"Every man is under the natural duty of contributing to the necessities of the society; and this is all the laws should enforce on him." --Thomas Jefferson, 1816.
There can be no rights without responsibilities. If the rights of individuals are to be secured by their society, then individuals must accept responsibility for the integrity of their society. Government is simply a means by which individuals can work together to secure both rights and responsibilities that reflect the consent of the governed. The Bill of Rights to the U.S. Constitution was not meant to be a complete enumeration of rights, as was made clear in the 9th Amendment. Neither did the Constitution attempt to enumerate a specific set of responsibilities. The purpose of the Bill of Rights was to protect individuals against the infringement of rights by the government, rather than enumerate rights and responsibilities to be ensured through government.
I believe most of the contentious issues that divide our society today could be resolved by working toward a consensus regarding the fundamental rights and responsibilities of individuals within our society. First, there must be an understanding that no government has the ability to ensure rights absolutely or completely, even if the rights are absolute or unalienable. The resources of the earth available to meet the needs of any given human society will always be limited. Everything of economic value ultimately comes from the earth by way of society. The absolute assurance of one unalienable right would inevitably detract from the resources available to the government to assure others. For example, given current medical technology, ensuring the absolute maximum length of life for every individual would quickly exhaust the resources that support the U.S. economy, leaving no economic means of ensuring other rights.
So, reaching a consensus on a common set of rights and responsibilities would be a two-step process: first, agreement on a set of fundamental rights to be secured for all, and second, agreement on the level to which society, through government, is responsible for ensuring those rights. To the extent they are able to do so, individuals would be responsible for securing rights for themselves. This does not suggest that earning money to ensure economic rights should take priority over other individual responsibilities to families or communities. A consensus would be needed regarding the nature and the extent of the responsibilities of individuals to care for themselves and to contribute to the necessities of society. Obviously, the responsibilities to be carried out through government would need to be continually reassessed to reflect changes in knowledge, technologies, the economy, and society.
It would be critically important to distinguish “rights and responsibilities” from “preferences and personal choices.” The rights of all must take priority over our individual preferences, at least until our collective responsibility to ensure the fundamental rights of all has been met. In other words, individual liberty must defer to societal justice, at least until justice is secured. Once the rights of all have been protected, legally if not absolutely, the preferences of individuals can take priority over the furtherance of societal well-being without violating anyone’s fundamental rights. Our “natural duty of contributing to the necessities of society” will have been fulfilled. Of course, individuals could continue to give priority to the community and society, even when not necessary to secure justice. Regardless, true liberty and freedom can prevail only within an equitable and just society.
Whenever questions arise regarding rights and responsibilities, it matters whether the question is one of rights or preferences. In matters of rights, the burden of proof falls upon the accuser – the one who would deprive the fundamental rights of another. In criminal court cases, for example, the question of life or liberty of the accused may be at stake. The accused, the defendant, in such cases is presumed innocent until proven guilty by the accuser, “beyond a reasonable doubt.” The one whose rights would be deprived is given the benefit of any doubt. In matters arising over differences in personal preferences or opinions, as in civil court cases, issues are decided by relying on the preponderance of evidence. The burden of proof is equal for the accused and the accuser.
If many of today’s contentious issues were addressed from the perspective of rights rather than preferences, many decisions currently based on a “preponderance of evidence” would become decisions requiring “proof beyond a reasonable doubt.” For example, I have persistently contended that the right to life includes the rights to clean air, clean water, and enough safe, nutritious food to support healthy, active lives. While none of these rights could be ensured absolutely, any threat to individual or public health due to environmental pollution or nutritional deprivation would constitute a potential violation of the “right to life.” Whenever conflicts arose over such issues, the burden of proof would on those who pose the threat rather than those who are threatened.
Current laws and regulations protecting the environment are obviously inadequate to protect public health and may be weakened or repealed without constitutional consequences. In the absence of a clear violation of existing law, those who can provide “a preponderance of evidence” of threats to public health still may not be able to prove their claims “beyond a reasonable doubt.” The burden of proof today is on those who are threatened rather than those who pose the threat. A clean and healthful environment is not currently considered a legal right. It is virtually impossible to prove scientifically that specific effects are the result of specific causes within complex, interconnected systems, such as natural ecosystems, societies, and economies. Lacking such proof, private property rights, meaning economic interests, are routinely given priority over the rights of all within society to a clean and healthful environment.
In cases of conflicting rights, the government would assume the responsibility of resolving the conflicts. If restricting an individual’s economic or property rights, would leave a polluter without the means of meeting his or her basic economic needs, the government would assume responsibility for either eliminating the health risks or providing an alternative means for the individual to meet their economic needs. However, such is rarely the case. Those threatening public health typically have far more income and wealth than needed to meet their basic economic needs. The economic rights of those with wealth routinely are given priority over the rights of those with limited economic means of securing a clean and healthful environment. Many who have good reason to feel threatened are left with little if any legal recourse.
I don’t know whether a national discussion of rights would lead to the same conclusions I have reached concerning our right to a clean and healthful environment. My point is that many of today’s contentious issues are rarely discussed in terms of rights. As a result, there is no consensus regarding how the government should resolve such issues. Other questions of rights that come to mind are the right to enough good food, right to healthcare, right to education, right to meaningful employment, and right to economic necessities. As I have mentioned in a previous Common Grounds post, issues such as abortion, gun control, public prayer, species extinction, and climate change might also be resolved if they were addressed in terms of rights.
Such rights could never be secured absolutely by the government, but the legitimacy and integrity of any government depend on a public consensus regarding its purpose and responsibilities. In the next Common Ground, I will suggest some ways we might go about securing our rights and fulfilling our responsibilities through government.
John Ikerd