… a faux-libertarian like Will Wilkinson (see this, for example), takes lengthy issue with a commentary by Andrew Hyman. The commentary was sparked by George Will’s use of an argument advanced by Sandefur to the effect that the Declaration of Independence is the “conscience” of the Constitution; that is, it explicates the liberty that the Constitution, supposedly, was meant to perfect.
I am unpersuaded by Sandefur’s legalistic jitterbugging. I am especially unpersuaded by a point, fundamental to Sandefur’s worldview, that he makes (for the umpteenth time) in the his final paragraph:
The most basic premise of the entire American experiment is that truly fundamental matters are not subject to the dictate of either a single king or a majority, but are rather dictated by “the laws of nature and of nature’s god.” That is to say, our rights are inherent in us because of our humanity, and are to be discovered by and respected by the executive, legislative, and judicial branches–not decided by them.
This is utter romantic hogwash. As I say in a long-ago post about Sandefur’s “conscience” thesis,
[t]he Declaration and Constitution are not libertarian manifestos — as Sandefur, in effect, characterizes them [here]. Despite the rhetoric about “We the People,” “inalienable rights,” “liberty,” and the rest of it, the Declaration and Constitution are about who governs, and about the division of rights and powers between “the people” and government.
The essential problem with Sandefur’s analysis lies in his Manichean approach to rights. In his view, they are either inherent in individual persons or they are granted by government. (He denies the second possibility, of course.) There is a third way… The third way is hinted at in the paper by Randy Barnett, “A Law Professor’s Guide to Natural Law and Natural Rights,” to which Sandefur links: “natural rights…. describe how others ought to act towards rights-holders.”
In other words, the thing (for want of a better word) that arises from human nature is not a set of rights that each person “owns”; rather, it is an inclination or imperative to treat others as if they have rights. This idea of being inclined (or compelled) to “act toward” is more plausible than idea that “natural rights” inhere in their holders. It is so because “act toward” suggests that we (most of us) learn that it is a good thing to leave others alone as long as they do no harm to us or mean no harm to us. That is a much more plausible explanation of rights than the claim that rights inhere in individuals as rights-holders.
Given the more plausible view that rights are a matter of “acting toward” others, it should be evident — to all but romanticists of Sandefur’s ilk — that rights are not a priori (“inherent”) but arise from interpersonal bargaining (at best) and governmental edicts (at worst). It cannot be otherwise, for even if human beings are wired to leave others alone as they are left alone, it is evident that they are not wired exclusively in that way. Thus claims about “natural rights” are not only foolish but futile. Rights, inescapably, are a matter of persuasion (at best) and power (at worst, unless the power happens to be on the “right” side).
(See also “Evolution, Human Nature, and ‘Natural Rights’” (in which I take Sandefur head-on), “The Golden Rule as Beneficial Learning“, “Human Nature, Liberty, and Rationalism“, “The Futile Search for ‘Natural Rights’“, and “Natural Law and Natural Rights Revisited“.)