Today, June 14, is Flag Day, celebrating when, in 1777, the Second Continental Congress authorized a new flag to symbolize America. It has typically received little notice, beyond being one of the few times many said our Pledge of Allegiance. But the furor over the U.S. 9th Circuit Court of Appeals’ ruling that “under God” made requiring students to say the Pledge unconstitutional has now raised its profile.
Flag Day discussion will focus on that contentious case. Many, especially politicians, will endorse the Pledge “as is,” lest their patriotism or morality be questioned. Others will echo the claim it is an unconstitutional government establishment of religion. But another phrase — “with liberty and justice for all” — which predates “under God,” is far more important.
“Under God” refers to the source of the inalienable rights asserted in our Declaration of Independence. But “liberty and justice for all” reminds us that “justice” today is a far cry from the conception underlying our Founding.
How can there possibly be liberty and justice for all, when, in the name of justice, people claim rights to income, food, housing, education, health care, transportation, ad infinitum? We can’t. Positive rights to receive such things, absent an obligation to earn them, must violate others’ liberty, by taking some of their income without their consent. They are really just wishes, convertible into benefits for some only by employing the government to violate others’ rights not to have what is theirs taken.
Only by recognizing that justice involves the defense of negative rights — prohibitions laid out against others, especially the government, to prevent unwanted intrusions — not rights to be given things, can liberty for all be reconciled with justice for all. And negative rights are precisely what our Declaration of Independence and the Constitution, especially the Bill of Rights, were meant to protect. But those foundational freedoms are being eroded by the ongoing search to “discover” ever more positive rights.
Echoing John Locke, the Declaration of Independence asserts that all have inalienable rights, including liberty, and that our government’s purpose is to defend those negative rights. Each citizen can enjoy them without infringing on anyone else’s rights, because they impose on others only the obligation not to interfere. But when the government creates new positive rights, extracting the resources to pay for them necessarily takes away others’ inalienable rights (which we recognize as theft except when the government does it). Such rights are inconsistent with the vision which formed America.
Almost all of Americans’ rights laid out in the Constitution are protections against government abuse. The Preamble makes that clear, as does Article 1, Section 8’s enumeration of the limited powers granted to the federal government. That is reinforced by explicit description of some powers not given. Even more clearly, the Bill of Rights, which Justice Hugo Black described as the “Thou Shalt Nots,” consists almost exclusively of negative rights. Even its central positive right — to a jury trial — is largely to defend innocent citizens’ negative rights against being railroaded by the government. And the 9th and 10th Amendments leave no doubt that all rights not expressly delegated to the federal government are retained by the people.
Liberty means I rule myself, protected by my negative rights, and voluntary agreements are the means of resolving conflict. In contrast, assigning positive rights to others means someone else must rule over the choices and resources taken from me. But since no one has the right to rob me, they cannot delegate such a right to the government to force me to provide the resources it wishes to hand out to others, regardless of who is to get them. For our government to remain within its delegated authority and the consent of the governed, it can only enforce negative rights.
Our country was founded on inalienable rights, not rights granted by Washington, so the government cannot take them away. But as people have discovered ever more things they want others to pay for, and learned how to manipulate the language of rights to get public support, our government has increasingly turned to violating the rights it was instituted to defend. As we celebrate Flag Day, this, not whether “under God” is in the Pledge of Allegiance, is main threat to our Founders’ vision.
Gary M. Galles is a professor of economics at Pepperdine University in Malibu, Calif.