Rights Based on Spurious Foundations

Recent years have seen the progressive increase in attention to human rights on a global level, both in the articulation of their definition and in their practical applications. At its inception, the United Nations enumerated thirty goals of international diplomacy. It comes therefore as some surprise, to some at least, that the Trump administration has proposed a new articulation of human rights, and the principles upon which thy are based, that radically narrows their purview.

On October 23, 2019, Secretary of State Mike Pompeo established a Commission on Unalienable Rights whose purpose was to redefine these principles and rights. This draft report was released, today, July 17, 2020.  Its agenda reflects Trump’s philosophy. In a Washington Post opinion piece,  Rori Kramer, who had a long prior career in the US State Department and the US Senate, and is now with the American Jewish World Service, writes: “it is a partisan effort to roll back US support for Universal human rights,” and that it “instead seeks to reinterpret human rights within a narrow and highly partisan agenda.”

“The [board] members of his commission he [Pompeo] selected [are] a dozen conservative academics, moral philosophers and theologians, most of whom appear to have little to no practical experience with human rights. Pompeo has also kept the group’s work mostly private––in defiance of Federal rules for public commissions and in spite of a lawsuit by public interest groups.” Moreover there is a particular focus “on the religious liberty of right-wing conservatives over the rights of the many, specifically women and LGBTQI+ people.”

The Guardian headlines Secretary Pompeo’s “claims [that] private property and religious freedom are ‘foremost’ human rights.” Having set the stage for the content of this document, he turns the focus to property. Page 13 states:

The aim [of government] must always be to restore political society. The civil liberty that political society makes possible––the rights to travel; to enter contracts and agreements; to possess, use, purchase, and dispose of property; to the protection of person and property….

Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.

For the founders, property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.

The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship.

Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.

This document is intended to be universal in its scope and application, and even to supplant the United Nations credo, formulated 70 years ago, that property is a unique and largely Western concept. Ownership of property (typically assumed to be land in fee simple) is really a product of some four centuries of colonialism. Certainly, our native American populations had no such notions of property. Chief Seattle observed that “Earth does not belong to us; we belong to earth. Take only memories, leave nothing but footprints.” Accounts of Near Eastern societies, as well as Asian and African civilizations, make clear that the idea of land titles, as we know them, and where they exist at all, are a recent import. We need to better identify the extent to which land as property is understood elsewhere in the world.

The question, then, is the extent to which landed property titles can be viewed as legitimate at all, anywhere. If all land traced back is “owned” by either force or fraud, what restitution should be proposed? And to whom is it owed?  Moreover, if a system of reparations or compensation is instituted, who should devise the solutions?

Henry George argued that no titles should exist for any property not made by human hands or minds. Such ownership should be in usufruct only, a claim not unique to Western thought. Jefferson and other early colonial settlers understood this. Here, because it’s not often referenced on the subject, I quote Benjamin Franklin:

All Property indeed, except the Savage’s temporary Cabin, his Bow, his Matchcoat, and other little Acquisitions absolutely necessary for his Subsistence, seems to me to be the Creature of public Convention. Hence the Public has the Right of Regulating Descents & all other Conveyances of Property, and even of limiting the Quantity & the Uses of it. All the Property that is necessary to a Man for the Conservation of the Individual & the Propagation of the Species, is his natural Right which none can justly deprive him of: But all Property superfluous to such purposes is the Property of the Publick, who by their Laws have created it, and who may therefore by other Laws dispose of it, whenever the Welfare of the Publick shall demand such Disposition. He that does not like civil Society on these Terms, let him retire & live among Savages.— He can have no right to the Benefits of Society who will not pay his Club towards the Support of it.

Secretary Pompeo and his fellow Board members of the Commission on Unalienable Rights would do well to heed this observation. Together with the writings of Henry George, we have principles and practical answers for a sounder approach.

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