Mr. Cooley is Associate Professor of Economics Emeritus. Ohio Northern University, Ada, Ohio.
The word "right," used as a noun, means, my dictionary tells me, a "just, or lawful claim." Claim on what? On whatever I want and can lawfully have.
I have a right to life, that is, a just claim on life. I have a right to liberty, a just claim to be free. I have a right to property, a just claim on land, goods, or other wealth.
My right is not life, liberty, property, but rather my proper and just claim upon these things. The distinction is important. It was understood by our revolutionary forefathers but is widely misunderstood today.
The misunderstanding lies in identifying the right with that which one has a right to, that is, a claim upon. Thus, people say, "Everyone has a right to an adequate diet:’ when they mean that everyone can properly take an adequate diet out of the common larder, by taxing or by voting his group a public subsidy. The fact is that no one can properly do this.
Jefferson, who asserted in the Declaration that all men have "certain unalienable rights," would have been disturbed if told that the government must provide food, clothing, and shelter to everyone because to have these is their right. One has a right to seek an adequate diet but not to compel his fellowmen to give it to him.
"Unalienable" describes that which cannot be alienated or separated from. An unalienable right is a natural right with which people are born and which cannot be taken away.
The opportunity to seek life, liberty and happiness is what Jefferson presumably was thinking of. When he listed life as one of the unalienable rights, he was thinking of the right to seek life and seek it more abundantly. He knew full well that life, liberty and happiness cannot be guaranteed to everybody, or indeed to anybody. We do not live in that kind of world. But we are born seekers, and no one can rightfully forbid our search.
The rights that are specified in the first ten amendments of the Constitution are freedoms, or opportunities. They are not achievements. For example, to grant religious freedom, as does the first amendment, does not make people religious! Rather, it forbids others (Congress> to interfere with people in practicing the religion of their choice.
Likewise, speech, press, assembly, and petition are not prescribed. The amendment simply makes them available to people to practice without interference.
These fundamental rights, which Patrick Henry, George Mason, and others insisted must be added to the Constitution, are negative in that they specify certain opportunities which government must not deny or tamper with but which must be left open to the people. All true rights are of this nature. They are freedoms from interference. They state what people shall not be prevented from doing.
The jurist, Thomas McIntire Cooley, saw a right as "that which the law secures to its possessor by requiring others to respect it and to abstain from its violation."
Underlying all other rights is the right to own property. This is a "just or lawful claim" on land, man-made wealth, or labor potential. Why must people have such a claim? They must have it if they are to use and control these things in such a way as to produce a livelihood. The right to life would be of little value if it were not accompanied by the right to exploit the material environment in a way to sustain life. This is the property right.
James Wilson, member of the Continental Congress and a signer of the Declaration of Independence, said:
"The right of private property is founded in the nature of men and things… Exclusive property multiplies the produce of the earth. Who would cultivate the soil and sow the grain if he had no special interest in the harvest? Who would rear and tend the flocks and herds if they could be taken from him by anyone who should come to demand them?… What belongs to no one is wasted by everyone. What belongs to one man in particular is the object of his economy and care. Exclusive property prevents disorder and promotes peace."
Again, the right of property certainly does not mean that one can rightfully take the property of others against their will. It merely means that people can seek property, produce it, buy it, inherit it, and that no one, neither their neighbors nor their government, shall forbid them or shall abridge the right.
We hear much talk of the right to a job. This does not mean that society (the government) must provide a job for every worker. It means that anyone may offer his services in the labor market, looking for a job, seeking to qualify, and deciding for himself whether or not to accept a job offer.
This right, too, is based on the property idea. One’s labor potential is his own personal property, and he is free to use it, sell it, improve it, or even waste it. If forbidden to do so, as by the government under a minimum wage law, or by a union taking advantage of special privileges granted by labor laws, he has lost a fundamental human right.
The government of the city of Detroit has made a rule that all policemen hired by the city must reside within the city’s limits. Some policemen are contesting this, holding that they have a right to live where they please.
They do. But the city also has a right to choose its employees. As an employer, it has a property right in the money it pays the policemen as wages. It can specify any qualifications it wishes in those to whom it pays these wages. The applicant who does not approve the qualifications is free to apply elsewhere. To force any employer to hire some particular worker is to abridge that employer’s right of property.
A "Coalition of Independent College and University Students" has been formed to lobby for increased Federal aid for students. "We believe," says Robert Kaplan, its head, "that no student should be denied the choice of a particular college or university solely for financial reasons." This appears to mean that every student should have the right to go to Harvard, the government paying his tuition.
Here again we encounter the assumption that a right is not a mere freedom to do a certain thing but is the privilege of compelling others to implement the doing of it. If this were true, a right would not be a freedom but a power. The Coalition wants not merely freedom of the student to apply to the college of his choice, which he already has, but power to force others to pay the student’s cost of going to such college.
Farmers sometimes aver that they have a right to receive prices that yield cost of production plus a profit. No one has a right to get any particular price for a product. What he has a right to is freedom to sell for whatever the market will pay, to search for a better market, to store and sell later if he wishes, to quit producing one crop and to produce another.
Employment, education, health, security—each, we are told is the "right" of every American. This is considered the unanswerable argument, the clincher that will tell the lawmaker how he must vote.
It would have been ridiculous for the Pilgrims, just landed on Cape Cod, to assert these desirable things as their rights. In fact, their rights were exactly the same as ours. Theirs were freedoms to seek and to establish, if they could, these good ways of life. And so are ours.
The Right to Be Wrong
THE RIGHT TO BE WRONG in matters of religious belief must be accorded, otherwise we produce hypocrites instead of persons with an enlightened belief that is fully their own. If the truth be mighty and God all-powerful, His children need not fear that disaster will follow freedom of thought.
FRANCOIS DE FENELON. Archbishop of Cambrai (1651-1715)
The Pursuit of Happiness
LET THESE TRUTHS be indelibly impressed on our minds—that we cannot be happy without being free—that we cannot be free without being secure in our property—that we cannot be secure in our property if without our consent others may as by right take it away.
JOHN DICKINSON. Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies (1768)