Tuesday, July 17, 2007

Natural Rights v. Concocted Rights [Jay]

Mike @ Really?!! wrote this piece on what constitutes the source of our actual rights and how the programmatic and positive rights, those rights that are established by law to satisfy some injustice that we intuited, come afoul of our natural rights, as expressed in The Declaration of Independence. Full disclosure, Really?!! is my blog that I started to put everything that I do not feel fits the LTI Blogs stated purpose. It includes everything from the sublimely stupid and pointless to pieces like this one by Mike. Also, Mike and I discussed this piece prior to his writing it. Mike studied the social programs of F. D. R. and the basis of our rights as his thesis in his Masters program studies at the University of Virginia. He feels very passionately that the government of the United States ought to be restricted in its access and control of our personal lives.

After writing this piece on Planned Parenthood, I was terribly bothered by the clear conflict of the two different types of rights. It is obvious to me that programmatic and positive rights often sound good in theory, but can run afoul of other rights in enforcement and application. Lets grant Planned Parenthood only the noblest of intentions in protecting and preserving the prescribed Constitutional right of every woman to have access to safe abortions for the purposes of this discussion. Lets also set aside the issue of the unborn and their humanity for the moment as well. So stipulating, there is ample and mounting evidence that the “right” to abortion is hopelessly flawed in that the preservation and protection of that right forces us to sacrifice the right of young women not to be sexually abused by their fathers or older men. Even if PP operated out of the best intentions imaginable, we have to start to ask serious questions about what we are willing to throw away to protect the privacy rights of women in the area of abortion.

I will draw out two examples to compare. (1) The presumption of innocence in the criminal justice system that allows guilty men to go free in order to protect the innocent from unjust incarceration. (2) The absolute right to abortion and personal bodily autonomy that creates an environment where sexual abuse goes unreported or uninvestigated. Obviously, you could do a great deal of work on this subject so I will try for brevity here.

“It is better that 100 guilty men go free than 1 innocent man be incarcerated.” People that fled governments that abused their citizenry with unfair prosecution and punishment way out of proportion to the crimes built this ideal into our criminal justice system. If you have read Robert Zacks’s The Pirate Hunter, then you get to see a good example of when a government unfairly prosecutes someone without legitimate due process as is illustrated by the trial of Captain Kidd and others in the book. I challenge anyone to read this book and others that detail the abuses of the criminal justice system and not walk away with a renewed appreciation and understanding of the presumption of innocence. Do you want the government to be able to arrest you for a crime and suppress all of the evidence of your innocence? Can we imagine that people were executed for stealing the pants of rich men? Would we empower our prosecutors to change the legal process in the midst of the case to make it impossible for people to present a legitimate defense? No one wants guilty people to go unpunished for criminal actions. We just hate the idea of innocent men and women rotting in prison more.

Now, take this logic and apply it to abortion. “It is better that 100 young women be secretly sexually abused than for 1 woman to be forced to have a child she does not want.” Before someone’s head explodes at reading that and accuses me of being unfair please recognize the following:

(a) It is a fact that the presumption of innocence has allowed people to get away with crimes because of insufficient or unjustly collected evidence.

(b) It is a fact that the efforts to protect the right of every woman to have an abortion has created an environment where the circumstances of conception are a secondary issue, including when 15 year-old girls seek abortions and get them with no investigation into the circumstances.

The two negative and unintended consequences are unavoidable. In case (1), the sacrifice seems acceptable. People ought to be punished, but every person has the natural right to live free of tyranny and unjust prosecution. A guilty person going free is a miscarriage of justice. Prosecuting the innocent without due process is violation of their natural rights. Case (2) does not feel right. It does not sound right. That is because we see the natural right of women to live free of sexual abuse in competition with the “right” of a every woman to get an abortion. When the primary interest of our government or institutions becomes the protection of the invented right to abort the unborn, then the zealous protection of that right and provision of the service runs afoul of things that ought to be of greater importance. The overwhelming majority of abortions are performed for elective reasons. That means they are not necessary. It appears that we are unintentionally making it more difficult to investigate and prosecute sexual abuse to protect the rights of women to do something they do not HAVE to do. Women and children should NEVER be sexually abused. As much as it is possible, we OUGHT to ALWAYS seek to protect women and children from this morally impermissible action. Even if you wish to argue that abortion is morally permissible but not advisable, you have to honestly look at how the practical application of that belief is playing out.

I am not saying that abortion is immoral because it creates this environment. Abortion is immoral because it terminates the life of an innocent human being for elective reasons. Abortion on demand already runs terribly rough shod over the natural right to life of the unborn. That the concocted right to abortion is also bumping up against other rights that ought to be more vigorously defended is only further evidence that it is not a legitimate right at all.


  1. I do love a good rights talk. Jay, I think you are on to something here (as you well know i think.) Today, I got into a discussion with a young man arguing that the Right to Privacy was a natural right (which i would generally agree with), and that as such the right to an abortion properly fell in with this "natural right" under a broad interpretation of the ninth amendment.

    I found this to be an interesting tact, but by no means satisfying. If in fact we grant the position that by it being a woman's body and her choice, the act of abortion is an act of privacy falling within a natural rights framework this does not guarantee a right to an abortion, but in fact undermines the very right to privacy that they are making an appeal to.

    The nature of our natural rights and the hiearchy inherent in their makeup requires this to be the case. For example, in speaking of a right to privacy this right is in fact meaningless without a right to liberty coupled with it, which one might argue is the higher order right. Privacy would be considered a sub-group of the right to liberty. The simple argument being that privacy is a an element of liberty a person exercises in some part of their life seperate from the state. As liberty is properly understood as the freedom to live your life as you best see fit so long as it does not deny another's natural rights, privacy would be one component of that liberty, much like a right to engage in social relationships as you see fit would be an aspect of that liberty.

    Now as stated above we have liberty only in so far as that liberty does not infringe on the natural rights of another person. Of all the means that one person might violate another person's liberty, the greatest of these would be to forsake another person's right to life. Now I wish there to be no mistaking the fact that by a person I do mean a human life and not some condition begining at an arbitrary point in the timeline of human existance (this is an issue that has been more than fully addressed in other posts.)

    It is important we recognize that there exists a natural right that supercedes our natural right to liberty, that being a right to life. In fact, this should make intuitive sense as any description of "natural rights" that does not honor a right to life is in fact meaningless. To what end do I appeal to my natural right of liberty, or privacy for that matter, if a right to life is not first guaranteed? It would be the same as asserting that you have a right to privacy in your personal life, but that I may come in and shoot you if i so choose. That is non-sensical. I have not violated your right to privacy as I have not stopped you from performing a specific act, but have rather taken the generalist position and stopped you from existing further in all acts whether private or public.

    This is an important distinction, I think, because even if by judicial decree a court defines abortion under a right to privacy, the very outcome of this case is to undermind the very right to privacy that you are appealing to as you have now elminated a right to life as the backbone of your system. Since a right to privacy, presupposes a right to life that is protected already, any effort to argue for a specific act (ie. abortion) as a right to privacy does not logically hold under a system of rights when the abortion itself is a violation of the first right on which the system is built.

    I think that made sense...but then again, I haven't eaten in 10 hours. It may have also be terribly pointless.

  2. Can you give us the link to your blog, Jay? I'd like to check both out on a daily basis.


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