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Herbert London: Inventing Rights And The Enforcement Mechanism That Goes Along With Them

Washington is the home for rights promoters. Fads of the moment translate into rights with legal justification and a regulatory apparatus attached to them. This is the manner in which government expands without limit. Illustrations abound.

When healthcare became a right as noted in Obamacare, insurance became a requirement. If ignored, a fine will be imposed. As a consequence, a bureaucracy must be created to deal with adherence to the law. Since millions of Americans, indeed most Americans who haven’t been granted an exception, are involved, the size and scope of the bureaucratic system will be as large as any in the nation’s capital.

Whether one favors abortion or not, one point is clear: the Congress invented reproductive rights and the Supreme Court gave it the imprimatur of legitimacy. The net result is that the Department of Health and Human Services has expanded to accommodate this invented proposition and federal funds have been given to NARAL to make sure government encourages this right.

The food stamp program organized to avoid malnutrition in America has expanded in the last four years from 32 million to 49 million citizens, a rate of about one in seven people. With the war on poverty, emerged the right that every American is entitled to food. The vast program has doubled the size of the Department of Agriculture that has responsibility for its administration. Surely it is desirable to make sure every citizen is fed, but when nutrition became a right expansive government activity came with it.

It is also desirable, or so it may seem, to assume clean air and water should be encouraged across the land. When these environmental characteristics are deemed rights, the Environmental Protection Agency is moved from a secondary governmental activity into primary focus. From automobile standards to fracking, from burning garbage to dispensing with nuclear waste, the EPA is there to regulate. Clearly much of the regulation is necessary, but once deemed rights, clean air and water must be monitored continuously expanding the size of the bureaucracy. 

Max Weber, the noted social thinker, argued that democracies have fallen into the trap of being managed by bureaucracies. Moreover, once in place it is virtually impossible to reduce their size or responsibility. There aren’t sunset laws for bureaucratic entities. So government goes on its merry way expanding through rights’ provisions. Ironically the more rights that are invented and enforced, the less liberty is maintained.

When reproductive rights became a source of government enforcement every effort was made to defend abortion decisions in the nation’s hospitals.

However, in doing so, government officials overlooked or ignored Catholic doctrine that will not permit abortions in hospitals managed by the Church. In this instance, an invented right challenged an existing First Amendment freedom.

It would be foolhardy to contend that government doesn’t have a regulatory role in many aspects of our lives. But it would be equally foolhardy to ignore the role new rights provisions play in expanding government authority and ultimately reducing personal freedom.

Since the citizens in a democracy can request rights heretofore unknown, the process is unlikely to be curtailed. What this means for the republic is anyone’s guess. But I for one, do not look forward to a government managed largely by an unaccountable bureaucracy.

Herbert London is President of the London Center for Policy Research, a senior fellow at the Manhattan Institute and author of the book The Transformational Decade (University Press of America).

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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