The Real Meaning of "Natural Rights"

In the midst of the COVID-19 pandemic, devotees of individual liberty rightly became concerned about the kinds of drastic restrictions that were placed on our personal and economic freedoms. Is such interference with freedom ever justified? If so, what restrictions are excessive? And how long should they remain in force?

There are no easy answers to such questions. But they do raise broader and more fundamental questions about the nature and meaning of “rights.”

Some people object to any restrictions on individual freedoms, even during emergencies, seeing them as violations of their fundamental individual rights. That objection usually arises from the traditional view of individual rights, as being “natural” and/or “God-given” in origin. By this view—broadly accepted by most conservatives, libertarians, and even Objectivists—individual rights are elements or aspects of human nature itself. They are “intrinsic” or “inherent” parts of human beings; thus, they are “absolute” and may not be abridged or curtailed by anyone, at any time, for any reason—not even in an emergency.

This belief—that rights are intrinsic to human nature, and thus immutable and inviolate “by nature”—owes its appeal among liberty lovers to their justifiable fear of socially subjective theories of rights. This latter view, promoted by the political left, holds that rights are merely grants from some authority figure or from “society,” which confer special privileges, freedoms, goods, or services upon designated individuals. Viewing a right as a socially granted privilege implies that the source of rights is the granting authority. That, in turn, implies that the granting authority—whether it is a king, dictator, or social majority—is morally and legally entitled to exercise unlimited dominion over individuals. It means that individuals may act only by the authority’s permission.

But equating “rights” with “permissions” negates the very meaning of rights. To act “by right” means to act autonomously, without further permission. A right is a moral-legal entitlement—not a social permission slip.

It is therefore understandable that lovers of liberty would reject the left’s bogus interpretation of rights as socially subjective and instead seek some objective basis for the concept. Since the days of John Locke, those freedom-lovers of a secular bent have tried to ground the concept of rights in nature itself; those of a religious bent argue that individuals’ rights are “endowed by their Creator.”

But both err in thinking that their respective approaches provide the concept of rights with an unassailable, objective foundation.

Let me state up front that I believe the concept of rights does have an objective basis in certain facts of human nature. However, while my perspective draws from Ayn Rand’s seminal writings on this topic, I don’t believe the presentation she offered in her essay “Man’s Rights” (Ch. 12, The Virtue of Selfishness, November 1964) distinguishes her view unambiguously from traditional “natural rights” theories. And I do not accept theories of “natural rights” or “God-given rights” as they almost always are expounded.

First, the “God-given rights” view is problematic, not only because it reduces claims of rights to mere articles of faith, but also because I don’t believe there is any biblical reference to a concept or principle of “individual rights” that supports such claims by religious believers. Such assertions are, at best, shaky interpretations that believers have merely inferred from cherry-picked passages or ideas in the Bible, then inflated in meaning and elevated in status to become religious doctrine. Even a devout Christian ought to find such interpretations disturbingly arbitrary—especially when elaborated into full-blown theories of rights nowhere in evidence in their Bible. One does not successfully counter the left’s subjective notions of rights by offering, in their place, equally subjective appeals to faith.

That said, I want to focus at greater length upon the broader, more inclusive claims that “natural rights” are essences or elements of human nature itself. I do not accept that view, either. For me, rights are not aspects or parts of nature, or some sort of essences that exist in or arise from human nature.

Rather, I hold that rights are objectively derived moral principles.

What do I mean by that?

To illustrate: Does something called “honesty” exist in nature, as a kind of actual thing? Of course not. Honesty is an abstract moral principle, devised by men to govern certain kinds of actions. However, this moral principle is not subjective or arbitrary: It is rooted in objective facts. What facts? These: To survive and thrive, we humans must face reality—that is, face facts, and deal with them. Likewise, to survive and thrive within a human society, we must be truthful with each other. Why? Because civilized society rests upon mutual trust, and mutual trust rests in turn upon our honesty with each other. Without honesty and trust, all the values we gain from social relationships are threatened and undermined. If dishonesty and mistrust become the norm, civilization unravels. So, there is an objective, fact-based, life-serving need for us to uphold the moral principle of honesty—to root our social relationships in facts, not in fantasies, lies, and deception. It is therefore in our own natural best interests to uphold that principle firmly and consistently, as a “moral absolute” in normal circumstances.

But not in all circumstances. For instance, you don’t owe honesty to a criminal or dictator who is trying to harm you by force. The principle of honesty serves a vital purpose: It is meant to further our lives and well-being in social interaction. That principle can’t be applied unilaterally, in circumstances where our lives and well-being are being threatened by those who don’t recognize the principle of honesty—or any other moral principles—and who would use our honesty against us. Exercised unilaterally, honesty would assist aggressors and thus become a threat to our lives and well-being.

Here’s the point: We don’t live in order to practice honesty; we practice honesty in order to live. Abstract moral principles exist to serve our lives; our lives do not exist to serve abstract moral principles. The latter is a “platonic” view of principles—a view of principles as ends in themselves, rather than human life as an end in itself.

The same goes for the moral principle of individual rights. Like honesty, rights are not things that exist somewhere in Nature. They are moral principles, devised by men, but rooted in objective facts. What facts? These: To create and then survive and thrive in a human society, we need to view and respect each individual as an end in himself—not as sacrificial prey for others. Why? Because a predatory, kill-or-be-killed society is to no one’s long-term best interests. So, to avoid reverting to primitive savagery, we must recognize, as basic principles of social morality, that each individual has a moral right to live for his own sake (the right to life); a moral right to take non-predatory actions to further his life (the right to liberty); and a moral right to transform the resources of nature into the products he requires to sustain his life, including the right to keep, use, and/or trade such creative products with others (the right to property).

In other words, the moral purpose of the concept of rights is to establish essential moral boundaries among people, so that within his own personal boundaries each sovereign individual may act freely to support his own existence, well-being, and happiness. (This is what I understand Ayn Rand to have meant in her essay “Man’s Rights” when she defined a “right” as “a moral principle defining and sanctioning a man’s freedom of action in a social context.”)

That is the “natural,” objective source of the moral principles we call “rights.” And we need to hold these principles firmly and consistently, too, as “moral absolutes” in normal circumstances.

But again, not in all circumstances. For example, no concept of—or need for—“rights” would ever arise in the mind of a Robinson Crusoe living alone on a desert island, because there are no others present who could pose a threat to him, or argue with him about food and shelter and land boundaries. The moral issue of rights arises only in social relationships: only when other people are around to dispute or transgress upon the protective moral boundaries between and among individuals.

Also, the principle of rights cannot apply during catastrophes that break down all civilized boundaries and institutions—such as a war, when invading enemies transgress all boundaries and threaten all lives. Warfare is a crisis circumstance in which rights are under such direct and dire assault that they can no longer be applied and exercised by the combatants, and often by those caught in the crossfire. During such chaotic emergencies, the only moral mandate for those under attack must be to stop the aggressors, to end or escape the emergency situation, and to restore the moral order and normal civilized life. At such times, when the survival of the entire civilized framework of rights is at stake, it may temporarily become necessary for the defending forces to take drastic actions that transgress the rightful boundaries that normally apply among individuals—such as sending the defending army across private property to engage enemy forces, or enforcing curfews, or risking collateral harm to non-combatants by bombing the enemy. Horrible as these things are, the alternative is morally unthinkable: to let the aggressor prevail to harm and enslave all. The only options, then, are among degrees of short-term or long-term harm to individuals; and the ultimate long-term moral objective is to minimize and end that harm. So, the morally proper course for the defenders is to terminate the threat as quickly as possible, in order ultimately to restore and protect the rights of the threatened individuals.

I see the same principle applying during a deadly epidemic. In a situation where a potentially lethal virus is spread rapidly by individuals through normal socializing, it may become necessary—temporarily—to impose rational social restrictions in order to get the disease under control, or suppressed to at least a manageable level. Nobody has a “right” to engage freely in conduct that poses an unreasonable risk of harm to others. And during a deadly epidemic, that’s exactly what normal social behavior does. This does not mean a total, long-term lockdown of society, which would cause its own catastrophic harm and death. But prudent, temporary requirements, such as “social distancing,” wearing face masks in certain public areas, and short-term closures of places where people congregate, make sense—again, only until the disease is brought under manageable control (e.g., sufficient medical supplies and tests are available, hospitals and emergency services are no longer overrun, etc.).

To sum up: “Rights” are not arbitrary social privileges and subjective conventions; nor are they elements, aspects, or metaphysical essences existing within nature itself. What we call “natural rights” should be understood instead as moral principles, defined and applied by men, but arising from our identification of the objective, factual requirements of human nature in social relationships. To survive and thrive in society, we humans require moral boundaries to protect us from predatory aggression and to resolve disputed property claims peacefully. Rights are the moral principles we employ to establish such moral boundaries between and among individuals.

We can debate exactly how such principles apply, or where and when emergency conditions arise that might require temporary exceptions. But this view of the basis and meaning of objective natural rights is, I believe, rationally defensible. And it establishes firm moral-legal barriers to stop would-be predators, tyrants, and mobs.

(Copyright 2020 by Robert Bidinotto. All rights reserved.)

Independence Day 2016

Note: I posted this on my Facebook page on July 4, 2016. I neglected to post it here, but I would like to give this message a greater permanence than a passing comment on social media. Here was my message:

I AM TAKING THIS MOMENT to remember and honor what too many have forgotten: the idea that makes America unique in the history of the world. That idea -- embedded in our founding documents and defended with the blood of countless patriots -- is individualism. It is the moral principle that the individual is an end in himself, and not a sacrificial pawn of kings, dictators, legislative bodies, "majorities," or collective Society itself. And as a moral end -- not a mere means to the ends of others -- the individual has inviolate rights to his own life, and to the liberty to peacefully pursue his own happiness. Our Declaration of Independence celebrated not just an independence of colonies from another faraway country, but something far more profound: the independence of the individual from the forcible interference of others, no matter how great their number or "need."

That was the revolutionary idea underlying the American Revolution. Never before in the history of the world had that principle been recognized by any other nation or group -- which is why the history of the world is one of chronic, blood-soaked barbarism of man against man. The American conception of individual rights created the original "safe space": a moral barrier around each individual, a barrier against the force, fraud, and coercion of his fellow man. It declared him to be sovereign within that safe space, as long as he, in turn, did not use force, fraud, or coercion against others.

This idea -- even grasped and implemented imperfectly -- led to the creation of the greatest, most prosperous, most progressive (and I mean that word in its literal sense) society and economy in the history of the world. It created more opportunities for more people, higher living standards, and -- yes -- greater happiness than any society anywhere, at any time. America became a beacon of freedom and hope that beckoned to millions around the world, millions who uprooted themselves, crossed vast oceans, and came here with nothing in their pockets -- just for the chance to "make something of themselves."

America was the home of the self-made individual. It was a place where anyone could literally make and remake himself, becoming whatever he wished, without interference. All because of the principle upon which the nation was established: that the individual was a moral end in himself.

Barbaric tribalism is the default position of humanity. It is what happens quite automatically when the sovereignty of individuals is not respected and enshrined into law. Gang warfare is what happens when the social barrier to mutual exploitation -- the principle of individual rights -- is obliterated.

If we are now seeing a horrific, headlong reversion to barbarism -- abroad and here -- it's because generations of "intellectuals," chafing against legal limitations on their power over unruly individuals, have declared all-out war on the philosophy of individualism at the heart of the American project. They have looked at the achievements of individuals and proclaimed "You didn't build that!" and that "It takes a village," instead. They have glorified dictatorial philosophies and praised the thugs that imposed them on their societies. They have enabled, ignored, and rationalized inhuman savagery against millions of individuals. They have obliterated the idea that the individual is a moral end, in order to reduce him to a helpless means to their ends.

On this Independence Day, as we have fun with our friends, eat our hot dogs, and enjoy our fireworks, can we please pause to remember (if we were ever taught it) the true nature of the "independence" bequeathed to us by our ancestors? Can we grasp, if only for a single fleeting, quiet moment, the moral principle that made America distinctive, and then great? Can we soberly re-dedicate ourselves to that principle, and -- following the example of those who spilt blood for it -- vow to weave it anew into the fabric of our society and laws?

If you lack the self-esteem to do that for yourself, then do it for your spouse, or your kids. Or in memory of those heroes before us, who gave their lives, their fortunes, and their sacred honor so that their ungrateful children could enjoy lives better than their own.

How Government Created the Gay Marriage Controversy

There are many unrecognized implications of the June 2015 U.S. Supreme Court decision legalizing marriages between (among?) gay and lesbian (couples? groups?). I frame the ruling in those terms not to disparage loving relationships of any kind, but to raise a point lost in this ruling: essentially, the unintentional obliteration of "marriage" as a legal concept. Which is to me a good thing.

Like so many issues in which government (i.e., politics) is improperly involved -- education, agriculture, energy, housing, charity, etc., etc. -- the bitter, divisive social conflicts over "gay marriage" arise precisely from the very fact of government involvement in defining "marriage" in the first place. Why?

Because government -- that is, law -- is force and coercion. Government "solutions" to problems are inherently coercive impositions by some people (the politically dominant) on others (the politically subordinate). Such solutions never result in social harmony, peace, love, etc.; they only exacerbate social hostility, conflict, and division. They allow some people to "win," but only because they force others to "lose."

Force children to go to "public" (i.e., politically run) schools, and force taxpayers to pay for it? You will then pit taxpayers against each other over the content of that "education" (indoctrination), over schedules and hours, over homework, over grading systems, over teacher qualifications, over social engineering schemes (busing students all over the place to achieve racially integrated schools, etc.). over options for dissenters (home schooling, tax credits, vouchers, "magnet" schools, "charter" schools), over "reforms" (Common Core), over testing, etc. Everything concerning education becomes a political battleground...because of the conscription of children into politicized education, and the conscription of taxpayers to pick up the tab.

Put government into the agriculture business, or energy business, or auto business, or banking business, or ANY business, and what happens? You use force (the IRS extracting money from all taxpayers) to support crony businesses (e.g., politically connected ethanol agribusinesses, "green" windmill and solar panel manufacturers, GM and Chrysler, the big New York-based banks) over all their politiically unfavored competitors, who must fund, through taxes, their politically favored rivals.

Put government into the charity business -- all the programs of the welfare state -- and you undercut voluntary, private charity alternatives by sapping them of trillions of dollars of potential funds, which are taxed away from potential contributors. Simultaneously, you create what are called "moral hazards" by providing incentives for millions of people not to work or to solve their own problems, but instead to dump their endless claims of ailments, needs, wants, desires, whims ("Obamaphones"? Really?) onto their hard-working, taxpaying neighbors. Everyone resents this "spread the wealth around" process: those forced to foot the boundless bills, and those issuing endless demands of their "rights" -- i.e., their phony claims of "entitlements" against "society" (which means: their neighbors). In the redistributionist era -- as 19th century economist Frederic Bastiat famously put it -- "The state is that great fiction by which everyone tries to live at the expense of everyone else."

All of this stems from trying to use government -- law, politics, force -- to solve essentially personal or social problems. Politics invariably creates "win-lose" relationships, in which some people benefit but only at the expense of others. For every political beneficiary, there are victims. For every political winner, there are losers.

Now, let's contrast this world of politics and the "public sector" with the world of economics and the "private sector."

Imagine a world in which education were entirely privatized -- in which schools were like grocery stores, auto dealerships, bookstores, or any other private companies. No parents would be forced to put their kids into a school system they didn't like, with teachers they didn't trust, with curricula they loathed -- or to pay taxes to support such private companies. Just as you don't have to subsidize your local bookstore, grocery, or Ford dealer, you wouldn't have to pay for somebody else's school. With all the money you saved in school taxes, you could afford to send your kids instead to one of many competing private schools, with teachers you preferred, teaching courses you decided were most beneficial to your kids' futures. Or, you could homeschool them, utilizing course material from a host of competing sources, including online offerings. You would have no reason or motive to fight with politicized school boards and teachers unions over content, schedules, social-engineering fads, or anything else -- because you wouldn't be forced to be involved with any educational company except the one you freely chose. Imagine: No more wars with your neighbors and fellow taxpayers over textbooks, the teaching of Common Core or evolution or liberal propaganda or conservative propaganda, over teacher salaries and hours, over school taxes, over whether the building ought to have a new gym. You get to pick an educational company for your kids from a host of competitors, just as you pick your own car, your own grocery store, or your own TV provider. Ultimately, just as with those other companies, marketplace competition would determine which educational companies and options succeed. And unlike today's subsidized, bloated public-school monstrosities, those that succeeded would be those that offered the best educational value.

Imagine a world in which government were banned from any involvement with business -- a separation of Economics and State, for the same reasons that we have a separation of Church and State. Imagine businesses having to survive on their own, demonstrating their value to willing, paying customers in a competitive marketplace -- and not by forcibly extracting subsidies from taxpayers, via their crony relationships with politicians and bureaucrats. Imagine how much money would remain in your pocket if we shut down the Departments of Agriculture, Energy, and Housing & Urban Development (just for starters), gave pink slips to their thousands of meddling bureaucrats, and sent them off to seek productive jobs in the private sector. Would you care if somebody started a windmill firm or a bank or an auto company...if you weren't forced to subsidize or patronize it? Would you feel hostility and hatred and anger if your associations with them were not compulsory?

Imagine a world in which you got to keep vastly more of your own money -- and thus have the means and choice to fund your own preferred charities and social causes -- rather than being forced, by law, to subsidize (say) Planned Parenthood abortions, AIDS research rather than (say) cancer or Alzheimer's research, political agitation by ACORN, the politicking of environmental activist groups, the healthcare of illegal aliens streaming across unguarded borders, "voter enrollment" of those same illegals, mosquito control in Africa, typhoon relief in Bangladesh, "public broadcasting" and opera houses for upper-middle-class patrons who could easily afford to pay for their own entertainment, and on and on and on, endlessly. Americans are the most generous people in the world. But they are tired of being played for suckers, forced to fund the politically connected champions of "good causes" who get favored treatment by their friends in court. Does that mutual fleecing further social harmony, peace, love, and mutual respect?

The governmental (political) realm, run by force and coercion and taking, necessarily creates "win-lose" relationships. The economic (private) realm, run by free choice and voluntary association and trade, necessarily creates "win-win" relationships. Yet for many generations, people have been conditioned to seek coercive, political "solutions" to every social problem or personal need -- coercive, political "solutions" that only breed mutual hostility, disharmony, and hatred.

The "gay marriage" controversy is but the latest example of how social disruption has been manufactured -- not solved -- by governmental (political) involvement. The entire controversy stems from the fact that government has been involved in defining what a "marriage" is. 

But why? Why is that necessary? And what have been the consequences?

Government, as our Founders proclaimed in the Declaration of Independence, exists to "secure these rights" to life, liberty, and the pursuit of happiness. Period. Not to solve personal problems or social ills, but to protect individual rights. Not to take sides in disputes, but to be an impartial umpire.

Thus, there is a proper role for government (law) in recognizing and enforcing private contracts, and also in protecting individuals in relationships (spouses, children) from violations of their rights by other parties. But recognition and enforcement of private contracts, property arrangements, and the rights of spouses and children, do not require government (i.e., politicians and the force of law) to confer some kind of "legitimacy" on the ceremonial and symbolic aspects of a "marriage."

For all the reasons stated above, marriage should be privatized. A "marriage" should be defined and celebrated by the participants, according to whatever religious or philosophical values they ascribe to that state of long-term commitment. Politics should play no role in that determination whatsoever.

But ironically, the Supreme Court's ruling has -- unintentionally -- pointed us in that direction. Why?

Because (to paraphrase the classic line from the film "The Incredibles") if everything is a "marriage" under the law, then nothing is. The Court ruling and reasoning today opens the door not just to same-sex "marriages," but to polygamy, group marriages, and pretty much anything else. Who can now say that such arrangements are not "marriages," and on what grounds?

Liberals, wedded to governmental (read: coercive) "solutions" to all social problems, won't grasp any of this, sadly. They refuse to realize that their "solutions," rooted in seizing and wielding political power by themselves over others, cannot ever result in that woozy, utopian, John Lennon "Imagine" world of peace-and-love.

Liberals, above all, are complete captives to the zero-sum, class-and-racial warfare, tribal worldview: a social worldview of winners vs. losers, of powerful vs. powerless, of perpetual gang warfare in which each gang seeks power and advantage over its rivals. Economic ignoramuses -- who think every economic relationship is about some people taking from others -- liberals can't even conceive of peaceful, voluntary, trading relationships. They thus can only interpret free market capitalism through the distorting lens of "taking," of "exploitation."

Now, with this new Court decision, they will predictably try to use their new "marital rights" as a bludgeon against private individuals, businesses, and religious organizations that do not share their own elastic definition of "marriage." Rather than take this as an opportunity to celebrate live-and-let-live social arrangements, in which everyone can associate voluntarily as they choose, they will instead eagerly try to use the power of law to force and coerce any private, peaceful individuals who disagree with them to associate and deal with them -- to bake their wedding cakes, cater their weddings, provide venues for their ceremonies, even perform their ceremonies. Why? 

Because the main thing that "liberals" are "wedded" to is not some definition of marriage, but to their zero-sum, tribalist, coercive, us-vs.-them worldview. No, they don't really want peace and love and harmony: That's just their cover story.

They want power and control over others.

In short: Liberalism is sociopathy, masquerading as a political doctrine.

Yes, You Have a Right to Be a Bigot

In March 2015, a controversy roiled in Indiana over passage of the state's Religious Freedom Restoration Act. That divisive controversy is the latest fruit of a terrible legal precedent established during the Civil Rights era -- which was in turn based on terrible confusion and misunderstanding of the nature of "rights."

Protestors of the Indiana law (which in fact mirrors the federal RFRA law and similar laws in 30 states) claim that, by protecting the rights of (say) Christian business owners not to serve or deal with (say) gays, the RFRA violates the "right" of the latter to be served by these private businesses, without discrimination.

But does any such "right" exist? Let me attempt to untangle this mess.

Our individual rights have a moral basis: They are based on the moral premise that every individual is an end in himself -- not a means to the ends of others. Rights are moral principles established to institutionalize that premise as the basis for peaceful social relationships. Individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion.

Which brings us to the role of government. The Declaration of Independence states that the purpose of government is "to secure these rights" to life, liberty, and the pursuit of happiness. Government is established to protect these rights of individuals from acts of force, fraud, and coercion by others. And to enforce those protections of rights, government may use force and coercion only in retaliation against those who violate the rights of others.

In other words: Since government is an agency meant to protect the rights of all, and because it is funded by all, it therefore must afford equal legal protection to all. As an impartial umpire and protector, it cannot "play favorites" in its actions without operating unjustly.

To this end, the Civil Rights Act of 1964 did some very good things. In the Act, the Titles (or sections) numbered I, III-VI, VIII, and IX were aimed at ending discrimination on the basis of race, sex, and similar traits by government bodies, officials, and laws. For many decades before passage of the Act, various government bodies did operate unfairly and prejudicially, especially against blacks. Such officially sanctioned bigotry and bias was a moral and legal outrage, and it needed to be put to an end. So, these particular sections of the Civil Rights Act are rightly celebrated as a boon for the cause of individual rights.

However, Titles II and VII of the Civil Rights Act took matters a step too far. They banned owners of private property from exercising their own individual rights of freedom of association on and with that property. In other words, those sections violated an individual's right to choose his own associations, and on his own property, for whatever reasons (rational or irrational). 

To repeat: The basic premise underlying and justifying government and law is that each individual is an end in himself, not a means to the ends of others. But that very premise -- which demands that government act neutrally and impartially toward all -- also protects the right of individuals in the private sector to associate freely with whomever they wish, for whatever reason they wish. Those reasons don't have to be admirable. Let me be clear: I think that discrimination based solely on race or sexual orientation is disgraceful and stupid. However, it is an individual right to be a fool and a bigot.

To compel, by law, some legally specified people to associate with other legally specified people means that...

(1) the first group are not being treated as ends in themselves, but are being forced into the role of being the servants of others;

(2) the government -- which is supposed to be impartial -- is favoring the second designated group at the expense of the first; and

(3) the rights of individuals to peacefully use their private property as they see fit are to be subordinated to collective social purposes.

Ironically, (1) imposes "involuntary servitude" -- exactly what the 13h Amendment made illegal. From Wikipedia: "Involuntary servitude is a United States legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs." To compel a business owner to serve someone not of his free choosing meets the very definition of "involuntary servitude." That may include compelling (say) a Christian baker, who does not believe in "gay marriage," to provide pastries at a gay wedding reception. If you think that is okay, then what would you say if a white racist or -- even worse!!! -- a RICH CONSERVATIVE CHRISTIAN REPUBLICAN (say, Rick Santorum or Sarah Palin) demanded, under the same "non-discrimination" laws, that a liberal, Democratic, gay, female, African-American baker provide pastries for his or her daughter's wedding?


Ironically too, in the name of "non-discrimination," (2) lets the government coercively discriminate on behalf of some people over others in what otherwise would be private, voluntary relationships.

And (3) represents a de facto nationalization of private businesses. Ownership, by definition, means the right to freely and peacefully use and dispose of property as the property holder sees fit. But under those two titles of the Civil Rights Act, property is no longer to serve the individual ends determined by its owner; instead, it is now to serve the collective ends of his customers, by governmental decree. The businessperson's private property rights are thus subordinated to collective ends, just as the businessperson himself or herself is subjected to involuntary servitude on behalf of customers.

I said above that "individual rights prohibit one person from living at the expense of someone else by means of force, fraud, or coercion." To use force and coercion in order to compel the owners of private property to deal with or serve you, is a direct violation of the owner's individual rights.

The fact that these violations of rights are rationalized because they are "for a good cause" is irrelevant. Just as the First Amendment protects the free speech of individuals, even if we despise  what they say, so too does the rest of the Bill of Rights protect the freedom of business owners to hire or serve whomever they wish, even if we despise their specific hiring choices or service policies. The way to deal with bigots, in either case, is through boycott and ridicule -- which is perfectly within the rights of any protester.

But now, the law has been stood on its head: It has become a tool to discriminate against and violate the individual rights of people whom we don't like . . . perversely, in the name of "protecting rights" and "non-discrimination."

As I write, Republicans such Governor Mike Pence of Indiana are back-pedaling frantically, trying to rewrite Religious Freedom Restoration Acts so as to prohibit private acts of "discrimination." But in doing so, they are caving in to those who are using such demands to destroy what little is left of individual and property rights. And they are thus joining the mobs that treat individuals as nationalized means to social ends, and no longer as moral ends in themselves.

U.S. CONSTITUTION, R.I.P.

With this morning's 5-4 U.S. Supreme Court decision upholding Obamacare's "individual mandate," which will compel people to buy a product under threat of a tax penalty from the federal government, the U.S. Constitution is now essentially dead as a bulwark against incursions on individual liberty.

This is especially true when considered in the wake of the Court's much earlier 5-4 "Kelo" decision, which permits local governments to claim "eminent domain" as an excuse to seize private property from some individuals and transfer it to other private individuals (political cronies).

If the U.S. Constitution can be construed so as to permit government to force you -- under penalty of law -- to buy designated products from crony-capitalist companies, or allow it to simply take your private property and hand it over to politically connected cronies, then the Bill of Rights is a dead letter. Any way you cut it, today's ruling affirms the premise of collectivism over the rights of individuals. In essence, it says that the government, through legislatures, is in principle unconstrained in its power over the individual.

That this latest ruling was made possible only with the complicity of a pragmatic judicial "conservative," Chief Justice John Roberts, only underscores the philosophical chaos reigning in the nation today. It is so symbolic that the Court's left was united in their support of the mandate, but that the conservatives were philosophically fractured: That, in a microcosm, has been the case throughout our modern political history, which is why we see steady, inexorable triumphs by the political left.

I said before this morning's decision that the Court was likely to "split the difference" between conservatives and liberals in their decision. I was too optimistic: This decision was a complete surrender to the united far left of Court. The reason is this: Conservatism has never been a coherent political philosophy, rooted in a defined, consistent set of principles. There are as many varieties of "conservatives" as there are vegetables in a supermarket. Without any definite grounding in specific principles, conservatives in practice typically wind up compromising and "splitting the difference" with the left...which is committed to a specific principle: to the subordination of the individual to the state. Statism is the uncompromising principle of the left; statism is the principle underlying the "individual mandate"; and statism is the principle which Chief Justice Roberts joined the Court's liberals in championing today. (See my award-winning essay "Up from Conservatism.")

The only thing that could have spared America this sorry day would have been a commitment by a Court majority to the premise of individual rights: to the view that individuals are ends in themselves -- not mere means to the ends of some tribal collective, ends imposed by the brute power of the state. That was the Enlightenment view held by our nation's Founders, and by the Framers of the Constitution, who intended that document to be a barrier to the unlimited exercise of power by the state over individuals. Well, that view, and that document, have been obliterated today.

Do we still have liberties that we can exercise? Yes, in many respects, but only by sufferance of our rulers and by the accidents of the political process -- and no longer by legal right. The only thing that we can do now is to fight endless political and legislative battles for supremacy over the statists, but unsupported by the legal framework and precedents bequeathed to us by our forefathers.

We can begin those battles in earnest this November.

UPDATE. After having a day to peruse many commentaries about the decision, I wanted to add this about the legal travesty that just occurred.

During the legislative debate, Obama and the Dems explicitly denied that the individual mandate penalty in Obamacare was a "tax." They always referred to it as a "penalty" and a "fine." They knew that, politically, passing a giant "tax" on the middle class would be suicidal. And in fact, they never used that term anywhere in the bill.

Moreover, on the first day of oral arguments before the Supreme Court, the government lawyer, the Solicitor General, also denied that it was "a tax" under the Commerce Clause. Why? Because on legal grounds, if it was a tax under the Commerce Clause, it would run afoul of another federal law: the Anti-Injunction Act. That Act would render such a tax illegal, and therefore, Obamacare would have to be rejected as unconstitutional.

But...on the second day of the hearing, the government was also permitted to argue that it was "a tax" -- under the "taxing power" clause of the Constitution. In other words, the government was allowed to argue, simultaneously, that the "fine" was not a tax, but also that it was a tax!

In his Supreme Court opinion, Chief Justice Roberts discarded all those facts. Even though the Congress that passed Obamacare had explicitly, repeatedly denied that the fine was "a tax," and Obama (who signed it) explicitly, repeatedly denied it was a tax, Roberts arbitrarily seized upon the cynical last-minute argument from a government lawyer that it was a "tax" in order to rule that Obamacare's individual mandate was permitted under the Constitution.

Here is what Roberts actually wrote: "Under [my] theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income."

"THEORY"???

That the federal government could tax inactivity?

This is the same John Roberts who -- earlier in his same opinion -- wrote: "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."

So, like the government attorneys, Roberts also was arguing out of both sides of his pen. He argues that government has no power to "compel " commerce with a "fine"; yet a few pages later, he says the government has the power to do exactly that: force people to engage in "commerce" (buy insurance) or else be hit with a whopping fine (which he arbitrarily calls a "tax").

This was a breathtaking, completely unjustified, fraudulent stretch of law and logic that nobody anticipated. And Roberts's "reasoning" incensed the four dissenting Justices, as a potent Wall Street Journal editorial points out:

In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it.... One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying 'verbal wizardry too far, deep into the forbidden land of the sophists."

In other words, as Rush Limbaugh put it, "the whole thing is a fraud." Trickery was used at every turn to push Obamacare through Congress; fraud was now used to uphold it in the Supreme Court.

And no less a figure than the Chief Justice of the U.S. Supreme Court has made the fraud possible.

The U.S. Constitution has been left in tatters. In Limbaugh's term, no longer is there a legal "backstop" to protect individual rights. If courts can simply invent, out of cloth, language and arguments that don't even appear in the laws they are adjudicating, and if those laws can swipe and transfer property, or compel you to buy government-mandated products, with no legal recourse or Bill of Rights protections, then the Constitution is -- just as I said -- truly a dead letter as a limitation on governmental power over the individual.

UPDATE #2: Chief Justice Roberts actually was AGAINST the individual mandate before he was FOR it, according to reporting by CBS. Along the way, he changed his mind, sources tell CBS, because he was worried about "public opinion" -- meaning: what politicians and the media would think of him and the Court. Read this and weep. Specifically, this is truly sickening:

"Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

"Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

"But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

"There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

"Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

"It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

"It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation....

"Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as 'arm-twisting'....

"The fact that the joint dissent [by the conservative Justices] doesn’t mention Roberts’ majority [opinion] was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him."

Folks, what Roberts did is the complete antithesis of the rule of law -- the premise that we should be a nation "of laws, not of men." The "absolute" governing his ruling was not his oath of office "to preserve, protect, and defend the Constitution of the United States," but public opinion.

But if public opinion is to govern the nation without limit, then why bother having a Constitution or a Supreme Court at all? In pandering to public opinion, Roberts achieved precisely the opposite of his apparent goal: He has delegitimized the reputation of the Supreme Court.