Bernie Sanders’ Rights Talk is Nonsense on Stilts

The Vermont socialist likes to invent rights that don't exist.

“Human Rights Day – chalking of the steps” by University of Essex is licensed under CC BY 2.0

In an otherwise perfectly sensible discussion of handling “gentrification,” Vermont Senator and Democratic Presidential front-runner Bernie Sanders had this to say:

People have a right to live in rental units that are affordable.

— Greenville News, “Bernie Sanders offers 3 ideas to help battle gentrification while in Greenville

It’s a common theme of his.

For instance,

Joining every other major country on Earth and guaranteeing health care to all people as a right, not a privilege, through a Medicare-for-all, single-payer program.

— Bernie Sanders 2020 campaign website, “Health Care for All

Not to mention,

Make quality education a right

— Bernie Sanders 2020 campaign website, “Fight for Working Families

And of course,

[E]veryone who can work in America should have the right to a decent-paying job

— Bernie Sanders 2020 campaign website, “Jobs for All

While I likely disagree with Sanders on how to implement these policies, we’re in agreement that human beings—particularly in a society as wealthy as ours—deserve to live in reasonable comfort and dignity. And, while we may differ on where one draws the line, we’re certainly in agreement that decent housing, education, healthcare, and employment are part of that.

Where we disagree is on the notion that these things are somehow “rights.”

In the tradition of the Enlightenment, out of which our own Declaration of Independence sprang, rights are almost always negative. The government may deprive us of life or liberty only under certain preset conditions after application of agreed-upon processes. We’re entitled to “the pursuit of happiness” without interference from government; we’re not entitled to happiness itself. Similarly, the government isn’t allowed to infringe upon our speech, worship, expression, and so forth. Our rights are almost all simply listings of things the government may not restrict or may restrict only under certain conditions.

Offhand, the only positive right I can think of in the Constitution is the right to have “the assistance of counsel” found in the 6th Amendment and later incorporated via the 14th. While it was initially narrowly construed—the government couldn’t prevent people from hiring an attorney—it gradually evolved into a right for one provided by the government, at least for indigent persons, when facing criminal penalty.

Still, while this is a positive right—in the sense that government is providing a benefit rather than simply refraining from taking an infringing action—it stems from a negative right—preventing the government from denying life or liberty without due process. It’s simply understood that the law is sufficiently complex that a citizen without access to an attorney is at such a huge disadvantage in court against the government.

Sanders’ proposed rights are all positive. And this is problematic.

I agree with Sanders that we ought, as a society, guarantee health coverage to all citizens. While I don’t pretend to have figured out the finances, I even agree with him that something like “Medicare-for-all” is the best way to go about providing this guarantee. But, unlike liberty writ large or more concrete rights like freedom of assembly, health care doesn’t exist in a vacuum. Another human being has to provide it. It seems odd, indeed, to say that we have a “right” to other people’s work.

Similarly, “rental units” are property. Those who own said property have rights; we declared as much in 1776. To say that those who don’t own the property have some sort of “right” to live in it is baffling.

The same is true of “a decent-paying job.” Leaving aside what constitutes “decent-paying,” it makes little sense to argue that one citizen has a right to the property of another. Again, the property owner has an “inalienable” right to have it protected from government taking absent due process of law. But how does another citizen gain a right to it?

Some of these objections go away under socialism. If government owns the means of production, there is no private property right to be alienated.

We’ve largely done this with primary and secondary education. While no one has a “right” to go to Phillips or Groton, we can say they have a right to free public education if the state is building and otherwise financing the schools. Some societies have decided that even university education is a “right,” to be paid for by the state.

But while Sanders labels himself a “socialist,” he doesn’t advocate government taking over all the nation’s industry or nationalizing all of the apartment buildings. He doesn’t even want a British-style National Health Service, where the hospitals are state-owned and the staffs are civil servants.

So, talking about these things as “rights” is just an odd formulation. It makes much more sense to talk about “safety nets,” community, and human dignity.

FILED UNDER: Bernie Sanders, Campaign 2020, Democracy
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. PuzzleMeThis says:

    ‘Similarly, “rental units” are property. Those who own said property have rights’

    Positive ones?

  2. Michael Reynolds says:

    When Obamacare was first being debated there was much conversation over at Dave Schuler’s on the merits of the plan. My position was that I didn’t care because the essential fact was that health care was being moved into the federal government’s ‘in’ box. Once in, it would never be out, so whatever the details of Obamacare the end result would be more people covered, and a growing assumption that health care was a right.

    Colloquially a ‘right’ is whatever you had in the past plus its logical extension. You have a right to a musket therefore you must have a right to an AK. Congress shall make no law abridging becomes a right to yell ‘fuck!’ in public. Non-establishment is a right to practice Wicca. 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’s not the Constitution, just the Declaration, still we have laid the groundwork for the notion of expanding rights.

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  3. James Joyner says:

    @PuzzleMeThis:

    Positive ones?

    Mostly negative ones, as alluded to in the Declaration and then spellout out in the Bill of Rights. But there are some obligations of government to protect the property from theft (which I’d call a “positive” right) and a body of statutory protections that could be said to be positive, although I’m not sure I’d call them “rights.”

    @Michael Reynolds:

    still we have laid the groundwork for the notion of expanding rights.

    I think that’s correct, although what you describe is mostly an expanding definition of what the pre-existing rights entail. One could argue that it’s difficult to engage in the pursuit of happiness in a modern society without a basic education. I’m not sure that this creates a “right” to education per se. But the creation of public schools, in concert with the fundamental right of equal treatment under the laws, creates what amounts to a “right” to attend the public schools on an equal basis. And from this flows question about what said right means, given that we tend to finance schools based on local taxes which are quite unequal.

  4. OzarkHillbilly says:

    One man’s rights are another man’s wrongs. Or if he’s facing you, lefts.

  5. Slugger says:

    “Rights” are what society says are rights. There was a time when there was no private property; every inch of England belonged to the king. The estates of nobles were held by them as a trust. Around 1100, the nobles forced the king to recognize their rights. For many years, only nobles, adult and male, had property rights. Slowly, commoners got property rights. Women didn’t have property rights for a long time. The right to vote is another important right which was extended to women in the last hundred years and blacks more recently.
    Rights are social constructs and change with time.

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  6. Andy says:

    There’s been this transition in the meaning of “rights” from one defined by inalienable and natural rights to “rights” that are actually benefits granted by government authority. I think those are two very different things, at least in the tradition of western enlightenment on which our society is supposedly based.

    Ideally, we should have different terms for these two concepts.

  7. dmichael says:

    An interesting and thought-provoking post. Unfortunately, targeting Bernie Sanders about his use of “rights” is misplaced. He is using it, (perhaps too loosely) to mean “people deserve.” He shouldn’t be taken to mean “people must be provided” or even “people must not be denied.” I am speaking not as a Sanders supporter but as someone who doesn’t want any old white man (like me) to be the Democratic Party candidate for president.

  8. Modulo Myself says:

    This is just a continuation of the New Deal. Why is that so hard to understand? To put it bluntly–you have to be insanely incurious and detached not to grasp that property rights might lead to exploitation and that people might have an innate right not to be exploited. And you have to have an odd conception of politics to be confused when politicians try to appeal to a sense of fairness and rightness in voters.

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  9. JKB says:

    Sanders is using “rights” as a proxy for his differing view of liberty. The two, differing and incompatible, views of liberty were explained quite well by Lincoln in 1864:

    The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.

    –Address at a Sanitary Fair, Abraham Lincoln, Baltimore, MD, April 18, 1864

    The negative rights in the Constitution limit how the government may infringe the liberty of a person to do at they please with themselves and the product of their labor. The continuing encroachment, of which Sanders is the latest purveyor, of “positive” rights are a direct re introduction of the the idea of liberty being the liberty to do what, in this case the voting majority via the government, they want with others and the product of their labor.

    Keep in mind, “to be paid for by the state” means wealth to be taken by force or threat of force from some to be used by government officials/employees to buy dependency of others on the state.

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  10. Slugger says:

    @Andy: Andy, at the time that those wonderful and truly inspirational words about inalienable natural rights were written, those ideas were considered radical and subversive. At that time, aristocracy was the most prevalent system on earth and widely defended by church, state, and intellectuals. The founders of our country were in open rebellion with a fairly new idea about human rights. Human rights that they did not extend to everyone; women being one example of nonvoting nonproperty owners. An English farmer could and did get thrown off the lands that his forefathers had worked for many centuries by the Enclosure Laws, the same for Scots by the Highland Clearances.
    The nature of Rights changes.

  11. Gustopher says:

    This is mostly just a semantic argument, but not all rights come from the constitution — the constitution was merely an effort to nail down rights in a legal sense. The constitution enumerates those rights that it will protect.

    If you believe in a higher power, or have any overarching moral philosophy, human rights (and sometimes animal rights) will come from there, and the constitution will merely reflect many of them.

    You and Bernie are using the word “right” in entirely different ways — you’re stuck on a legal definition using the constitution as a source, and Bernie is using a more aspirational definition using philosophy as a source.

    That, plus what @JKB pulls up from Lincoln.

  12. Just nutha ignint cracker says:

    Of course, no one has a *right* to a job, housing, health care, or education. That formulation is just one of the stupid shorthand sound bite approaches that make the continuing argument inane.

    However a wise a prudent society needs its citizens (preferably all of them, but that’s not real life for many reasons) to have all of these benefits/boons/goods/whatever you want to call them, and the problem every society faces is how to pull this rabbit of the hat of the common weal (or more likely, incorporate the rabbit into it).

    To this end, the two opposing sides in our particular political debate on this disagree as to method, but that disagreement is telling in and of itself. On the left, the prevailing ethos is that the society must come together to do what can be done through government intervention and action to make these benefits available to all as equally as possible.

    The right, on the other hand, says that a socioeconomic construct designed to address the availability of goods by resolving gluts and shortages of products (hereafter identified as “the market”) can and will provide all of it, conditioned on the proposition that said market be permitted to operate without restrictions (many will add “at all” to the previous–at least until their own ox is gored).

    In a society where the basic principles of life revolve around some basic tenets:
    1) I can never have enough while you always have too much
    2) There is never enough to go around
    3) Everytime you gain something, it has been taken from me and vice versa
    4) I have no obligations to anyone not named [insert own name here]
    it becomes obvious that one side has no facility to address any of the issues raised in Sander’s argument. They don’t give a fwck about them. As always YMMV.

  13. The abyss that is the soul of cracker says:

    Human rights that they did not extend to everyone; women being one example of nonvoting nonproperty owners. An English farmer could and did get thrown off the lands that his forefathers had worked for many centuries by the Enclosure Laws, the same for Scots by the Highland Clearances.

    Well certainly what you note was true, but if you look at the times you’re talking about, you can see the people who were being displaced by Enclosure and Clearance didn’t have rights: the tenants farming in England were more in the line of property (think *human resources*), and Scots were clearly not even human. Remember, they spoke gibberish, not English like human beings did. And that’s only one example.

  14. gVOR08 says:

    The line ‘nonsense on stilts’ I believe comes from Jeremy Bentham, a Utilitarian, who was referring to the concept of natural rights. Sanders seems to be wanting to create legal rights, as opposed to natural rights.

  15. James Joyner says:

    @Slugger:

    Rights are social constructs and change with time.

    Agreed. But the rights that you point to are all ones against interference from the government. The ones Sanders point to come at the expense of the property of fellow citizens.

    @Andy:

    Ideally, we should have different terms for these two concepts.

    Agreed.

    @dmichael:

    Unfortunately, targeting Bernie Sanders about his use of “rights” is misplaced. He is using it, (perhaps too loosely) to mean “people deserve.”

    As noted, I agree with him that people deserve these things (although we may well disagree on the degree to which they’re deserving). I just don’t think “rights” works.

    @Modulo Myself:

    To put it bluntly–you have to be insanely incurious and detached not to grasp that property rights might lead to exploitation and that people might have an innate right not to be exploited.

    I agree that property rights can lead to exploitation. But how can there be a “right” against exploitation? The Ritz Carlton gets $1000 a night for a room in a big city. Most people can’t afford it. So they stay somewhere else. Government can regulate unfair practices such as hidden fees. It might even require that hoteliers provide some number of rooms at more affordable rates. But that’s regulation, not “rights.”

    @Gustopher:

    You and Bernie are using the word “right” in entirely different ways — you’re stuck on a legal definition using the constitution as a source, and Bernie is using a more aspirational definition using philosophy as a source.

    I’m using the Constitution as the source of our tradition but allude in the title to Jeremy Bentham’s notion that natural rights don’t exist; rights flow from the social contract.

    @gVOR08:

    The line ‘nonsense on stilts’ I believe comes from Jeremy Bentham, a Utilitarian, who was referring to the concept of natural rights. Sanders seems to be wanting to create legal rights, as opposed to natural rights.

    Yes. My title is a play on Bentham’s famous line; I’m not arguing that Bernie is citing natural rights, merely saying the things he’s calling “rights” are something else.

  16. MarkedMan says:

    Rights are whatever society says they are. There are no rights in nature. None. And this distinction between negative and positive rights is vaguer than you think. There is no more radical right, and none more fundamental to Western society, than property rights. Yet we talk of this as if it is the most natural right of all