A right is not a privilege, says Andrew P. Napolitano. A right is an indefeasible personal claim against the whole world. It does not require a government permission slip.
“If all mankind minus one were of one opinion,
and only one person were of the contrary opinion,
Mankind would be no more justified
In silencing that one person,
Than he, if he had the power,
Would be justified in silencing mankind.”
— John Stuart Mill (1806-1873)
The world is filled with self-evident truths — truisms — that philosophers, lawyers and judges know need not be proven. The sun rises in the east and sets in the west. Two plus two equals four. A cup of boiling hot coffee sitting on a table in a room, the temperature of which is 70 degrees Fahrenheit, will eventually cool down.
These examples, of which there are legion, are not true because we believe they are true. They are true essentially and substantially. They are true whether we accept their truthfulness or not. Of course, recognizing a universal truth acknowledges the existence of an order of things higher than human laws, certainly higher than government.
The generation of Americans that fought the war of secession against England — according to Professor Murray Rothbard, the last moral war Americans waged — understood the existence of truisms and recognized their origin in nature.
The most famous of these recognitions was Thomas Jefferson’s iconic line in the Declaration of Independence that self-evident truths come not from persons but from “the Laws of Nature and of Nature’s God.” Thus, “All Men are created equal and are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness” is a truism.
Jefferson’s neighbor and colleague, James Madison, understood this as well when he wrote the Bill of Rights so as to reflect that human rights do not come from the government. They come from our individual humanity.
Natural Rights
Thus, your right to be alive, to think as you wish, to say what you think, to publish what you say, to worship or not, to associate or not, to shake your fist in the tyrant’s face by petitioning the government, your right to defend yourself and repel tyrants using and carrying the same weapons as the government does, your right to be left alone, to own property, to travel or to stay put — these natural aspects of human existence are natural rights that come from our humanity and for the exercise of which all rational persons yearn.
This is the natural rights understanding of Jefferson’s Declaration and Madison’s Bill of Rights, to the latter of which all in government have sworn allegiance and deference.
A right is not a privilege. A right is an indefeasible personal claim against the whole world. It does not require a government permission slip. It does not require preconditions except the ability to reason. It does not require the approval of family or neighbors.
A crowd of tourists gathers around the Liberty Bell at Independence Hall in July 1951. (National Park Service /Wikimedia Commons /Public Domain)
A privilege is something the government doles out to suit itself or calm the masses. The government gives those who meet its qualifications the privilege to vote so it can claim a form of Jeffersonian legitimacy. Jefferson argued in the Declaration that no government is morally licit without the consent of the governed.
No one alive today has consented to the government, but most accept it. Is acceptance consent? Of course not — no more than walking on a government sidewalk is consent to government’s lies, theft and killing. Surely, the Germans who voted against the Nazis and could not escape their grasp hardly consented to that awful form of government. Resignation is not moral acceptance.
We need to distinguish between privileges that the government doles out and rights that we have by virtue of our humanity, rights so human and natural that they exist in all persons even in the absence of government.
Are our rights equal to each other? Some are equal to each other, but one is greater than all, as none of the rights catalogued briefly above can be exercised without it. That is, of course, the right to live. This is the right most challenging to governments that have enslaved masses and gloried in fighting morally illicit wars that kill and thus destroy the right to live.
But if a right is a claim against the whole world, how can a government — whether popular or totalitarian or both — extinguish it by death or slavery? The short answer is no governments, notwithstanding the public oaths their officers take upon assuming office, accept the natural origins of rights. To government, rights are privileges.
Stated differently, governments do not take rights seriously.
Governments hate and fear the exercise of natural rights. Ludwig von Mises properly called government “the negation of liberty.” Freedom is the default position. We are literally born free, naturally free.
Government is an artificial creation based on a monopoly of force in a geographical area that could not exist if it did not negate our freedoms. Government denies our rights by punishing the exercise of them and by stealing property from us.
Rights are not just claims against the government. They are claims against the whole world. This was best encapsulated by Rothbard’s non-aggression principle, which teaches that initiating all real and threatened aggression — whether by violence, coercion or deception —is morally illicit. That applies to your neighbors as well as to the police.
Of course, in Rothbard’s world, there would be no government police unless all persons consented; and he wouldn’t have.
Mises wrote — channeling Jefferson — that in the long march of history, men and women have given up essential freedom for the illusion of happiness. “They hail every step toward more government interference as progress toward a more perfect world.” They are confident, he wrote “that the governments will transform the earth into a paradise.” How right he was. How wrong people are who think they can be happy without freedom.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Former judge Napolitano gives a ringing praise for deeply embedded rights that imply duties on the part of others. But his analysis does not apply to anything like all rights. To get an understanding of rights in the context of the whole of the law, one is better served by reading Wesley Newcomb Hohfeld’s analysis of fundamental legal concepts. Claims, privileges, powers and immunities are all different kinds of rights as the term is more broadly used. I was once directed to his work by Oxford philosopher of law H.L.A Hart and have found it gave me lifelong useful insight into the workings of the legal system.
An example (mine): I give a friend permission to drive my car. He has a liberty right to drive it. But if later a snow windrow prevents his access, he doesn’t have a claim right to force me to remove the barrier to his driving the car, unless more than the liberty-right was implied in the permission.
This author has strted his article with a quote from John Stuart Mill. Let me describe Mill’s definition of civil rights. He stated they were parallel to law and were intended to maximise the utility of society for the majority. They were not personal liberties.
Self-evident truths?
“The world is filled with self-evident truths — truisms — that philosophers, lawyers and judges know need not be proven.” No matter how keen the subjective observations of one, they need not be identical to any others. Surely the Judge, in his earthly wisdom, knows this for a fact?
The sun rises, neither in the east or the west. These are merely finite linguistic terms, constructed by, and within the limited framework of the human mind; as seen from its planetary perch, in an infinite and ever-expanding Cosmos.
That Homo-sapiens did not spring from the artifice of his artificial intelligence (AI) is the only self-evident this commenter is aware of.
In this day and age, is being philosophically a libertarian, anarcho capitalist, moral?
‘Elsa’ the lioness was naturally “born free” of independent mind, in an animal jungle; subservient to the instinctively acting alpha male leader of the pack.
“Government is an artificial creation based on a monopoly of force”, as was the Roman Catholic Church in its heyday. Did not the Church whimsically punish and steal property from us, “In the name of the Holy Ghost”? Was this not a construct of the human mind, and a form of the means of control?
Was not the Church violent in its coercive and deceptive practices? Was this, and is it not, more especially today, morally illicit?
In the land where Church and State are supposedly separate, the Government regime today, is the sole and only church. It is wholly illicit!
This comment is not COPYRIGHTED 2025
While I am highly sympathetic to the Judge’s POV, I must say that the universality of his “rights vs. privileges” is highly questionable. As people do not even agree on a single creator and religion, it seems unlikely that there can be god-given rights that can be unquestionably accepted by all. Many societies do not agree with many of our core tenets of what are rights … witness the current arguments with the Europeans about what “free speech” means.
All that said, I agree with the Judge that in the American context the rights enshrined in the Bill o’ Rights have, through custom and longevity, assumed something beyond privilege … they are rights and fundamental to our identity as Americans. As such, when the current president speaks casually about “illegal speech on colleges” or previous presidents spoke and acted contrary to speech, assembly, privacy, and other rights, they are acting unamerican and need to be chastised accordingly.
“ Freedom is the default position. We are literally born free, naturally free.”
This is the foundational fault of this reasoning (and, I believe, derives from questionable psychologically derived motives). No organism is ‘literally born free’ or is free in some absolute sense. All are bound within physical form, behavioral genetics, and social constructions…whether an elk, orca or human. And humans: humans have always been born into communities that prescribed behavioral expectations adapted to sustain and make effective that community — most often, from anthropological evidence, with what is called pleasure and happiness. There have always been boundaries for behavior! The issues for our time come from our huge numbers washing us around like flotsam in broken communities and the rapid changes driven by our numbers, economic uncertainties and technology kaleidoscope: there is simply no functional process of social adaptation organizing experience. In such an environment it seems that a simplistic libertarianism is an easy result.
Among the natural rights Napolitano lists here, I disagree that owning property is a natural right. Seems more of a privilege to be awarded by law and barter, exclusive dominion over a piece of the earth upon which we all must share our natural right to live. I think many of the native cultures we displaced got this correct, before we brutally exercised dominion over them.
ah. there are no rights. there are only privileges. rights depend absolutely on power – if they are to be real.xx
here from the master
hxxps://www.youtube.com/watch?v=gaa9iw85tW8
This argument rests on certain assumptions treated as givens. That there are”laws of Nature” and thus natural rights. However, this is not about physics or biology or any other aspect of empirical science. It comes from philosophical concepts applied to theology.
For Roman Catholicism, natural law is about morality and proper behavior for humans. What’s of the natural order can be discovered by an innate rational discernment humans were created with. Therefore what’s improper is unnatural, against God’s design. In a late reaction to modernity, the RC Church declared in 1832 “error has no rights,” in the 1950s opposed by intellectuals who sought to reconcile Catholicism with religious plurality and democracy. Contemporary right wing evangelicals and other conservative religious people explicitly claim that rights come from God, not from governments. They equate their interpretations with objective truth. Therefore thinking of rights as independent of government is no guarantee of political and legal rights at all.
Notice here an appeal to the Jeffersonian “Nature’s God.” It’s a deist version of God; an Enlightenment rationalist’s way of saying God-given rights. A way to frame an argument so it seemed reasonable in context of the time. But the Founders didn’t leave it at that. They made sure rights were not left to interpretations of God’s will by religious authoritarians–they’d seen what happens with sectarian strife. They encoded them in the Constitution and especially in the Bill of Rights.
Notice also “all Men are created equal”…well, not quite. Not if you weren’t a property owner. Not if you were one of those 3/5ths of a person. Not if you weren’t a man. Either God did a poor job handing out rights or the idea is a human one subject to social conditions, to taking as common sense what are no more than prejudices. What is encoded in law, and therefore governmental, is at least something we all have in common. And it’s flexible; able to expand as ideas about who’s human and therefore has rights developed over the last couple of centuries. You may trust in your version of God/ Nature’s God but I don’t. And I’m not forced to.
Abortion also belongs in the natural rights category….which means there should be no law for or against it. It should be left to the discretion of women. So let’s stop fighting about abortion and get on to doing something worth doing….like dealing with climite change.
Sounds like the Judge prefers to live under the Tyranny of Elon Musk and the other Oligarchs. Napolitano claims to love freedom but in his world view, he replaces the government with corproations and prefers the Tyranny of Oligarchs.
As Lincoln said, “government of the people, by the people, for the people”
Unlike Corporations which are not of the people, by the people, for the people.
Where did you see Musk mentioned?
You see no difference between corporations, whose products we may purchase at our discretion, and government, which has the power of force (police, draft, and taxation)? Frankly, the only time corporations become oppressive is precisely when they use cronies in govt to enhance their power and wealth.
It is never “we the people” … Lincoln himself was quite the tyrant, as we all know. It is always certain people making choices for all. I feel a certain level of it (govt) is necessary; but I agree with Thoreau’s “govt governs best when it governs least.”
Through corporate lobbies just about every member of Congress is a corporate crony. Corporate lawyers write the legislation that affects their interests and give it to Congress to pass. Corporate executives get appointed to government positions to regulate the industries they come from. Corporations control the media and entertainment industry, fund think tanks and universities. With the intelligence agencies, corporations pretty much run the country, dominate the culture and determine lots of foreign policy too.
Nobody tells it as straight as you do, Judge Nap.
Cedric Ward
I hate to break it to the judge, but corporations are artificial constructs as is money. At the present state of affairs our government is waging genocidal wars on behalf of corporate profits. Seems to me, before we abolish government, we need to abolish money and corporations. You can’t have freedom under corporate tyranny.
Interesting that the author does not consider the Abolishionist’s movement war to end slavery as they knew it as a “moral war”.
Although, I’m not sure there is a moral war. There are wars that are forced upon people. When the Panzers or the Special Forces come across your border, you got no choice but to fight. (Unless you want to follow the Italian Gambit from Catch-22. which is only a different means of resistance with its own costs).
And, btw, the American Revolution was not a war that was forced in such a way upon the American people. It was more of a yet another English Civil War as the ruling elites in the Americas wanted to rule themselves. In terms of modern American thinking where it is so very important to say “They Hit Me First”, it was the Americans changing the relationship with the King that was the root cause of that long war. All the claims of “tyranny” from the King were only justification for tax evasion. Lexington and Concorde were attempts at law enforcement to get dangerous stockpiles of weapons. Paul Revere spent the night in jail.
But, notice how the power shifted, and how the same elites that had ruled underneath the King and Parliament were thereafter ruling themselves. While Liberty turned out to be General Washington becoming President Washington and sending out the troops to crush resistors who didn’t want to pay his whiskey taxes. Alexander Hamilton, now patron saint of the Democratic Party, thought that he should become King George.