Rights, Responsibilities,
and Communitarianism

Stipendia enim peccati mors.
For the wages of sin is death.

Romans 6:23

From wealth () does not come virtue (),
but from virtue comes wealth and the whole of other goods ()
for men, private () and public ().

Socrates, Plato's Apology of Socrates, 30b

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 to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it...

Thomas Jefferson, "The Declaration of Independence," 1776

Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our souls are now [i.e. under a State religion note]. Thus in France the emetic was once forbidden as medicine, the potato as an article of food.

Thomas Jefferson, "Notes on Virginia," 1784

A prohibition law strikes a blow at the very principles upon which our government was founded....Prohibition goes beyond the bounds of reason in that it attempts to control a man's appetite by legislation, and makes a crime out of things that are not crimes.

Abraham Lincoln

Everybody has asked the question. . ."What shall we do with the Negro?" I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature's plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!

Frederick Douglass, "What the Black Man Wants"

The State...stands between me and my body, and tells me what kind of doctor I must employ. When my soul is sick, unlimited spiritual liberty is given me by the State [note]. Now then, it doesn't seem logical that the State shall depart from this great policy...and take the other position in the matter of smaller consequences -- the health of the body....Whose property is my body? Probably mine....If I experiment with it, who must be answerable? I, not the State. If I choose injudiciously, does the State die? Oh, no.

Mark Twain, in "Osteopathy," 1901

While the Opium Registration Act of December 17, 1914, may have a moral end, as well as revenue, the court, in view of grave doubt as to its constitutionality except as a revenue measure, construes it as such.

United States Supreme Court, United States v. Jin Fuey Moy, 1915

Against individualism, the Fascist conception is for the State; and it is for the individual in so far as he coincides with the State.... Liberalism denied the State in the interests of the particular individual; Fascism reaffirms the State as the true reality of the individual.

Benito Mussolini, Fascism:  Fundamental Ideas

The greater the readiness to subordinate purely personal interests, the higher rises the ability to establish comprehensive communities.... This state of mind, which subordinates the interests of the ego to the conservation of the community, is really the first premise of every truly human culture.

Adolf Hilter, Mein Kampf, Chapter 11, Ralph Manheim translation

What matters is to emphasize the fundamental idea in my party's economic program clearly -- the idea of authority. I want the authority; I want everyone to keep the property he has acquired for himself according to the priniciple:  benefit to the community precedes benefit to the individual. But the state should retain supervision and each property owner should consider himself appointed by the state. It is his duty not to use his property against the interests of others among his own people. This is the crucial matter. The Third Reich will always retain its right to control the owners of property.

Adolf Hilter, 1931

If we are to go forward we must move as a trained and loyal army willing to sacrifice for the good of a common discipline, because, without such discipline, no progress is made, no leadership becomes effective. We are, I know, ready and willing to submit our lives and property to such discipline because it makes possible a leadership which aims at a larger good.

Franklin Delano Roosevelt, First Inaugural Address, 1933

When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving [sic] a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly... that they would work for the common good, as well as for the individual welfare... However, now there's a lot of irresponsibility. And so a lot of people say there's too much freedom. When personal freedom's being abused, you have to move to limit it.

Bill Clinton, April 19, 1995,
after the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, two years after the massacre of the Branch Davidians at Waco

A decent society is not based on rights; it is based on duty....Our duty to one another...To all should be given opportunity; from all, responsibility demanded.

Labor Party Prime Minister Tony Blair, elected 1997
[Washington Post, November 9, 1997]

The aim of untold millions is to be free to do exactly as they choose and for someone else to pay when things go wrong.

In the past few decades, a peculiar and distinctive psychology has emerged in England. Gone are the civility, sturdy independence, and admirable stoicism that carried the English through the war years. It has been replaced by a constant whine of excuses, complaints, and special pleading. The collapse of the British character has been as swift and complete as the collapse of British power.

Theodore Dalrymple, Life at the Bottom, The Worldview That Makes the Underclass [Ivan R. Dee, Chicago, 2001], p.5

Sometimes so many people seem to be screaming about their rights, while neglecting to answer to their responsibilities, that many of us may become completely disgusted with the whole discourse of "rights." A whole movement exists, billing itself as "Communitarianism," that promotes an effort to restore the notion of responsibility and to establish a balance both between rights and responsibilities and between individuality and community. There has actually been talk of building a "Statue of Responsibility" on the West Coast as the counterpart of the Statue of Liberty in New York harbor. The movement is spearheaded by sociology professors Robert Bellah, in Habits of the Heart, and Amitai Etzioni, in The Spirit of Community. Their viewpoint is shared by many others, including historian Garry Wills; and it is reflected in the title of Hillary Clinton's book on the responsibilities of government in child rearing, It Takes a Village.

Communitarians, however, promote a certain view of rights and responsibilities that is quite different from that of John Locke, Thomas Jefferson, James Madison, etc. It is more in the tradition of G.W.F. Hegel, where the community, or the state, is more real than the individual and the individual who does not fit in with the social norms or the law is objectively irrational. Hegel has been regarded, justly, as the father of modern totalitarianism. How different these attitudes are comes out in the Communitarian treatment of things like seat-belt and motorcycle helmet laws. Etzioni would deny to the automobile or motorcycle rider the right to decide for themselves whether to wear seat-belts or motorcycle helmets because, if they are injured, the public is liable to end up paying for their injuries. Thus the riders have a duty to protect themselves in such a way as to not impose a burden on the public through their injuries.

This is interesting reasoning, for the denial of the right of choice about seat-belts and motorcycle helmets is really predicated on the concession of another right: that the injured riders have the right to be treated at public expense. The claim of that right is then used to deny the other [note]. The question is not even asked: do those who don't want to use seat-belts or motorcycle helmets really want their liberty curtailed for the privilege of their injuries being treated at public expense? Evidently they are not even asked. The consequence, then, is not that Communitarians want to balance rights and responsibilities; it is that they want to deny certain rights in favor of certain other ones, without asking whether that is the particular choice other people really want to make [note].

The rights that Communitarians seem to prefer curtailing are what traditionally are called "liberties," and the rights they seem willing to sacrifice those to are what traditionally are called "powers" or "privileges." A "right" can mean a number of things. The following diagrams (versions of the logical Square of Opposition) show the relationships between different kinds of rights:

Rights, liberties, powers, and immunities are all kinds of "rights." Most importantly, each kind of right implies a certain kind of liability in others, and each kind of right also has its opposite form of liability. Thus a "right," plain and simple, always implies some duty in others: they must observe your right through some kind of appropriate behavior or recognition. Thus, if you have a "right" to have a job, it is going to mean that someone is going to have the duty of giving you a job. A "responsibility" is a duty [note]. What we can call the responsibility to take care of one's own interests really means a duty not to be a burden to others, which means a duty not to use them by trying to fraudulently impose a non-contractual duty of commission on them.

The opposite of a "duty" is a liberty, which means that there are no rights of others that need be observed in a particular case. A liberty is a right to act without restraint, which means that a liberty implies no right in any other -- bringing us back to the opposite of a right. Similarly, in the other diagram, a "power" [note] is the ability to change the legal status of something or force a legal compliance in another. A power thus implies a liability in another, that they must recognize or comply with the power exercised upon them. The opposite of a "liability" is an immunity, which is an exemption from being subject to someone else's powers. An "immunity" implies a disability in another, that they are without a power to affect the immune person in that case. Since liberties, powers, and immunities are all rights, any right may be said, after a fashion, to imply certain duties, liabilities, or disabilities in others.

In the case of the seat-belt and motorcycle helmet laws, the conflict is between a "liberty" to use one's own judgment and be responsible for one's own injuries, and a right or a power to be treated at public expense, which imposes a duty or liability on the public to do that. Communitarianism wishes to deny the liberty and give to the public (the "community") the power to regulate the behavior of individuals (impose disabilities) in order to limit public liabilities. That is the point: the Communitarian emphasis on the "community" makes everyone a ward of the community and responsible to the community, rather than their own keeper and responsible to themselves for their own actions. This is not a "balance" between individualism and community; it is a historic reversal of the manner in which mediaeval society, in which everyone was a ward of the King and/or the Church, was replaced by modern conceptions of autonomy and freedom.

This also comes out in the Communitarian attitude towards the War on Drugs. Etzioni says that drugs cannot be legalized because the laws "communicate and symbolize those values that the community holds dear." Repealing the drug laws would send the message that "the community approves of people being in a drug-induced stupor." This is a common response from both Conservatives and Liberals; but it is not right. The proper role of the laws is to forbid and punish judicial wrongs (of negligence, violence, and fraud) and protect judicial rights (of person, property, and contract). The law should not be used to send any "messages," especially messages that reflect moralistic views of prudential virtues as imposed by the tyranny of the majority. The absence of drug laws does not mean that drug usage is endorsed or promoted. Frederic Bastiat addressed this issue in relation to socialism in his 1850 classic The Law:

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Similarly, just because we disapprove of the government attempting to forbid imprudent or self-destructive behavior, this does not mean that we approve of that behavior.

The emphasis of the authors of American Independence and of the Constitution was clearly on the liberties of individuals, who were responsible for themselves, and not on the powers and liabilities of the community to be responsible for individuals. Their emphasis on Liberty contrasts with the typical emphasis of older societies, which was on Duty -- still the keynote even in a generally liberal thinker like Immanuel Kant. The Preamble of the Constitution thus says that it is intended to "secure the Blessings of Liberty to ourselves and our Posterity." The Communitarian emphasis on positive responsibilities to others, rather than on the mere negative responsibility not to be a burden to others, thus sounds like a return to the traditional emphasis on Duty.

The Communitarian pitch to balance rights and responsibilities thus masks an attempt to shift the basic nature of rights and responsibilities from individuals to the community, i.e. to the state. They can always refer to the clause in the Preamble that says to "promote the general Welfare" -- regardless of whether particular individuals want their welfare promoted by the state, as it sees fit, or not. Unfortunately, the people who often do seem to be screaming about their rights all the time, seem mostly to want to have it both ways: to have the liberties of individualism and to impose liabilities on the community for the errors in judgment and action that they make [note]. What needs to be made clear to people is that they cannot have it both ways. The Communitarians, in turn, don't seem to understand that there is a choice: they would just as soon strip individuals of their liberties every time there is a conflict with communal power and liability.

Behind the Communitarian shift of power to the state is a certain distorted preference about what a "community" is: Communitarians distrust and dislike voluntary communities. Robert Bellah especially believes that the only true community is one created and controlled by democratic political power, which also happens to mean that of the largest political unit possible. To him, small units, whether voluntary associations or smaller units of government, do not represent enough of "the People" to properly represent the General Will (as Rousseau would have said) of the Community. This is an amazingly credulous, dangerous, and naive view of the benevolence of democracy and of large government. What it reveals is that Communitarians are not basically advocates of real community, but they are statists and collectivists who confuse their own benevolent intentions, if they were in power, with what such a government would be like operating under the incentives for corruption that are created in the sort of unrestrained and absolutist, indeed totalitarian, government that they desire.

No "community" worth the name is founded on anything other than voluntary association. An interesting example is the mediaeval Jewish community. Most Jews in the middle ages lived in countries with Christian or Moslem majorities and governments. No Jew could be forced to remain a Jew, because all that a gentile government needed was the slightest hit that a Jew wanted to convert to Christianity or Islam and it would use, literally, all means necessary to "rescue" that potential convert. Such governments also provided various incentives for conversion, including greater freedom and security and more moderate taxation. Nevertheless, not only did the Jewish community survive (though there were many conversions), but the community also assessed contributions from its members to take care of its own. Such contributions, then, could only be enforced by persuasion. But that was a very effective means of enforcement, since the Jewish community mostly succeeded in taking care of its less fortunate members. Certainly nobody else was going to.

It is particularly sad, then, when many people in the 20th century (including Jews) look at something like the mediaeval Jewish community and think that it is precisely the same thing to use the power of government to care for society in the same way. It is not the same thing, because the power of government means the police. As George Washington himself said: government is not reason; it is not persuasion; it is force -- like fire, a dangerous servant and a terrible master. Community, in short, is not the State. The Communitarians don't seem to realize, or perhaps they do, that trying to create a "community" by the threat of the police kicking down people's doors, to enforce the laws and taxes dictated by the "habits of the heart" of people like Robert Bellah, does not create a "community" but instead a police state and a prison for anyone who isn't 100% in tune with the crowd of demagogues returned by the latest election. Thus the columnist Alexander Cockburn, although himself a strange kind of civil liberties Leninist (not realizing that is a self-contradiction), aptly parodied the title of Hillary Clinton's book, It Takes a Village, as It Takes a Police State.

No, the "heart" works by love and persuasion, not by force, by a free and voluntary community, not by government; and the Communitarian view that small and voluntary associations won't do the right thing by the community really means that they don't trust what anyone will do until they themselves have the absolute power, in the name of the "People," to control society the way they see fit. Since what they also want to do is control private property and "redistribute" income, it should be clear that they are not new, non-partisan lovers of Community but really very old, very remorseless leftists who love power and hate capitalism in the very same ways that they have all this century [note].

What the shift from individual to communal rights also also amounts to is a shift from duties of omission to duties of commission. Thus, Communitarianism results in a new version of moralistic altruism and a new version of the feudal values that were replaced by capitalism. The "right" to medical treatment at public expense, regardless of one's own imprudence (smoking, drug usage, drag racing, sky diving, coffee spilling, etc.), imposes a positive duty of commission on others to provide, or at least to pay for, that treatment. On the other hand, the liberty to behave imprudently only imposes the negative duty to be left alone. The shift from one kind of right, the liberty, to the other, the power of compelling treatment, increases the power of individuals to compel positive action in others. Thus, while the authors of American Independence typically emphasized Liberty, recent political discourse is dominated by talk about "empowerment" [note]. Since an unlimited version of individual power is insupportable, the Communitarian answer, in turn, is not to strike out the new powers as cases of moralistic altruism, but to add new powers to the state to limit original individual liberties, like the liberty to be imprudent, in order to limit the state's new liabilities. The exchange in the end is the age old Satanic bargain of trading freedom for security -- real freedom for the security promised by the state. That security, of course, relies on the power of the state to compel others to do its bidding, i.e. its power to enslave the persons and loot the wealth of others. Since the others do not enjoy being enslaved and looted, their productivity declines and the value supplied by the state's promise of security declines as well. All that such a system can do, as Fidel Castro does to the Cubans, is to browbeat the people for their lack of selfless ardor and exhort them to greater sacrifices for the common good, i.e. goods for others that they will mostly never see, except what they see turning up in the flourishing of those privileged with political connections.

While movements like Communitarianism are trying to replace responsibility to self with responsibility to the state, on the grounds that this is responsibility to others, the very idea of personal responsibility has been damaged by the idea that the causes of people's actions are exculpatory (i.e. absolve us of responsibility) before the law. It has become rather common lately both to excuse the perpetrators of crime because they couldn't help themselves (because of "anger," etc.) [note] and to blame some remote conditions (poverty, capitalism, child abuse, television, drug abuse, pornography, video games, etc.) for the perpetrator's actions. There are two deeply malicious consequences to these views:

  1. They are profoundly dehumanizing. Holding someone responsible for their actions is to credit them with the dignity of free will, whether the effect of this is either praise or blame. The opposite is to reduce them to a mechanism -- a machine that must be fixed or a computer program that must be rewritten. They become a link in a chain, where all the links are open to our tinkering so that the chain comes out the way we would like it. (Just who the "we" is supposed to be liking it is a good question.) This is deeply depersonalizing. Criminals become rats in cages watched over by behavior modification specialists. Even the death penalty is more humane than that: at least the death penalty is the ultimate "the buck stops here" attribution of responsibility. Most arguments against the death penalty presuppose that the only real argument for the death penalty is "deterrence"; but that stacks the deck. "Deterrence" is about tinkering with causes and motivations. Death is about retribution. Whether there should be a death penalty or not, that is the point on which the arguments speak past each other: all judicial penalty must be about retribution first of all, because that is the essence of holding someone freely responsible for the crime. All other issues -- restitution, rehabilitation, remorse -- are secondary and dependent.

  2. They launch the law onto a sea of hypothetical uncertainties. The causes of things are usually concealed from casual inspection. Finding them out is what science is for, and it is not surprising that it took 4500 years of human history for science to find its feet and really begin to discover the inner workings of nature. It is still a process, as Karl Popper puts it, of "conjectures" and "refutations." That is what a scientific theory is: a conjecture. Some theories, at this point, seem to be things that we can trust in with some confidence; but it is much clearer now than it was fifty years ago that science is not just a simple march from ignorance to certainty. Indeed, the insights of Popper and Thomas Kuhn are that every scientific "conjecture" inevitably contains preconceptions and prejudices that are not easily weeded from the theory. That is unavoidable. But where Bacon had wanted to say that all prejudices are bad as such and must be avoided, we can say now that, not only cannot they be avoided, but that even the lamest prejudice sometimes actually turns out to be true. In light of this, however confident or distrustful we may be of science, it is in any case a weak reed upon which to begin manipulating, punishing, exhorting, and coercing people because of theories about the causes of criminal behavior. The way that science gets used in such projects is almost always shallow and credulous in the extreme: if scientific theories or results support some political agenda, then they are simply True; but if they begin to contradict it, then suddenly science contains all these vicious prejudices and preconceptions (!) and perhaps is even wholly unreliable and discreditable because of some underlying agenda. The most amazing move is when scientific truth is seen as inherently a matter of power politics, for that leaves knowledge of causes in general as a pawn of power and political ideology -- which means we can just believe whatever we want to, given our own particular grievances with things, and then call it our "science." The tough bullet to bite is that all such triumphant or recriminating uses of science are irrelevant if the causes of behavior, apart from out and out insanity, are simply irrelevant to the law.

The Bill of No Rights


Political Economy

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Copyright (c) 1996, 1997, 1998, 1999, 2001, 2002, 2005, 2009, 2011, 2013, 2016 Kelley L. Ross, Ph.D. All Rights Reserved

Rights and Responsibilities, Note 1

Virginia at the time had a tax supported Established Church which people were required to attend under threat of legal punishment. Jefferson's own "Act for establishing Religious Freedom" was proposed in 1779 but not passed until 1786, when Jefferson was already American ambassador to France.

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Rights and Responsibilities, Note 2

Note Twain's incautious language. According to the theory of the Declaration of Independence and the Bill of Rights, liberties are not "given me by the State." Instead the State recognizes natural rights, which preëxist it, and indeed the State only exists in order to guarantee those rights. Were a government to become "destructive of these ends, it is the right of the people to alter or to abolish it," as Jefferson wrote in the Declaration.

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Rights and Responsibilities, Note 3

As the public expense of medical treatment is now being used to attack tobacco [as this was written in 1996]. Various States are suing tobacco companies to recover the medical costs States are paying for the treatment of tobacco related diseases. On this theory, citizens are not responsible for the expense incurred when they engage in dangerous activities, viz. tobacco smoking; and since it is the tobacco that causes the disease, the supplier of the tobacco should pay for the treatment. This kind of theory clearly would impose limitless and insupportable liabilities on the tobacco industry, or require them to raise the price of tobacco products beyond what the market might support. In either case, it could drive tobacco out of business -- at least out of legal business. At the same time, if nicotine is declared a drug by the FDA, as the head of the FDA has proposed himself, the FDA cannot approve drugs that are not "safe and effective," which means it would have to ban tobacco. Again, tobacco would be out of business, which one assumes is the ultimate purpose of all the political action against it.

Political activity against a popular drug began, of course, with alcohol. Interestingly, the "Women's Christian Temperance Union," which, spearheaded by Carry Nation (1846-1911), successfully led the drive for alcohol Prohibition in the United States, actually still exists. On Monday, July 8, 1996, the Los Angeles Times printed a letter from Paul B. Scott, a "Public Relations Consultant" for the Union, applying the "cost to the public" theory used against tobacco to alcohol itself. Scott says: "The alcohol industry can never make restitution for all of the social consequences of its products but it should be made to pay for the medical costs it creates." Once tobacco is destroyed, one supposes, the next target, on the same principles, will be alcohol again. The theory has already been floated that perfume causes allergic reactions in some nearby people, so it could be the next target.

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Rights and Responsibilities, Note 4

When I was growing up and my parents would visit San Francisco, and I was old enough to do it, I enjoyed riding the cable cars. In those days, in the early 60's, people just jumped on and off the cars as they slowly made their way up and down the hills. We can see people doing this in old movies. I think that these casual practices continued when I was even older, visited the City on my own, and rode the cars in the early 70's.

At some point when I returned to San Francisco, perhaps in 1980, the City had decided that people should only board or leave the cars at designated stops. Doing otherwise resulted in stern rebukes from the drivers or conductors. Also, hanging off the cars, or other behaviors, where one might get hit by a passing automobile, obstruction, or other cable car, was similarly subject to scolding. At the same time, the use of the cable cars seemed to have increased; and one often had to wait in long lines at Market Street or near Fisherman's Wharf to board a car. A lot of the fun had been taken out of it all.

Now, not much can be done about the popularity of the cable cars. You cannot simply add cars to absorb the riders since the cables that pull them can only take so much of a load. The other features of recent history, however, are a different matter. Obviously, jumping on and off the moving cars is a little dangerous. It is not hard to imagine someone falling, getting hurt, and then being told by a tort lawyer that the City of San Francisco is liable for damages because you were allowed to engage in dangerous behavior.

This has become a significant way in which freedom is lost. People engage in foolish behavior, or even mildly risky behavior, and then they expect someone else to pay when things go wrong. Or, worse, they are told (by the tort bar) that someone else should pay, after which judges and juries end up going along and rewarding absurd damages. Someone, indeed, should advise such juries that they are thus tossing away their own freedom. If people are no more responsible than children, then they will be treated like children. No more jumping on the cable car in mid-block. No more running with scissors.

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Rights and Responsibilities, Note 5

Since "response" means a reply, "responsible" originally meant "liable to be called on to answer," i.e. accountable. From this came both the old expression "responsible government," which meant government that had to account for its doings, and the original meaning of the word "irresponsible," which was just "unaccountable." One is answerable or accountable for what one has the duty to perform.

Now "accountable" and "responsible" have become slightly different since the meaning of "responsible" has become different: "responsible" now usually just means "conscientious," that you take care to execute your "responsibilities," i.e. duties, faithfully. Some people water this down enough that "taking responsiblility" has come to mean no more than acknowledging that one did something, or that one feels good about it, not that one is really answerable or accountable for it, or even conscientious. "Irresponsible" now usually means a failure to act conscientiously, but the weakest sense of "taking responsibility" now has come full circle to the original meaning of "irresonsibile," free of accountability.

Duty and accountability imply possibly adverse judgments against one's behavior, and the theory of "taking responsibily" is often hostile to the existence of standards of duty and judgment. Ronald Reagan "took responsibility" for the Beirut Marine terrorist bombing, as Janet Reno and Bill Clinton both "took responsibility" for the Waco massacre of the Branch Davidians, but the intention and effect of all their actions was to abolish consequences and accountability for themselves.

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Rights and Responsibilities, Note 6

Or "privilege," as the 14th Amendment forbids the States from passing laws "which shall abridge the privileges or immunities of citizens of the United States." The unamended Constitution itself says (Article IV, Section 2):  "The Citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several States." "Privilege" could to be interchangeable with "liberty" or "power." The great English jurist, William Blackstone (1723-1780), whose Commentaries on the Laws of England formed the basis of American understanding of English Common Law, defines the terms thus (boldface added):

The rights themselves, thus defined by these several statutes, consist in a number of private immunities; which will appear to be indeed no other, than either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience; or else those civil privileges, which society hath engaged to provide, in lieu of the natural liberties so given up by individuals.

Thus, "immunities" tends to cover natural rights that are retained pretty much in their original form. The right to self defense would belong in that category. On the other hand, "privileges" are rights (as powers) that substitute in a civil form for certain other natural rights which are not retained in their original form. An example of that would be a natural right to retribution through revenge, which is surrendered for a civil power, or privilege, to seek redress for wrongs and retribution through judical proceedings. Punishments for wrongdoing are then applied by a presumably dispassionate authority, whose judgment will not be distorted by personal grievance. A fairly clear boundary can then be drawn between just retribution and revenge, where in the state of nature that would be very difficult.

Today "privilege" is usually contrasted with any kind of "right," in the sense that rights are natural and inalienable while privileges are granted, contingent, and revocable, as most States say that a driver's license is a "privilege, not a right"; but we see James Fenimore Cooper, in his The American Democrat, using the expression "inalienable privilege," which shows that our contrast between "rights" and "privileges" is quite recent. A power as a privilege thus would be very different from a power as a right, and care must be taken with this ambiguity.

The ambiguity, however, goes back to "right" itself in Latin, jus, which originally just meant a legal claim, whether a right, duty, or privilege, without all the "human rights" furniture that has been added since Locke and Jefferson. A similar ambiguity turns up in French, where droit can mean either a "right" (as in les droits d'homme, "the Rights of Man," or the droit du seigneur, which meant the right of a lord to sleep with any new bride among his vassals) or a "duty" (as in Dieu et mon droit, "God and my duty," the motto on the arms of the Kings and Queens of England). That could be confusing! Both "right" and droit originally just meant "straight" and so implied any kind of moral or legal correctness.

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Rights and Responsibilities, Note 7

An infamous recent case (Liebeck v. McDonald's Restaurants) involved a woman, Stella Liebeck, who had bought a cup of coffee from MacDonald's and then spilled it in her lap in her car. As the coffee soaked into her clothes, she was badly scalded. Her lawyers argued that MacDonald's was negligent because they sold coffee at 180oF, which they knew would be scalding if spilled. They won a large settlement, $2.9 million, for the woman -- although reduced by the judge to $480,000.

On the other hand, since most people boil water to make coffee and tea, and water boils at 212oF, one would think it common knowledge that scalding is possible from hot coffee or tea and that MacDonald's could assume that people would be as careful with coffee purchased from MacDonald's as with that made at home. If that assumption is negligent, then one is left to wonder what the next step in Communitarian reasoning would be:  If people cannot be given the liberty to decide about motorcycle helmets or cable cars, because the public would be liable for their injuries, then certainly people cannot be allowed to boil water at home, since the public would be liable for injuries people might incur by spilling the 212oF water (or coffee or tea) on themselves. Don't laugh. A lawyer is thinking about this right now -- although it is not clear who the deep pocket would be that the lawyer could sue.

Lawyers and activists continue to be perplexed by common sense in the Liebeck case. There is a 2011 documentary, Hot Coffee, directed by Susan Saladoff [HBO Documentary Films], which seems to assume that McDonald's was, of course, responsible and liable for Liebeck's injury, with the case standing as a symbol for corporate malevolence and the legal vulerability of consumers.

Most people, however, have no difficulty understanding the bogus legal principle that has now been promoted in tort law, that the reasonable safety of consumers products (such as hot coffee) is not enough:  the products must be made idiot proof, which means that they must remain harmless even if they are misused or the consumer is careless with them. But if McDonald's cannot safely sell hot coffee, how can we allow the sale of, for instance, chain saws, which are dangerous instruments unless used with the greatest care? The notion has become popular, however, that there must be someone with deep pockets responsible and liable for any harm that befalls anyone, regardless of their contribution to that harm.

The Bill of No Rights

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Rights and Responsibilities, Note 8

Closely associated with Communitarianism and with these features of it is Michael Lerner, the editor of Tikkun magazine and the rabbi of a San Francisco Jewish congregation. Lerner's ideas he calls the "Politics of Meaning," and for a while after the election of Bill Clinton in 1992, he had the ear of Hillary Clinton and was publicly being caller her "guru." However, that did not last, probably because Lerner was unable to tone down his rhetoric and it quickly became clear how radical and leftist he was.

The "meaning" Lerner was talking about was clearly any meaning that was contrary to the principles of private property or the free market. A characteristic piece was a column Lerner wrote about the riots in Los Angeles in 1992, published as a "Column Left" in the LA Times. His problem was not with Rodney King or police brutality. Instead he drew a comparison of the looting carried out by the rioters with capitalism itself: "Looting is the dominant way of life in America"...."the unfair appropriation of [sic -- and?] random destruction of the collective goods of others for the sake of personal and private benefit." How it is the "collective goods" are being "unfairly" appropriated is unclear, unless Lerner simply doesn't believe in private property. And if the appropriation of any goods for "the sake of personal and private benefit" is unfair, then he clearly believes that society should be run by political means, by people like him, for the presumed benefit of all. Lerner regards the "frantic pursuit of self-interest" as a moral evil.

There is nothing new about these ideas: They are the principles upon which the Soviet Union was supposedly run. But people like Lerner don't seem to have noticed that the class structure and poverty of the Soviet Union were vicious beyond comparison with the United States, while the "random destruction of the collective goods of others" that Lerner refers to, doubtlessly meaning to invoke the Environmentalist cliché that capitalism is bad for the environment, was pretty much what happened every day in the Soviet Union: with its worthless central heating system, the city of Moscow uses as much natural gas in a year as the entire Republic of France does.

Lerner's attacks upon individualism and capitalism are the same old leftist grab for power away from individuals and for political commissars that people like Lerner aspire to be. He can cloth this in moralistic language precisely because he can use language from mediaeval societies that were conceived in just the totalitarian way that he prefers.

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Rights and Responsibilities, Note 9

Liberties and immunities more clearly imply duties of omission in others, since they do not involve any power to compel positive actions. Rights (in particular) and powers, in turn, more easily imply duties of commission in others, since duties and liabilities as such tend to imply positive actions or responses, as the existence of "no right" and disabilities merely imply the forbidding of certain actions. "Empowerment" is ambiguous, since "power" in general can simply mean the ability to do something. "Empowering" someone thus can simply mean giving them the ability to do positive things in their lives, and that always sounds like a good thing. But a legal power has the strong connotation of compelling action in others, and the context of talk about "empowerment" today is usually in such a legal one. Much talk about "power" and "empowerment" thus seems to involve politically moralistic limitations on liberty.

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Rights and Responsibilities, Note 10

This is applied very selectively. When those sympathetic to leftist causes commit crimes, the crimes are often excused and "understood" as occurring because of righteous anger (or "rage"). But when those sympathetic to rightist causes commit crimes, attributing the actions to their anger (or "hate") often means requiring that punishment be magnified. This can be true even when precisely the same kinds of actions and motives are at issue, i.e. racially motivated beatings of whites by blacks in the former case and racially motivated beatings of blacks by whites in the latter. Such a double standard is often found when political bias influences the administration of justice, as when Adolf Hitler was given a light prison sentence by a sympathetic court for committing treason by trying to overthrow the government in 1923 (the "Beer Hall Putsch"), or in much of American history when crimes against blacks would be punished much less severely, if at all, than crimes against whites -- which if done by blacks could be punished severely indeed, including by extra-judicial lynching.

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