Rights are not given by the State. They are recognized. In recognizing rights, the State binds itself to respect those rights, and in some cases to come down like a ton of bricks on any private individuals who fail to do likewise.The quality of this guarantee may be judged by the vigor with which the Federal Government protected Constitutionally guaranteed negro suffrage between 1877 and 1965, or by its current inability to comprehend the meaning of the word “bear” in the right to bear arms; but such defaults only illustrate my point.A man has a right only if he stubbornly insists on that right and is prepared, if need be, to perpetrate or suffer any brutality to enforce it. The State respects rights, and sometimes coerces private citizens to respect rights, because it fears to awaken this stubborn brutality. A State does not love it citizens, and it hates, or at least begrudges, every one of their damned rights.
Much longer-ago, in 2007, we here at the Hall had a lengthy debate on this subject; it makes up much of the "Frith & Freedom" collection of links on the sidebar. I wrote some of them, Joel Leggett others, and I believe Joseph W. others yet -- the latter two both military lawyers at the time, Joel in the Marine Corps and Joseph in the Army.
My basic position at that time was that the world is so dangerous a place for rights that their existence as a practical matter absolutely depends on us developing a mutual defense of them. This mutual defense is not 'cashed out,' as philosopher like to say, by the formation of a government. That is a common step to address external threats to the rights, establishing a government whose purpose is to protect the rights that the Declaration of Independence says we were endowed with by our Creator. Many would go so far as to call it a necessary condition; I hope that is not true, but it is what Jefferson wrote. What it is not is a sufficient condition.
Sufficiency requires that we also mutually defend each other and our rights against the government, providing a internal defense of the right against the very thing meant to provide the external defense. A government strong enough to repel foreign powers, bandits, and tyrants is also strong enough to become a tyrant on its own behalf. If the rights are to be real in the practical sense -- i.e., actually enjoyed from day to day in a living society -- they require us to develop and deploy "frith." Frith is a long-dead Anglo Saxon word that is a cognate to both 'friendship' and 'freedom.' When it was a living word, this is what it denoted: that relationship between us that causes us to defend each other's interests. In those days that the word was alive, this was understood to entail actual violence at least as a potential that might really need to be actualized occasionally -- Mr. Smith's point, which he is labeling 'brutality.'
So, while it may be true that our Creator endowed us with inalienable rights, it is also true that making those rights real and actual requires us to endow ourselves and each other with them.
I do agree that such governments as we have today generally are hostile to such rights, but I don't know that I believe that all governments always are. The administrative state that is characteristic of modern government is basically hostile to its own people because the administrators form a class with its own class interests that are hostile to everyone else's; this is the matter of much of Weber's essay, the commentary on which is also on the sidebar. I don't think it was necessarily true of the Founders that they resented the rights of the citizenry, which were their own rights too, ones they had fought for valiantly. I do think it is true of bureaucracies; that is one reason to eliminate bureaucracies and do without administrative states. Such administrative states are not necessary to the external defense, and they are actively harmful to the internal defense, of human liberty.
The price of eliminating the administrative state is that we would have to provide for some of the goods it provides in other ways. The upsides include a greater liberty, but also that the administrative state is actually pretty bad at providing any of the goods it attempts -- government provided health care tends to be objectively worse than we have here, as we observe in Canada with its MAID and the UK with its endless wait-lists and even here with our VA; public education is objectively worse than private education; etc. Eliminating the administrative state and its hostile class of bureaucrats and would-be rulers might reasonably be expected to result in greater actual goods being realized. It's just a bit harder to have to do it yourself, but as we know, if you want a thing done right you often have to do it yourself.
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