Rights expansion plays a big role in left-wing policymaking. President Franklin Roosevelt called for a “Second Bill of Rights” in 1944. He hoped to include rights to employment, adequate income, decent housing, adequate medical care, social security, and education. But Roosevelt died the following year, and the Democratic Party abandoned the proposal. Now, Bernie Sanders calls for a 21st Century Economic Bill of Rights that closely mirrors Roosevelt’s proposal. It includes the right to a job that pays a living wage, the right to quality healthcare, the right to a complete education, the right to affordable housing, the right to a clean environment, and the right to a secure retirement. Sanders’s proposed policies—like Medicare-For-All, tuition-free college, and the jobs guarantee—have been designed to help secure these rights.
Conservatives often oppose rights expansion by appealing to natural rights theory. Corporations and the rich—who possess concentrated political power and access to a media that serves them—will also wage a campaign to discredit the idea of these rights. Obtaining them will not be easy. To make a start, we need to anticipate the rhetorical strategies of our opponents. In what follows, I’ll lay out how natural rights theories work, identify some of their weaknesses, and consider alternative frameworks.
For conservatives, rights are not something we can expand or contract, because they are natural or God-given. Natural rights have their roots in natural law theory. Natural law theorists—like Thomas Aquinas—argue that human beings exist for a specific purpose. Drawing on Aristotle, Aquinas argued that it is our purpose to develop our reason, and to use our reason to develop our character, to acquire moral virtues. These virtues—including, most famously, prudence, justice, fortitude, temperance, charity, faith, hope, and love—are meant to enable us to live a good life, in service of traditional institutions, like the family, the state, and the church. They are also meant to help us develop ourselves intellectually and spiritually. Taken together, all of this is meant to make us happy, and a truly happy life ends in a full view of God in the afterlife. This, for Aquinas, is our ultimate end, and we are morally obligated to fulfill it. Any human law which conflicts with this purpose conflicts with our nature and is therefore potentially “unnatural.”
But how do we know what gets in the way of happiness and spiritual fulfillment? Natural law theorists try to answer this question by observing human behavior. If the law asks people to behave in a way which sharply conflicts with our natural behavior, the law can be said to make unrealistic, unnatural demands—and presumably ought to be rejected.
Take the case of humans and food. Everybody needs to eat to survive, and everybody needs to survive to develop their reason and character. In this sense, we might be said to have a “natural right” to the food we need to survive. But food is not just handed out in our society (although it could be), so we must pay for it. Those who do not have money to pay for food may consider stealing the food. If you can only survive by stealing, it’s unrealistic to expect you not to steal. Therefore, if the government passes a law prohibiting the poor from stealing food to survive, the government asks people to behave in a way that is unrealistic. If human laws conflict with the natural right to food, the right of nature may entitle us to break the law. Aquinas himself argued that it’s okay to steal in cases of extreme need:
It is not theft, properly speaking, to take secretly and use another’s property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need.
The trouble is that human behavior varies across contexts, and natural law theorists tend to naturalize whatever they see around them. In Aristotle’s time, slavery was common and women were widely denied political rights. Aristotle observed this and concluded that slavery was natural and that women were naturally inferior to men. Obedient slaves and hard-working spouses make free time for men, enabling them to do philosophy. Without them, men might be less able to develop their reason and acquire the virtues. For Aristotle, laws that abolish slavery or enfranchise women would conflict with the ability of men to realize their purpose. A free man might even have a natural right to own slaves and dominate his spouse.
Things can get disturbing very quickly. To make matters worse, it’s hard to get everyone to agree on what human nature is. The Catholic Church made Thomas Aquinas a saint, and helped spread his views about what was “natural” throughout Western Europe. But as Protestants and humanists challenged the church, new debates sprung up about what counts as natural. Thomas Hobbes argued that it’s natural for us to try to kill other people if there’s no king around to intimidate us. David Hume argued that it’s natural for us to steal from strangers to give to our family and friends—unless somebody stops us. Immanuel Kant argued that it’s natural for us to submit ourselves to a universal moral law. Jeremy Bentham argued that it’s natural for us to pursue pleasure and avoid pain.
As the debate about what’s natural got more intense, it became harder and harder to use natural laws and natural rights politically. Political theorists increasingly abandoned the natural law tradition. Bentham dismissed natural rights as “anarchical fallacies” and “nonsense upon stilts.” When conservatives criticize the Enlightenment, they criticize it in part because they feel that Enlightenment theorists badly butchered the concept of the natural. Many conservative theorists have deep affection for Thomas Aquinas and want us to start the conversation over, returning to his theory as a jumping off point. But the concept of the “natural” was too vague to begin with. It was too easy to redefine, and that made it too hard to establish a consensus on what it meant, even when the Catholic Church was ready and able to defend its ideas. Today, the splintering of Christianity into large numbers of denominations and the rise of secularism makes that consensus completely impossible.
In any case, the enforcement of a religious consensus cuts against Aquinas’s own argument. Aquinas is the one who argued that it’s natural for us to develop our reason. If we don’t have the liberty to use our reason to dispute what the natural means, we are being prevented from fulfilling our natural purpose as Aquinas understood it. A consensus on the natural can only be enforced by unnaturally restricting the development of human reason, and therefore Thomist natural rights theory can only be politically instantiated by systematically violating it.
Increasingly, political theorists moved away from the language of “natural rights” toward a language of “human rights.” But this is a sleight of hand; human rights are themselves a spinoff of natural law theory. Human rights are grounded on international law, and the first theories of international law grounded international law on natural law. Dutch philosopher Hugo Grotius argued that states that violate natural law forfeit their claims to sovereignty. This quickly developed into a convenient moral justification for colonialism. Grotius argued that human beings are entitled by nature to seize uncultivated land. Many Indigenous peoples were hunter-gatherers, or used farming techniques that Europeans considered primitive or inefficient. For Grotius, these peoples had no right to keep lands they were not efficiently farming, and the Europeans had a natural right to take these lands away from them. It’s ironic, isn’t it? The idea of the natural so easily allows some people to do things other people consider to be unnatural. Many of the practices that strike most of us as deeply unnatural—like slavery and imperialism—were excused with the help of natural rights arguments.
It is difficult to find an alternative basis for international law, and therefore an alternative basis for human rights. If human rights come from being human, that implies that there must be something in particular that is fundamental about the human experience. How can we have human rights without a theory of human nature? And once we try to define human nature, we’re back in the same old definitions swamp. We can’t agree on what human nature is, and therefore we can’t agree on which rights are specific to the human experience.
The ambiguity of the concept of human nature allows powerful vested interests to dictate the definition of human nature for the purposes of determining the content of human rights laws. The Universal Declaration of Human Rights was written in 1948, at the peak of American power, and it reflects mid-20th century American liberal values. It does not include most of the economic rights Bernie Sanders lays out, and those that are included are heavily watered down. There’s a right to work, but no right to a job. There’s a right to an “adequate standard of living,” but no detail about what counts as “adequate” housing or healthcare. The right to education extends only to the “elementary and fundamental stages.” There is no mention of retirement, just a fleeting reference to “security”“in the event of “old age.” There is no discussion of the environment, or even of access to clean air and water. By contrast, the right to own property is explicitly protected, and the family is declared “the natural and fundamental group unit of society.”
Just as Grotius’s arguments were used to justify colonialism, contemporary human rights law is frequently used to justify American military interventions in post-colonial countries. Unsurprisingly, many post-colonial governments understandably feel that the system of international law lacks democratic legitimacy. The UN Charter was signed in 1945, a month after the end of World War II. It structured international power in a deeply unbalanced way. The UN General Assembly—which includes all the member states—can only issue non-binding resolutions. Only the UN Security Council can issue binding resolutions, and the permanent members of the Security Council have the power to veto any resolution they dislike. The permanent members are the countries that were most powerful at the end of the war: the United States, UK, France, China, and the Soviet Union. Post-colonial states enjoy a majority in the General Assembly, but they can only pass resolutions through the Security Council, where their old colonial masters exercise veto power. A few years before he was deposed and murdered in a U.S.-led intervention, Libyan leader Muammar Gaddafi expressed the resentment felt by so many people in post-colonial states:
We are not committed to obeying the rules or the resolutions of the United Nations Security Council in its present form because it is undemocratic, dictatorial and unjust. No one can force us to join the Security Council or to obey or comply with resolutions or orders given by the Security Council in its present composition. Furthermore, there is no respect for the United Nations and no regard for the General Assembly, which is actually the true United Nations, but whose resolutions are non-binding. The decisions of the International Court of Justice, the international judicial body, take aim only at small countries and Third World nations. Powerful countries escape the notice of the Court. Or, if judicial decisions are taken against these powerful countries, they are not enforced.
There are, then, three key issues with natural and human rights:
- Natural and human rights require a definition of human nature, but it is hard to establish a consensus on the definition of human nature.
- It is easy to define human nature in a manner that enables the powerful to dominate the weak. Aristotle used it to justify slavery, Grotius used it to justify colonialism, and Western governments use the human rights discourse that developed out of it to justify regime change.
- Given #1 and #2, the powerful will tend to define human nature and human rights in convenient ways that facilitate their continued domination of those who are weaker.
Therefore, we need a different way of substantiating rights that is harder to abuse.
We might instead argue that what really secures rights is not some universal theory of human nature, but the fact that those rights have been instantiated through a legitimate political process. When Bernie Sanders proposes these new economic rights, he doesn’t need to argue that they are universal, fundamental rights that apply to all people in all places. He can instead argue that, as citizens of a democracy, we can and should use our democratic political institutions to create new rights for ourselves. Bernie Sanders does not have to revise the definition of human nature—he can encourage us to revise what it means to be an American. He can ask us to use our power as Americans to increase the set of rights we as Americans enjoy. His rights are civil rights, rights that would shape the fundamental character of being American.
Good Americans need to be able to participate in civil society organizations. They need to be able to participate in democratic political institutions. Participation in civic life, however, requires a basic level of economic security. When people don’t enjoy these basic economic rights—like the right to a good-paying job, to food, to housing, and so forth—they have to spend too much of their time and energy desperately treading water (in the case of many Americans, working multiple jobs to make ends meet). Treading water means less time and energy to participate in things outside of one’s immediate life. It’s hard to think about the common good when you have to worry that you might lose your home or your access to quality healthcare. Even when Americans do participate in politics, they participate from a place of fear and anxiety. Politicians and the media easily play on these feelings, and it becomes easy to encourage Americans to blame and fear one another. They vote for “lesser evil” candidates, for candidates who promise to protect them.
Centrists worry constantly about polarization, a lack of civility, and a collapse of democratic norms. Well, Americans are scared because we lack security. We’re upset because we’re worried about our future. In an era of free markets and free trade, we’ve been plunged into a competitive global economy and forced to work longer hours for lower wages as the costs of healthcare, housing, and education skyrocket. We’re worried about paying the bills, about paying our debts, about a world where technology advances while ordinary people are left behind. Increasingly, it’s hard to be civil to each other without economic civil rights. People are under too much stress. If centrists want civility, they need to relieve the economic stressors that drive so many to frustration and despair.
We can argue for economic civil rights even if we disagree strongly with one another about human nature. Whatever you think the purpose of life is, it should be compatible with ensuring each and every American citizen is in an economic position that allows them to effectively exercise their citizenship. What’s more, economic civil rights make it easier for people to do a lot of other things. If you agree with Aquinas and think the purpose of life is the cultivation of reason and virtue, it’s a lot easier to do those things if you’re economically secure. You can’t study philosophy or religion or participate in civil society if you have to spend all of your time desperately trying to get by. Many ancient and medieval writers politically excluded the poor precisely because they did not feel the poor were in a strong enough economic position to participate effectively in public life. These economic rights directly address that traditionally conservative concern. Insofar as conservatives value democracy, economic rights make democracy work better.
Objections to Civil Rights
Some people don’t like civil rights because they apply specifically to Americans. They argue that by tying these rights to being American instead of our common human nature, we are implicitly denying them to non-Americans. But there is currently no set of legitimate political institutions that can democratically instantiate rights at the global level. The global institutions constructed after World War II marginalized the citizens of poorer, weaker countries. These institutions have no direct democratic connection to ordinary people. Even people living in rich countries often feel alienated from the United Nations, the International Monetary Fund, the World Bank, and the World Trade Organization. These institutions don’t consult ordinary people about anything. The people who run them are drawn overwhelmingly from the upper classes of the richest states. They simply do not have the political legitimacy necessary to effectively determine what rights poor and working people should or shouldn’t have. To instantiate economic rights at a global level, we’d need an entirely new set of institutions.
Instead of trying to foist a 20th century liberal worldview on the world’s people through a slanted conception of human rights, we might try offering American citizenship to people we feel have been wrongfully excluded from its benefits. I’ve previously written for Current Affairs about how we might incorporate people who have been excluded from citizenship. It has to be done carefully, but it can be done.
Other people don’t like civil rights because there’s no guarantee that they won’t be repealed. Natural rights and human rights are thought to be timeless (even though no one agrees on their content, and in practice international organizations and powerful states decide what they mean). By contrast, proponents of civil rights openly acknowledge that rights only last as long as the civil institutions that enacted them continue to back them up. It is true that civil rights are subject to politics and can always be revised by political means, but this cuts both ways. When rights are considered timeless, they are politically hard to repeal, but they are also politically hard to expand. By acknowledging that rights are civil, we leave open the possibility that in the future, Americans may decide that they need even stronger rights than we can presently imagine. American civil rights belong to Americans, and it is up to us to decide what they mean. If we prevent future generations of American citizens from having the chance to revise the set of rights associated with being American, we prevent them from exercising their rights as Americans.
It would be wrong to dominate future generations in this way, just as it is wrong for us to allow previous generations to prevent us from expanding our rights. The Supreme Court often gets in the way of rights expansion. Constitutionalists and originalists leave us trapped in the political concepts they associate with the founding. For Justice Samuel Alito, we only have the rights explicitly enumerated in the constitution, those that are “deeply rooted in this nation’s history and tradition,” or those that are “implicit in the concept of ordered liberty.” Every generation should have the opportunity to contribute to the development of the political concepts that constitute the society it has to live in. President Roosevelt considered using the amendment mechanism to force the judiciary to accept the validity of economic rights. If we can build broad enough support for these rights by addressing working people in both red states and blue states, we might be able to use the justices’ commitment to the amendment mechanism to our advantage.
For some conservatives, the dynamic character of civil rights is a problem. If civil rights remain open to redefinition, could Sanders’s economic rights be a slippery slope? But the idea that rights can be grounded on a political process rather than a single theory of human nature is not especially radical. The Republican Party is itself named for republicanism, a political tradition rooted in the idea that being a member of a polity and exercising the rights associated with political membership is an important part of life. Aristotle advanced a concept of human nature, but he also argued that we are political animals, and that a citizen is “one who has the right to participate in deliberative or judicial office.” We should ask conservatives whether they really feel a person who doesn’t enjoy Sanders’s economic rights can participate effectively in public deliberations. What kind of republicans would they be, if they leave these citizens out in the cold? If Americans are to have the time and energy to do politics, and the peace of mind necessary to do it well, they need, at the very least, the right to quality healthcare, the right to a complete education, the right to affordable housing, the right to a clean environment, and the right to a secure retirement. If we do not fight for these rights and see them granted, political discourse will become steadily more debased. Fear and anxiety will continue to spread and intensify, until Americans are driven to despair. Can democracy run on despair? Do we really want to find out?