What is a right? Where do rights come from? On what do they depend? Is there a hierarchy of rights? What obligations do one person’s rights place upon the larger society?
I am asking these questions because of the use of rights language being made in public discourse about health care. To be honest, I find the application of rights language in regard to health care troubling for several reasons, even though I am inclined to think that some kind of basic health care is legitimately thought of as a right. If I sound conflicted — well, I am.
Here is the problem as I see it. In this country, rights language is enshrined in our foundational documents and serves a very specific purpose: to limit the power of the government.
From the Declaration of Independence:
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 point of the mention of rights in this document was specifically to draw a line between what belonged to man as man, given him by his Creator and what belonged to man that was contingent upon some condition, including some form of government. The point of government, according to this, is to secure life, liberty and the pursuit of happiness. This document gives the reason for the existence of our government, while the Constitution outlines the form that a government existing for that reason ought to take. Hence rights language, as it appears in the Constitution, is directed toward limiting the power of the state over the person, and the power of the federal government over the several states.
But the right of others also restrains persons and every right creates concomitant obligations. If others have the right to liberty, then I as a citizen am restrained from unduly restricting their liberty. I become obligated to tolerate actions by my fellow citizens that may displease me because while my fellow citizen has a right to liberty, I do not have a right not to be displeased. If, due to my displeasure, I attempt to restrict the liberty of my fellow citizen, the government acts to secure his right.
In a great many areas of life, this delicate equilibrium between rights and mutual obligations and the role of the state has been tested and retested. Freedom of speech, freedom of religion, right of trial by jury, right of redress — these are all areas in which there is a huge body of case law that spells out the what limits, if any, the state may place upon each right. Extrapolating from these rulings, one can locate one’s obligations as a citizen — we are all mutually obligated to tolerate many things that may not please us in order that our government function so as to secure the rights of all. In order for the government to function at all, of course, it has to have the authority to levy taxes and other authorities all based ultimately on a coercive power that is justifiable only, according to our founders, in order to secure our rights.
Things change though when the “rights” under consideration become, not merely what one has the power to do — such as speak freely, assemble with others, vote, worship as one sees fit — but become rights to have something, such as “affordable housing” or “affordable health care”. Do all people have a right to affordable housing? Does their right to affordable housing trump my right to set a rent price on my property that the market will bear? What if they cannot afford to pay enough to cover the expenses of my ownership of that property? Do all people have the right to affordable health care? Do we mean by that that everyone must have access to the same level of care regardless of ability to pay? What obligations will become incumbent upon us and what limitations on other rights will the rest of us incur once we accept this premise?
It seems apparent that rights language in such contexts — discussing what concrete goods one has a right to, as opposed merely to what one has a right to do — fundamentally alters the role that “rights” historically played in the political thought of our nation. Rather than limiting governmental power, this rights language greatly expands it and seems to change the motivation of the coercive power of the state.
Do we perhaps need some other language to talk about this other than the language of “rights”? And if so, what is it?