President Obama's friend and former colleague Cass Sunstein, now apparently on leave from Harvard Law School, would have us believe that our rights are granted to us by government. Sunstein and his co-author Stephen Holmes have argued in their book, The Cost of Rights (W. W. Norton, 1999) that human beings have no rights until government grants them some. As they put it, "individual rights and freedoms depend fundamentally on vigorous state action" (p. 14) and "Statelessness means rightlessness" (p. 19).
This is just the opposite of what classical liberal natural rights theorists think and what the American Founders thought. In the Declaration they stated, albeit rather succinctly, that we have rights because our very creation as human beings has endowed us with them. And they held that these were unalienable and government is instituted so as to secure them. Clearly, this implies the basic individual human rights come before the government instituted to secure them for us. The two scholars are mounting a major assault on what is perhaps most significant in the American political tradition. They have attempted to undercut this tradition's most revolutionary and significant features, namely, the demotion of government from its pretense of being the sovereign and the substitution of individual human beings as the true sovereign agents in a just human community.
There are other challenges, some even more deep seated, that have been and still are being levelled at the American style political regime. The late Leo Strauss and many of his followers have been arguing that the entire drift of modern political liberalism, with John Locke at its head, is wrongheaded and we must return to the paternalistic politics that came out of a certain interpretation of Plato's famous dialogue Republic. Still, the Sunstein-Holmes attack is what is getting serious consideration in our day so I wish to revisit the topic and once more offer a line of defense that seems to be decisive.
But perhaps Holmes and Sunstein are right and the American Founders had it backwards. What can we say, in just a few words, in support of the Founder's idea? Without rehashing John Locke's and his followers' defense of the character of our rights – as derivable from our human nature and the requirements for human community life – there are some simple matters that point to the fact that Holmes and Sunstein have it wrong.
Consider a thought experiment that isn't at all far fetched: An adult human being is stranded in the wild where there is no law, no police, no courts, nothing. Someone else comes upon him and turns out to be quite aggressive. He is attacked, physically, and all of what he has made for himself out there to survive is under the threat of being taken away from him.
It seems pretty clear that such a person would do the right thing to defend himself, if he could, against the aggressor who is threatening his life, his prospects for a future, maybe his family and friends as well (if we build up the case in more detail). And if he were to be challenged afterwards why he resisted being attacked and robbed, he could well say, "This fellow wasn't peaceful toward me, didn't respect my rights as a fellow human being, so I had to resist him, physically, so he couldn't succeed in his threats," or something simpler along these lines.
Yet, if our rights depended upon government granting them to us, such a line of argument, justifying self-defense, wouldn't hold up. Those who challenged the victim of the attack for resisting the aggressor might say, "But, listen here, since government grants people their rights and there is no government out here you have no rights. Not to your life, not to your liberty, not to your property and not to self-defense, certainly. Not, at least, until a government is established and grants you these rights. Until then it is a free for all and no complaints make sense against our actions that you consider aggressive." (Indeed, that is pretty much how Hobbes, but not Locke, would have understood the situation in the state of nature.
Surely this would be absurd. Yet that is just what would follow if the prominent analysis of individual rights, advanced by the likes of Holmes and Sunstein, would be sound. No one would have any justification putting up any resistance against attackers – including rogue governments – unless some government issued a grant of rights. Given, however, that there are not just imaginable but real circumstances in which human beings interact with no government having been established or in operation (for the time being, at least), and given that some of these people can act violently toward others, there is need for some idea that makes sense of the situation and gives guidance to conduct on the part of those who are victims of the violence. These ideas may not be expressed entirely in the familiar terms of individual rights but that is what they would be intimating, even if somewhat unclearly and undeveloped.