RALEIGH – Pardon the philosophical digression, in a space usually devoted to current affairs and state politics, but a couple of articles in North Carolina newspapers prompted me to think about the distinction between natural rights and civil rights – and the extent to which the distinction is both important and ignored.
In an otherwise-praiseworthy March 17 editorial defending openness in government, the Hickory Daily Record stated that “open government is an inalienable right that existed from the beginning of time.” This statement has the unfortunate disability of being false on multiple grounds.
For starters, “open government” could not have existed from the beginning of time, for the obvious reason that government has not existed so long. I’m not meaning to quibble here. Presumably the editorial writer didn’t really mean “the beginning of time,” unless he meant that there were public-records laws in Heaven (for the creationists in the audience) or that all mutations of DNA have occurred under the jurisdiction of open-meetings laws (for the evolutionists). What he no doubt meant was since “the beginning of human history.” That doesn’t work either, though. Governments in the modern sense (that is, not just rule of a small clan by a paternal or maternal authority) don’t have that long a history.
The Nobel Laureate Douglass North provided a fascinating and learned history of government forms in his 1981 work Structure and Change in Economic History. By the way, North’s definition of a state is still my pick as the most concise and accurate: “a state is an organization with a comparative advantage in violence, extending over a geographic area whose boundaries are determined by its power to tax constituents.” Governments by this definition have not always existed in human history. One can date them, at least in a rough sense.
Then there’s also the problem of using the term “inalienable” to refer to the right of citizens to access public records and government meetings. This term has a very specific meaning, referring to the Lockean concept of a social contract underlying legitimate government. As North and many others point out, there was no actual contract made at the start of any government whereby all future citizens agreed on what powers they were surrendering to the state and how it would conduct its affairs. Sensible theorists, including Locke, never believed that. Instead, the idea was that a sort of implied contract was formed, through migration and assent to authority, in which individuals recognized the power of the state to perform actions collectively that they could not as effectively do on their own, while retaining certain freedoms of action that could not be infringed by the state.
The first group, the actions individuals give up to the state, represent alienable rights. You give them up in order to gain the benefits of government. The second group, the freedoms retained, represent inalienable rights. These include, famously, the rights to life, liberty, and the pursuit of happiness. They do not include openness in government, important as it is, because the concept is meaningless in the absence of a government.
Both alienable rights (such as the use of physical force to decide a dispute, given up upon entering the social contract) and inalienable rights (the right to use force for self-defense, never given up) are natural rights. That is, they exist because they reflect what it means to be a distinct human person. Government can respect (or disrespect) natural rights but it does not create them. Civil rights, on the other hand, are created by government. They often involve issues of justice, fairness, or practicality in carrying out legitimate government functions.
For example, it is a civil right for every person to be judged according to merit, rather than other criteria, in the pursuit of government employment. Most states have also created a civil right to subsidized education, justified by the need to ensure a minimum level of competency for the purposes of voting and other acts of citizenship in a self-governing republic. Having done so, it is furthermore a civil right for individuals to have access to this education without regard to race, sex, religion, or other characteristics.
This use of the term “civil rights” is familiar – though the origins of the modern-day civil-rights movement, in which both North Carolina and J. Edgar Hoover may have played a critical role, may not be. But it isn’t the only one. Openness in government is, for example, a civil right. It’s not a natural or inalienable one. But it is an essential one, nonetheless.
I leave you with one final example of a natural, inalienable right: the right to disregard all future tirades by yours truly about social contracts and the theory of the state.
Hood is president of the John Locke Foundation.