Rights as Government Power and the Kiss of Judas
By Pierre Lemieux
As many analysts have noted, including Anthony de Jasay, the idea of rights is slippery, for it can mean that everything not specifically listed as a right is forbidden to ordinary citizens. A related way to turn the modern idea of rights on its head is to claim that the state or the rulers have specific rights opposable to individual rights. We just had an illustration of this, not in Papua, but in America itself.
On Friday, escalating his trade war with China, president Donald Trump tweeted:
Our great American companies are hereby ordered to immediately start looking for an alternative to China.
A Wall Street Journal editorial commented:
Order? Somebody should tell Chairman Trump this isn’t the People’s Republic of America.
Guess what? Trump is probably correct. There must be some “law” that grants such power to the president. (I put “law” in quotes because this indefinite extension of state power does not correspond to the classical-liberal conception of law.) Indeed, he tweeted:
For all of the Fake News Reporters that don’t have a clue as to what the law is relative to Presidential powers, China, etc., try looking at the Emergency Economic Powers Act of 1977. Case closed!
Trump explicitly claimed this power as a “right.” (His less blinded followers will claim that he did not really mean what he said. Another related hypothesis: he doesn’t know what he is talking about.) The Wall Street Journal reports:
Asked Sunday if he planned to declare a national emergency on China, Mr. Trump told reporters: “I have the right to.”
Depressingly but not surprisingly, the left also uses the government-right concept whenever convenient. For decades, it claimed that the right defined by the Second Amendment (“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”) defined a government right. This idea was fortunately (but perhaps not definitively) put to rest by the Supreme Court’s Heller decision: like all articles of the Bill of Rights, the Second Amendment declares an individual right, as much scholarship has shown.
More generally, I would argue that Trump, with his expansive conception of government rights and his blank knowledge of such things, is giving a Judas kiss to the rare libertarian ideas he has occasionally adumbrated. Incidentally, the Second Amendment is one of them.