How to Contradict Yourself about Rights

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David Gordon
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The First Amendment: Essays on the Imperative of Intellectual Freedom

by Tara Smith, Onkar Ghate, Gregory Salmieri, and Elan Journo

Ayn Rand Institute Press, 2024

418 pp.

What is the source of human rights? Are they derived from man’s nature, or are they simply privileges that the government grants to its citizens? Or is some intermediate view also an option? According to Murray Rothbard and Ayn Rand, the first of these positions is correct.

Tara Smith—the principal author of the essays collected in The First Amendment and a philosopher who teaches at the University of Texas at Austin—is a leading member of the Ayn Rand Institute, and her collaborators are associated with it as well. You would anticipate that they would support the former view (i.e., that human beings have natural rights) and you will, in fact, find a number of statements in the book where the authors say just that. But these statements cannot be taken at face value. It turns out that the government defines the boundaries of rights. In practice, you have the “rights” the government says you do. Smith says:

A government enjoys a unique kind of authority, namely, to make people do as it says regardless of whether or not they want to. The authority to coerce people’s compliance with its rules is justified only to achieve a specific mission: the protection of individual rights...their overriding purpose. The reason a legal system holds its power in turn constrains its legitimate work. A proper, legally valid legal system will do all that is necessary to accomplish that end and only what is necessary to accomplish that end.

The question at once arises, what are these rights, and here is where Smith goes down the road to perdition. Here is an example that makes evident what is wrong. Suppose the Fourteenth Amendment, as interpreted by the courts, forbids owners of a business to discriminate against customers because they are gay. If so, the owner of a bakery cannot refuse to bake a cake for a same-sex couple, even if doing so violates his religious convictions.

The obvious question to ask here is whether the amendment, thus interpreted, is part of the objectively correct law code and the answer to it is equally obvious. People do not have a natural right against discriminatory treatment. If that is true, the Fourteenth Amendment is not an objectively valid law. But Smith proceeds another way. For her, the issue is not “what is objectively valid law” but rather what the government enacts as law, so long as the government acts conscientiously:

Let’s assume that the Fourteenth Amendment’s doctrine represents the government’s conscientious best judgment as to what is required to fulfill its responsibility of safeguarding individual rights. If that is so, the government must enforce that judgment in order to accomplish its work. For it to do anything less would damage its ability to fulfill its role and betray its responsibility.

This is truly Orwellian: There is an objective law code that specifies what rights people have. But even if the government acts contrary to that code, so long as the government uses its “best judgment,” that is the law people are bound to obey.

We see an even more blatant example of this twisted logic in an essay by Gregory Salmieri. He says:

Public education appropriates money for tax purposes to promulgate opinions that may be anathema to them, and it forces parents to surrender their children to be educated in state-run or state-approved institutions, in accordance with curricula chosen by the state. Such laws collectivize and so politicize the field of education… The entire public education system should be abolished.

It should be, but it is up to the government to decide whether to do so, and if it decides to retain public education, people must obey it. The government’s subjective judgment is the law and the condemnation of public education is useless. People who oppose the state’s mandate for education do have the right to protest—of course, within whatever limits the state conscientiously decides are best.

Salmieri confuses two separate issues: one is whether a law should allow exceptions or instead be applicable to everyone and the other is whether promulgation by the government is a sufficient condition for people to have a duty to comply with a law. Salmieri is so afraid of people exercising individual judgment about the validity of a law that he, in practice, replaces the objective law code with the government’s fiat.

Smith, like Salmieri, worships the imperative force of law. If the government ruled out a male-only priesthood, the Roman Catholic Church would have to comply. It could refuse to do so and suffer the legal consequences; but the validity of the law, once promulgated by the government, is unquestioned. In like fashion, the government can conscript people into the armed services. The fact that this is slavery does not matter. So much for self-ownership!

Smith also exalts the state. She camouflages state power by hypocritically pretending she supports natural rights:

The fundamental reason that Americans are legally entitled to religious freedom. . .is not because the First Amendment says so. If that textual statement were its fundamental platform, we would possess only those rights explicitly mentioned in the Constitution. A right to travel? To marry? To raise children? To pursue the career we choose? The Constitution does not say anything about these. Should we conclude that we do not possess these rights? Hardly. The fact that we do not testifies to our recognition that it is not any list in the Constitution that is the source of our rights (not as their moral source.)

Once more, there is a natural law, but it is the government’s role to tell you what to do and you must obey. This is not a position that any lover of liberty can accept.