Whose Rights Are These, Anyway?
Whose Rights Are These, Anyway?

Whose Rights Are These, Anyway?

One of the hallmarks of growing up as part of the Boomer generation is that our education centered primarily around two general concepts: That the United States was the greatest country in the world, and that we were the champions of freedom around the world. These concepts came out of a shell-shocked vision that needed to somehow justify not only the number of lives lost in World War II but also the ongoing actions in Korea and Vietnam that took lives without quite so clearly defining why we were there in the first place. Our parents and grandparents felt a need to instill in us the idea that we, more than any other country in the world, had saved the planet from Fascism, and that we, more than any other country in the world, were free to do whatever we want, wherever we want, whenever we want. 

Freedom was a big word that carried a lot of emotion. When we would study history, comparisons were made between ancient cultures and the freedom of the contemporary United States. When we would study other contemporary cultures, direct lines were drawn between their difficulties and the lack of freedom their people had. Over and over, we were told that it was our freedoms, as outlined in the Articles of the Constitution, that set us apart and made us superior to every other country in the world. No one else even came close.

That line of teaching worked through elementary school with little difficulty, but by the time we became teenagers, and definitely, as we entered high school, the flaws in that freedom theory started becoming evident. The high school imposed a dress code. Hey, aren’t we free to wear what we want? School administrators closed the campus so that students couldn’t run to a local drive-in for lunch. Hey, aren’t we free to eat where we wish? Then, they started assigning parking spots for those who drove to school, issuing tickets if you weren’t in your assigned spot, or possibly marking you absent! We were sure that our freedoms were being violated by those rules!

What we couldn’t see at the time was that administrators had reasons for each of those decisions. I’m not saying they were all good reasons, but they were present. The dress code was implemented out of fear of gang activity present in a neighboring school system. The closed campus was the result of students being involved in multiple accidents during the lunch period. The assigned parking spots made it easier to know if, when, and who was slipping away from campus and skipping class during the day. From the perspective of the school’s administrators, they were doing their job in keeping us safe. From the perspective of students, each new rule violated yet another right. 

Looking back now, the entire debate seems rather trivial. If gangs were going to divide the school, uniforms wouldn’t have stopped them. Students were still hurt in accidents, just not during the lunch period. Plenty of kids found ways to skip class without moving their cars. I might have been one of them. No one’s activities were being curtailed to any point of personal detriment.

What that environment did, however, was created in our generation a sense that we had to ferociously, continually, adamantly, defend our rights, both real and imagined, against every manner of attempt to truncate them through one method or another. We argued about what the government did. We argued about what the government wasn’t doing. 

Sadly, what we never really understood was that personal rights are only one part of a larger equation. And while my parents were persistent in teaching that with all those rights came both specific and implied responsibilities, not everyone got those lessons, and even fewer passed them down to the next generation. As a result, we now have a society that seems divided along a line of which is the greater need: defending personal rights or the public good. The end answer is that one is not greater than the other, but to get there, we need to see why both sides need to compromise.

Checking The Milk Before Buying

There is a quote that I hear often when discussing the difference between one person’s rights and those of another, or of a group. The quote dates to some point in the late 19th century and has especially strong ties to the temperance and prohibition movements in the United States prior to World War 1. There is a lot of question as to who made the statement first, but my favorite attribution goes to John B. Finch who was the Chairman of the Prohibition National Committee for several years in the 1880s. He was giving some manner of oration in Iowa City in 1882 when he said:

This arm is my arm (and my wife’s), it is not yours. Up here I have a right to strike out with it as I please. I go over there with these gentlemen and swing my arm and exercise the natural right which you have granted; I hit one man on the nose, another under the ear, and as I go down the stairs on my head, I cry out:

“Is not this a free country?”

“Yes, sir.”

“Have not I a right to swing my arm?”

“Yes, but your right to swing your arm leaves off where my right not to have my nose struck begins.”

Here civil government comes in to prevent bloodshed, adjust rights, and settle disputes.

Another version of the quote says, “Your right to swing your arm ends where my nose begins.” 

There was, almost 150 years ago, this concept that it was the job of government, more than individuals, to manage that space where personal rights and what’s in the public’s best interest collide. Over the years, we’ve seen where that went well, such as the use of public domain laws to lay railroad tracks and establish the interstate highway system, and other times where it was used inappropriately, such as with alcohol prohibition and using the placement of interstates to enforce racial separation and inequity. 

What it comes down to is that there are some personal rights that are absolute, and others, particularly those granted by citizenship in a country or participation in a government, that is more arbitrary. And walking alongside both is the need to balance those rights with our responsibility for doing what is best both for our community and the rest of the world. This is a tight-rope act if there ever was one and we don’t have a great sense of balance.

Your Rug Is Your Problem, Not Mine

So, who is responsible for deciding what personal rights we have? Are we limited to what is included in the United States Constitution, or is there some other list to which we are inherently entitled? If, for any number of reasons, the United States were to cease to exist, would our rights go away as well?

The United Nations Universal Declaration of Human Rights adopted in 1948 attempts to answer that question in a manner that applies to all of us, every human on the planet, no matter where we live. The entire document is too long for me to quote here, but in particular, Article 25 says this:

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

From the standpoint of a US citizen, those basic rights might seem like a minimal list, but when we take a closer look, we find that perhaps we’re not as well off as we once thought. If we use the federal minimum wage of $7.25 an hour, then we can’t claim that everyone has the prescribed standard of living, even if they work 50 or 60 hours a week. A minimum-wage worker in the United States can’t adequately provide for the health and well-being of himself, let alone his family, and security in the event of unemployment, sickness, disability, or anything else.

This brings us to an existential question not easily answered: can we adequately address the needs and rights of the public good if our own needs and rights are not being met? Certainly, if my living situation doesn’t afford me enough food, keep a reasonably safe roof over my head, or allow me to see a doctor when I’m ill, then my ability to contribute in any way to anything or anyone outside myself falls to near zero. I might find the energy to help out those closest to me, but my primary thoughts have to be toward meeting my own needs, addressing my own rights first.

If I have a right to health and well-being, though, who is responsible for making sure I have those things? Is the responsibility mine alone? Any number of variables can stand in the way of that happening, from disability to lack of adequate training or transportation.

Some would say that I am responsible for maintaining my rights, regardless of circumstance. I am responsible for developing skills that make me employable, making myself available to an employer needing those skills, and then performing those skills in an adequate fashion. My employer, then, has a responsibility to acknowledge my rights by paying me a livable wage. In theory, that should work.

Except that theory and reality are not the same. The law only stipulates that my employer has to pay me $7.25 an hour, well below what I have a right to earn. Depending on my skills, market demand might drive my value up, or there may be so many people with identical or similar skills that my value is minimized. 

Where we end up is that even our most basic individual rights are lost if they’re not supported by the governments of which we are a part. We have seen this for centuries in countries ruled by narcissistic dictators but it also occurs in so-called democracies when we fail to demand more from our government by electing representatives who will uphold our basic rights. Everyone has rights. Not everyone has them supported.

If You Will It, It Is No Dream

On the other side of the equation stands the public good. Right off the bat, we have a problem. While we understand the general concept around personal rights, we don’t necessarily understand what composes the public good. A public good is an economic term and by definition, it must be non-rivalrous and non-excludable. Non-rivalrous means that the goods do not dwindle in supply as more people consume them; non-excludability means that the good is available to all citizens. 

Who is responsible for the public good? The short answer is rather obvious: everyone. We all have a responsibility to look out for our fellow humans as well as the planet itself. But there are limits to what we can do as individuals, so we then look to organizations of various kinds to accomplish tasks that would be insurmountable on our own. For example, a church may run a food pantry to help people who live in a food desert. A physician’s group may offer a free clinic once a month to provide care to those who don’t have insurance. Non-governmental organizations, or NGOs, do a tremendous amount of work for the public good worldwide, providing everything from clean drinking water to help build basic infrastructure for emerging economies. The world relies heavily on them to go into places where it would be inappropriate for a government entity to go, or where a domestic government has neither the skill nor the funds to go. 

But there are matters of public good that are inappropriate for NGOs to tackle as well, and one of those we’ve experienced recently, for better or worse, is the matter of public health. While NGOs can be great at administering vaccines to people in emerging countries with smaller populations, they don’t have the authority to demand people do things such as stay home, wear masks, close businesses, and avoid large gatherings. For extreme situations like that, a government is required and it is there that we have seen a clash between what some consider to be their individual rights and the public good. 

The question then becomes one of whether health is a public good. Does it meet the criteria of being both non-rivalrous and non-excludable? The short answer is yes, health is a public good. It is non-rivalrous in that you being healthy in no way interferes with someone else being healthy, and it is non-excludable in that being healthy is good for everyone and doesn’t run out.

What about limitations, then, imposed to maintain a healthy population? Is quarantining an entire population non-rivalrous and non-excludable? This answer, while still in the affirmative, requires a bit of a twist. Fighting disease is non-rivalrous in that protecting one group or individual does not diminish the protection of other groups or individuals. It is the non-excludability that gets sticky. By limiting the actions of individuals, primarily those infected and/or at high risk of becoming infected, those at lower risk receive greater protection against being infected. At the same time, by quarantining the whole and imposing strict public health guidelines, all individuals receive the same level of protection.

Still, there are those who will argue that they have a right to not participate in the public good and assume the risks for their own health. This is where our tale from the beginning comes into play. While yes, you have a right to manage your own health and assume personal risks, your right to do so becomes moot at the point your behavior creates risks for someone else. 

The public good is only public good if it provides for everyone. If a group is placed at greater risk because of one’s behavior, then the public good is to that degree diminished. Therefore, of necessity, maintaining public good, making sure that everyone maintains the basic fundamental rights, would seem to come before individual rights.

But wait. You know nothing is ever that clear. Let’s take a look at some exceptions.

He’s Fragile, Man! Very Fragile!

There are a number of places where individual rights are in conflict with what would appear to be the public good. I could spend all day going through the list but we’d both likely fall asleep. Instead, let’s look at three of the hottest topics for the moment.

One is the pervasive question of when is it okay to end a life? Mind you, we’re not talking abortion, which hinges on a matter of when a life begins. Rather, we’re considering that there is already life, but the quality of that life has reached a point where one can no longer function without suffering and pain. We have, for decades if not centuries, been of the mind that when animals are injured to the point of incurable suffering, that putting them to sleep is the most merciful response. Mention doing that to another human, though, and people often respond as if you are a monster.

There is a new documentary produced by and featuring former NPR personality Diane Rehm called When My Time Comes, a follow-up to her book of the same name. Both the book and the documentary are in response to her husband’s death in 2014 and the issue of an individual’s right to die has become a cause she champion’s publicly. 

In the documentary, we hear Ms. Rehm testifying before the Maryland state legislature and she says:

If you believe that only God should be the decider, I support you 100%. If you wish to have every single option that medical science provides, I support you 100%. And if you believe as I do, that you want the right to end your suffering at a time you choose, I Support you 100%.

Later she adds:

“Is it the church that should decide when I’ve had enough suffering? Is it the doctor who should decide when I’ve had enough suffering? Is it the state that should decide when I’ve had enough suffering? My argument and those who argue for medical aid in dying believe it should be the patient who makes those decisions.”

The argument on the other side precariously argues that medical aid in dying erodes the public good by circumventing the natural course of life. They would say that medical aid in dying is not non-rivalrous because the selective death of one may have a direct impact on the well-being of others and that it does not meet the criteria for being non-excludable because not everyone is going to meet the medical qualifications currently in place for justifying medically assisted death. There is a lot of gray area in both arguments, a strong feeling of, “you go your way but don’t hinder me from going mine.”

While I have an opinion on the matter, I have to admit that I see little clarity on whether either argument is infallibly correct.

A second long-running and deeply emotional issue is that of gun control. The Second Amendment of the Constitution reads: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. That would appear to establish the baseline for both personal rights and the public good. The security of a free State is most certainly within the purview of the public good.

However, things have changed a bit since the amendment was ratified along with nine others in 1791. There was no standing federal military at that point in time, necessitating a well-regulated Militia within each state. Legal scholars are now regularly arguing that the various branches of the United States Military compose that militia and that the right to bear arms is therefore limited to those so enlisted in that military. 

The most recent case decided by the 9th Circuit Court of Appeals in March ruled that the public good held sway over the amendment, that “the contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly.”

The dissenting opinion pushes back by saying, “Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self-defense in any other place.”

Still, in opposition to the dissent is that the amendment mentions only the “common” or public defense, raising the argument of whether a personal defense is part of the amendment at all.

Our love for guns runs deeper than our love of family in many cases and saying either side is infallible is naive. However, with more than 100 gun-related deaths per day in the United States, it would seem that some decision needs to be made and it needs to be made quickly. Gun deaths are unquestionably an epidemic unique to the United States. That we are unable to find a solution is embarrassing.

Finally, and perhaps most current, is the argument over vaccine passports. Many countries and some states are considering them as a way of fast-tracking who can, and by extension, who can’t return to a more “normal” and public lifestyle. Six states have banned their use completely, citing discrimination against those who are not vaccinated. It is difficult to not see the validity of that argument.

However, Dr. Leana Wen, emergency physician; public health professor, George Washington University; contributing columnist, The Washington Post; former Baltimore City health commissioner, said on the NPR program 1A this week:

“This idea of a passport to some people makes it sound like it prevents you from doing something… Another way to look at it is, it gives you something that allows you to do your activities more easily. Maybe if you don’t have proof of vaccination, you have to do something else, as in you have to do testing or you have to go through a longer process to certify your health. Versus, if you have this verification of vaccination you can skip that step and potentially do more activities.”

At some points in this argument, it appears that the public good of equal access for everyone, as guaranteed by the 14th amendment, is in conflict with the public good of preventing large-scale infections. That vaccination rates lag among communities of color make that argument all the more important and seems to require that we make every effort possible to vaccinate everyone, even as some declare their right to remain unvaccinated. 

Just Take It Easy, Man

We all like our rights, our individual freedoms. I like my right to talk with you each week, to write pretty much whatever I’m thinking, and to publish what I write on my own website. This whole free speech thing is great and I enjoy exercising it. However, I do so mindful that that are lines not to be crossed, lines that affect the public good by avoiding racism, sexism, homophobia, transphobia, xenophobia, and any number of other issues. My right to speak ends when my words diminish the humanity of someone else. 

So, let me leave you with these words:

When you are challenged with conflict
For which there is no clear resolution,
May you find a place of strength and wisdom;
When life’s choices appear cold and dark,
And the night would seem eternal,
May you find a place of warmth and light;
When you feel fruitless and barren,
May someone cheer you with flowers;
May you genuinely go forth in happiness,
Your actions led by a desire for peace,
And may singing and dancing
Accompany your every step.

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