That vision came under attack with the rise of progressivism late in the 19th century. Progressives, coming from our elite universities, were social engineers animated by the new social sciences and by European social-welfare schemes. They thought they could order our lives better than we ourselves could, left to our own devices in free markets. Thus, they sought to supplant common-law adjudication with policy-driven legislation and regulation. Early on, the courts often stood athwart that effort, finding it inconsistent with our Constitution of limited government. But after Franklin Roosevelt’s 1937 threat to pack the Supreme Court with six new members, the Court caved, effectively opening the floodgates to the modern redistributive and regulatory state that we know and love so well today.
Thus, while the Constitution hadn’t changed, our reading of it had — and with it, our understanding of “rights.” We see that clearly with the drafting of the Universal Declaration of Human Rights, championed especially by Franklin Roosevelt’s wife, Eleanor, in the aftermath of World War II. Thus, the UDHR begins with the traditional rights to freedom, albeit often in vague language. But it goes on to include what in U.N. parlance are called “social, economic, and cultural rights” — rights to social security, employment, just and favorable remuneration, periodic holidays with pay, even “a standard of living adequate for the health and well-being of [oneself] and of [one’s] family, including food, clothing, housing and medical care and necessary social services.” It’s a cornucopia of utopian aspirations, all in the name of human rights.
Conceiving these statutory “entitlements” as rights sets them at war, of course, with the very idea of “a right.” To have a right, as put by James Madison, the principal author of the Bill of Rights, is to have a justified claim to what is one’s own, starting with one’s liberty. But these new “rights” are claims to what belongs to others — their liberty or property. They’re not free. In fact, they’re purchased with our freedom. And the more government provides such “rights,” the more government expands and freedom recedes.
What’s worse, as our lives become increasingly entangled in the welfare state, we grow ever more dependent on these entitlements and ever more demanding: free child care, no college tuition, debt forgiveness, business subsidies, and on it goes. Our critical faculties are dulled, our characters compromised, our individual responsibility surrendered for collective responsibility.
And it isn’t simply on the domestic front that these new rights have taken their toll. The compromise that produced the U.N.’s declaration — joining natural-freedom rights and statutory redistributive rights — has yielded increasingly perverse results over the years. Today, for example, some of the world’s most tyrannical regimes are sitting on the U.N. Human Rights Council, justifying their actions by their putative provision of these redistributive rights — and justifying their need, accordingly, to prevent their citizens from leaving, as in the old Soviet Union and today’s North Korea, Cuba, and, most recently, Hong Kong.
We’re far from those regimes, of course, but the logic of the “rights” they invoke to justify their actions cannot be ignored, especially when we see Congress desperately searching for ever more ways to pay for the cornucopia it’s promising.
It was a bad business, that 1948 compromise. And so was the 1937 assault on the Supreme Court. Both muddied the waters the Founders had made clear. Today, increasingly, we lack the clarity, the independence, and the discipline we need to secure the blessings of liberty to ourselves and, still more, to our posterity.
