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Individual Rights

5 min read

Part of Free speech and civil liberties.

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Every episode (4)

Who argued it

David Harsanyi · Clint Bolick · David Boaz · Damon Root

Economic Liberty · American History · Second Amendment · Occupational Licensing · Federalism · Libertarianism · Welfare State · Drug Policy

Background

Rights as a limit on majority rule

Individual rights enter the program chiefly as a brake on majoritarian and administrative power. In a discussion of the Supreme Court, Damon Root argues that the Constitution is a written document that imposes restrictions, and that courts must enforce it even when doing so goes against what many people want; he notes that in a pure democracy 60% of the people could impose an unjust law on the other 40%, and that the less democratic Supreme Court is one of the brakes built into the system to check that majoritarian impulse Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).

Bob Zadek frames the same question from the host’s chair, saying he is not a fan of majority rule in many cases because rights taken away by 51% of the people feel no different from rights taken away by one tyrant. David Kaplan answers that democracy is the most legitimate form of government and that he would rather place his bets with majority rule than with a monarch, while granting that individual rights can be trampled by the majority and that the question is when those rights ought to prevail and who decides Demystifying the Supreme Court (2019). Kaplan adds that the First Amendment exists to protect unpopular views, and the Fourth Amendment to protect criminal defendants who are by definition unpopular.

Property rights and the COVID era

Carol Roth treats property rights as a subset of individual rights and as endowed by the creator rather than granted by government, with the government’s role being to protect them. She describes the shuttering of small businesses during COVID as the primary infringement, and says that had appropriate compensation been given the principle would at least have been preserved, but that small businesses received crumbs rather than what was due Carol Roth on the War on Small Business (2021). She also points to the CDC eviction moratorium, under which an agency she describes as a health rather than an economic agency told small landlords they could not evict tenants who owed them money, and calls that infringement unconstitutional.

Zadek’s framing in the same exchange defines property rights as the right to retain and to use what one has acquired lawfully, and warns that when property rights are cheapened, freedom is cheapened with them. Roth names Shelley Luther and Atilis Gym as business owners who refused to comply, and says too few entities were willing to say no.

Campus speech and due process

Harvey Silverglate describes the mission of FIRE as taking on a totalitarian mentality among administrators and some professors, mostly administrators, on American college and university campuses. He recounts that FIRE began about 11 years before the interview, after he and Alan Charles Kors wrote The Shadow University, when hundreds of students and their parents responded with accounts of being punished for saying politically incorrect things Is Your Alma Mater a Soviet Gulag? (2011).

Joe Cohn, speaking as Director of Legislative Policy at FIRE, says the organization was founded in 1999 to be a fair and effective advocate for the civil liberties of students and faculty at institutions of higher education, and that he was brought on in 2012 to add advocacy in the halls of government because government actors were telling colleges what to do and not always telling them to do the right thing that complied with constitutional rights Do you know your rights? (2022). The episode’s framing concerns Title IX regulations, the erosion of due process for the accused, and battles over fair hearings and cross-examination across three administrations.

Litigation and advocacy

The sources present litigation as the practical instrument of rights protection. Zadek closes an episode by thanking Terry Pell and Jeff for their work, wishing them luck in a lawsuit, and urging listeners to support the Center for Individual Rights, which he calls an important nonprofit public interest law firm California’s New Union Gag Order Violates 1st Amendment (2020). Roth likewise notes that several organizations are taking up class-action lawsuits on behalf of small businesses suing their states and local jurisdictions over COVID-era property restrictions.

Across episodes

The episodes touch individual rights in episodes on campus speech, judicial restraint, the Supreme Court’s power, union litigation, COVID-era property restrictions, and Title IX due process, but they show no development of a shared argument from one episode to the next; each treats the topic through its own guest and setting.

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