain information, which the government considers “inside information,” may land you in jail. If you do not have complicated business or financial dealings, you may not be aware of how extensively you must give an account of your affairs to the tax authorities. If you are not a business person, you may not be aware that any number of seemingly proper and mutually beneficial business arrangements may cause you to be charged with violating the antitrust laws. And so on and so on, endlessly.
But even an ordinary person unavoidably runs up against government controls every day. Perhaps you wake up when your clock radio comes on, bringing you signals transmitted by a radio station permitted to operate only after being granted a license by the Federal Communications Commission. You get dressed, putting on clothing and shoes that cost you more than they would have if the United States government had not restricted the importation of clothing, textiles, and footwear. You drive to work in a car constructed in accordance with a variety of government regulations; or you ride the bus, paying a fare established by a government regulatory commission. You work or go to school with people who have been selected in part on the basis of governmentally prescribed rules and quotas regarding race, sex, ethnicity, handicap, or veteran status. You eat lunch at a care that is allowed to operate only after acquiring various permits. You make telephone calls and pay for them at a rate set by a public utility commission. You go home to sit down to an entree of meat sold only after mandatory inspection by the Department of Agriculture. What you paid for the food reflects the price supports on farm products and the restrictions on the importation of farm products into the United States. In the evening you turn on the television, watching a program broadcast by a station licensed by the Federal Communications Commission. Just before turning in for the night, you may take some medicine that you could legally purchase only by prescription and which can be sold to you only because it has been approved by the Food and Drug Administration. Yours has been an uneventful day, yet you have moved at every moment within a web woven by government.
How the United States evolved from a nation that held individual rights in high esteem (at least as ideals, if never consistently in practice) into a collectivist regime in which individual rights are subjugated in countless distinct ways every hour of every day is a long and complicated story—in many respects, it is the whole story of American society during the past 200 years. Not that liberty diminished at every place and time. The emancipation of the slaves, for example, was a triumph of liberty against which anything else in our history pales. But that was an anomaly, just as the existence of slavery had been an anomaly in the early days of the Republic. In most respects the trend, sometimes quicker, sometimes slower, was relentlessly toward a less and less free society. The pace of the movement accelerated during the past 75 years; it shows no sign of slowing now. Each day Americans become a little less free.
The tragedy is that most neither know nor care. Like George Orwell’s character in 1984, who inhabited a world in which the official language held that war was peace and slavery was freedom, most Americans have actually learned to love Big Brother. Indeed, they spend much of their time actively seeking, or supporting the efforts of those who seek, to extend the grip of government over the whole of human affairs. Nothing is too inti mate or too personal or too important to be left for free individuals to decide: not the education of young people, not the care of children or the sick, not even vital decisions involving life and death—nothing escapes the tentacles of government.
Lovers of liberty watch in horror as their fellow citizens stitch new and unnatural organs Onto the Frankenstein monster. One marvels that they can take these actions in the name of “doing good,” “being fair,” “promoting prosperity, . . . . maintaining national security,” and a variety of other noble-sounding purposes. Perhaps in some cases they know what they are doing and have simply decided that the loss of liberty entailed by the new government power they support is an acceptable price to pay for the prospective benefit they anticipate—especially when they expect only other people’s liberty to be diminished. In many cases, though, they surely act with no awareness that the new government program entails a further throttling of human liberty, an overriding of individual rights.
In 1991, according to official sources, Federal bureaus alone—not to mention the 50 states, more than 3,000 counties, and scores of thousands of cities, townships, and other government units, all imposing restraints on individual action—will propose or make final the issuance of 4,675 new rules.7 Those are new rules. When added to all the existing rules, laws, ordinances, regulations, decrees, injunctions, orders, requirements, prohibitions, and other official directives, they make up a heap of coercive measures so enormous that not even an army of lawyers can hope to grasp them all, and tax accountants throw up their hands in exasperation.
To carry out their thousands of projects, the governments of the United States take at gunpoint—remember, payment of taxes is not a voluntary contribution—a sum of money beyond human comprehension, currently about $2 trillion. Question: How far would total government revenues, put into the form of a string of two trillion dollar bills, reach? Answer: It would stretch from the earth to the sun and back, leaving enough of the string to wrap around the earth about 167 times. And this illustrates just this year’s government revenues. Watch out for next year!
Remember the American colonists’ complaints about taxation without representation? Well, they paid at most a few percent, probably no more than 3 percent, of their annual incomes in taxes. Americans now pay about 36 percent of their vastly larger incomes to their governments. Much of this huge revenue amounts to taking from Peter to pay Paul, then taking from Paul to pay Peter—in order to be fair. Along the way, government officials and bureaucrats take a hefty broker’s commission on each transaction. Fully one worker in seven is on the government payroll. Vast numbers of others, supposedly in the “private sector,” also work for the government, because they do what they do only because of government spending, taxing, and regulating.
So utterly devoid of principle is the current activity of U.S. governments that no project whatsoever is too silly to exclude from the trough. Recall the scandal involving the hundreds of thousands of dollars recently appropriated to fix up the boyhood home of Lawrence Welk somewhere in the lost reaches of the Dakotas. (The appropriation was repealed when the news media publicized it heavily, but rarely does anyone take much notice of the equally outrageous appropriations that lard the budget.) You probably haven’t heard of the $566 million appropriated to fly cows to Europe, supposedly to promote exports. Or the $107,000 to study the mating habits of the Japanese quail. Remember, every dollar is taken from you or someone else at gunpoint. Would you put a gun to someone’s head to get money for studying the Japanese quail?
There’s much more, including the $2.8 million for a fish farm in Stuttgart, Arkansas; the $1.3 million for repairs to a privately owned dam in South Carolina; the $500,000 for the 1992 American Flora Exposition; and the $49 million for a rock-and-roll museum. Consider next the $500,000 to revitalize downtown Ada, Oklahoma—not a place many Americans are likely to visit—and the $772,000 to construct a skeet shooting club at Tinker Air Force Base. After all, one never knows when the Russians will attack with clay pigeons. There is also $375,000 to renovate the House of Representatives beauty parlor; plus $98 million for Congressional mall no one wants to receive, hyping the virtues of your local member of Congress; and $1.5 million to spruce up a military golf course. (Is this what the framers of the Constitution had in mind by the phrase “provide for the common defense”?) There’s $7 million to study air pollution-in Mexico City—and $1 million for the bicycle transportation demonstration project in Macomb County, Michigan. And the list goes on and on and on.8
One could continue indefinitely just listing one-line descriptions of ludicrous government projects, which in many cases have no real value to anyone except those paid to carry them out. Rarely does the budget contain the only kind of projects contemplated by the founders of the nation, namely, those of common benefit (that is, of benefit to everyone) that are also within the powers enumerated in the Constitution as allowable government actions.
Needless to say, constitutional limits on government action fell by the wayside years ago. Where economic interventions are concerned, the federal government received the blessing of the Supreme Court, in a series of cases between 1937 and 1942, to do virtually anything authorized by Congress.9 Given that green light, members of Congress proved time and again that no scheme to buy votes was too outrageous to refuse. Anyone who thinks that taxes must be raised to cut the federal government’s deficit, because spending already has been cut to the bone, should spend some time reading the budget documents.
Democracy Versus Rights
Of course, we’ve been told since childhood that all of this is just the workings of “democracy,” as if taking a vote could decide the wisdom or morality of an action. The central purpose of the Constitution in the first place was to put limits on the actions of political representatives. A majority vote can do nothing to justify an action. The majority vote of the people or the Congress can no more justify a political action than the majority vote of a gang can justify an assault.
Majority voting is simply a decision rule for selecting the actions that will be taken from the set of all permissible actions. Through the years the mantra of “democracy” has been chanted over the most morally offensive actions of American governments, as if majority voting can make everything okay. It cannot. When governments override the rights of individuals, they violate their only raison d’être. Under the banner of democracy, the United States has built an engine of oppression so vast that it is doubtful whether it can ever be substantially reduced, much less dismantled.
Are Rights Justifiable?
Is it possible that I am taking too seriously some 200-year-old rhetoric about human rights, and that I have compounded the blunder by supposing that property rights are among the most fundamental of all human rights? After all, didn’t Jeremy Bentham tell us that the notion of rights is not only nonsense, it is “nonsense on stilts”?
I admit that I am no philosopher and that, if called upon to supply a proof of the existence of human rights, I cannot provide one. Nor am I persuaded by the attempts I’ve seen of philosophers far better prepared than I to give the proof. But as an economist, I am trained to ask certain questions: First, what’s the alternative? Second, after a choice is made, what happens next, and after that, and after that, as repercussions of the initial choice continue to have indirect effects?
Suppose you tell me, there is no such thing as rights; and I reply, okay, let’s agree that there are none. Later, when a mugger accosts you and demands that you surrender your wallet on pain of having your throat slashed, am I supposed to feel that you have been wronged? Of course, you won’t like this event, but the mugger will; it’s just your personal loss against the mugger’s personal gain.
Or suppose you wake up tomorrow morning and discover that a majority vote has been taken, and the majority or its chosen representatives have decided that all people like you—in some respect, it doesn’t matter which—are to report for transportation to concentration camps. Well, that’s democracy in action. Remember what happened to the Japanese-Americans in 1942.
If there are no rights, then we’ll just have to get along without them. But chances are, with no conception of rights, social life will be pretty much as Hobbes thought: brutish and short, et cetera, or else everyone will end up obeying the person who wields the most power at the moment. A society that doesn’t take human rights seriously and protect them will turn out sooner rather than later to be hellish. Apart from whatever one may think about the philosophical status of rights, a world without fights would not meet the aspirations of even the most thoroughgoing utilitarian. So, if one doesn’t care whether people believe in rights, fine; but one must be prepared to suffer the consequences.
We know from history what happens to societies without genuine individual rights. From sweeping powers of government, unconstrained by silly notions that all individuals have fights to life, liberty, and property, come the Soviet Union and its empire, Nazi Germany, Fascist Italy, and Pol Pot’s Cambodia as well as today’s China, Vietnam, Cuba, and a lot of other loathsome societies that merit the full measure of our contempt and sorrow.
In due course we shall arrive at something similar in the United States, for this country is fast proceeding in the direction of subjugating all human rights, especially human rights to property, without which the others eventually will prove more or less worthless. When the government controls everybody’s access to newsprint and broadcasting channels, freedom of the press won~ have any real substance—just consider how shamelessly the news media performed during the recent war, when the government controlled reporters’ access to the theater of war. When the government controls the conditions on which people can obtain or give employment, freedom of speech won’t matter much—who will jeopardize his job by speaking out against the government? When the government controls the manner in which all goods and services must be produced and the terms on which they may be sold, freedom of association won’t be worth much—what good will it do to have a meeting under those conditions? A nation without firm private property rights will eventually prove unable to defend any human rights whatever. Only citizens who have secure private property rights possess a protected, autonomous position from which they can challenge their rulers. Our forefathers understood this well, but most Americans have forgotten.
Property Rights Are Human Rights
Property fights have been slandered throughout most of the 20th century, especially by people who contrast property rights and human rights, and pose a choice between them. Now, faced with such a choice, who wouldn’t opt for human fights—far better to worry about human beings than about sticks and stones. But this way of posing the question is misleading and utterly unacceptable.
All rights are human rights. It is in the very nature of rights, which are morally justifiable claims on the conduct of other persons, that only human beings can possess them. Property rights don’t belong to the factory in which a corporation manufactures its products; they belong to the corporation’s shareholders, the individual human beings who have surrendered other property in voluntary transactions to acquire ownership claims on the factory. A related and equally foolish idea is that government can tax “business” rather than individuals. But bricks and mortar can’t pay taxes; only persons can. “Taxing business” is just another term for taxing certain people differently from others.
Property rights are the human rights to decide how property will be used, to appropriate the income or other benefits of the property, and to transfer the rights of ownership to others in voluntary transactions. Everyone realizes that some degree of property ownership is essential for sustaining human life in society. But many people suppose that once we go beyond personal property such as clothing, furniture, automobiles, perhaps houses, and arrive at “bigger” property such as land, factories, mines, and railroads, private ownership no longer is essential. The supposition is wrong. Suppression of private property rights at any level tends to have socially destructive consequences.
Property rights must be lodged somewhere. Even societies that pretend to have no private rights in “bigger” property simply lodge the rights in the hands of politicians or bureaucrats. Someone, some human being, still decides how the property will be used and who will receive its benefits.
But without private property rights, the link is severed between rational employment of the property and the rewards or punishments of the decision-maker. Irresponsible behavior no longer carries with it an automatic punishment. Politicians or bureaucrats are free to use resources destructively-as they have in socialist economies for decades and as they have in the socialized sectors of the United States such as public education or management of public forests or rangelands or national defense production—and still the decision-makers may thrive.
Private property rights create an incentive to employ resources in their most highly valued uses as determined by consumers. Socialized property arrangements insulate the decision-makers from the preferences of consumers, who invariably suffer, as they have throughout the socialist world since 1917, and as the unfortunate people of those places, some of whom now are free to speak, readily attest.
For Sale: A Precious Birthright
As ever more rules and regulations curtail the decisions individuals may make for themselves, as ever greater proportions of people’s income are siphoned off to be used as our leaders decide, as every species of special interest pays tribute to predatory politicos who suck the marrow from the bones of civil society, individuals are reduced to ever more meaningless atoms in the social cosmos. All of life becomes politicized, which means corrupted by power. And as individual liberty and individual rights die, all that is decent in human society dies with them.
Our Revolutionary forebears complained that King George had “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.” But Jefferson and Madison could not have dreamed, even in their most horrifying nightmares, of the swarms of bureaucrats upon us now, harassing us and eating our substance. The nation’s founders could not have understood how cheaply a wealthy society of their descendants would sell its precious birthright of liberty and justice and respect for individual rights.
No individual, of course, can do much about the state of the nation. But each of us has a mind, and with some effort one can use it to think. The next time you hear of a proposal to employ the government for still another noble purpose, think! Ask yourself: At what cost to individual liberty will this project operate? And how can we preserve our remaining liberties if we give our assent piecemeal to the thousands of new proposals for enlarging and strengthening government that pour forth each year? What will be the end result of these piranha attacks on human rights? And do you want to live in that kind of world?
- Ludwig von Mises, The Ultimate Foundation of Economic Science: An Essay on Method (Kansas City, Kan.: Sheed Andrews and McMeel, 1978), p. 98.
- Thomas Hobbes, Philosophical Rudiments Concerning Government, as reprinted in Hobbes: Selections, edited by Frederick J. E. Woodbridge (New York: Charles Scribner’s Sons, 1930), p. 267.
- “Declaration and Resolves of the First Continental Congress,” in Documents of American History, edited by Henry Steele Commager (New York: Appleton-Century-Crofts, 1948), pp. 83-4.
- “Declaration of the Causes and Necessity of Taking Up Arms,” in Documents, pp. 92-5.
- “The Virginia Bill of Rights, in Documents, p. 103.
- “Massachusetts Bill of Rights,” in Documents, pp. 107-08.
- Unified agenda of Federal regulations, as cited in Robert Pear, “In Bush Presidency, the Regulators Ride Again, The New York Times, April 28, 1991.
- The preceding examples, and many more, appear in a series of stories on Congress in New Dimensions, March 1991, pp. 22-57.
- Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (New York: Oxford University Press, 1987), pp. 180-94.