A cursory glance at the news seems to indicate that support for traditional liberal rights is waning. For example, half of our young people support banning hateful or offensive speech. Yet while support for traditional rights diminishes, there seems to be growing support for emerging rights, like transgender bathrooms. I want to consider the connection between traditional liberal rights and newer, emerging rights.
Traditional liberal rights, or primary rights, are things like the right to speech, private property, a jury trial, habeas corpus—rights long deemed essential to the flourishing of individuals in a free society. In contrast, emerging rights, or secondary rights, are relatively new. Emerging rights are broad in their scope and a bit nebulous in their nature, but they include rights like the right to employment, abortion, health care, and the right to education.
Whereas traditional liberal rights tend to be negative in nature—e.g., a person cannot be indefinitely held without trial, congress shall make no law abridging the freedom of speech—emerging rights tend to be positive in nature—a right to health care and education imply a right to state-funded schools and insurance.
It is not my purpose to argue for or against secondary rights but rather to argue that some secondary rights are predicated on the continuance of primary rights and that paradoxically these secondary rights undermine primary rights. This occurs because every right has a corresponding obligation. When new rights are “created,” the obligations they include often impair primary rights.
Take for example the connection between the right to private property and the right to employment. The right to private property secures the fruits of one’s labor. For example, today in the United States a man that plants apple trees can reasonably believe that he will be able to harvest the apples those trees produce without private or governmental interference. An owner, knowing that his property is secure, is in turn able to hire workers to tend his orchard or harvest his apples. Because the owner’s right to his property is protected, he can employ others, which in turn allows his employees to provide for themselves.
But the right to employment undercuts the right to property. For example, if you have a right to employment, I may be obligated to employ you or pay punitive taxes so that the government may employ you. As a result my right to use my property as I see best is hindered.
To give just one more example, consider transgender bathroom rights. If a transgendered individual has a right to use the bathroom of zir choice then business owners have an obligation to let zir. An owner may object and say this violates his conscience and the government should not compel him to do something he thinks is immoral. A transgender individual on the other hand could argue that ze has a right to choose zir identity and express it as ze sees fit.
The hypothetical property owner and transgender individual each claim a right and the rights they claim are in conflict. Which right should prevail? The right that is primary and fundamental to the existence of the other ought to prevail. The right of conscience is primary and the right of expression naturally follows from it—to wit, if I cannot be compelled to do or say something I think is wrong, it seems to follow that I should be at liberty to say and do something I think is right. In this case the right of conscience should prevail because without it the right to self-expression that transgender individuals value will likewise cease to exist.
If we want our fundamental rights to continue to exist, we have to demonstrate how some emerging rights undermine them. The right, if I may put it crudely, to be free from offensive speech sounds good until it is demonstrated that this will limit the ideas we can express and hear, which will in turn limit the thoughts we are able to think. We can’t have everything on our terms. If primary rights are to continue, we will have to reject some secondary rights.