Conservative Colloquium

An Intellectual Forum for All Things Conservative

Conservatism, Libertarianism, and Children’s Positive Rights

Posted by Tony Listi on August 13, 2010

Libertarians sometimes complain that Big Government treats its citizens like children (e.g. using the adjective “paternalistic” to describe govt.). They also denounce the notion of natural positive rights, which are rights that compel others to do something, and uphold negative rights only, which compel others to refrain from doing certain things.

The irony of all this is that many libertarians don’t see that these two concepts, children and positive rights, are related. The government should not treat its adult citizens like children because adult citizens have only negative rights and no positive rights. But the inherent logic of this sort of argument seems to dictate that children have positive rights, unless one wants to erroneously assert that no one has positive rights.

Adulthood, legally defined according to age as a matter of prudence, carries with it a moral responsibility to take care of oneself rather than demand others take care of you (which is what children and statists do). Thus one major reason why the welfare state is immoral: it forces some citizens to care for other citizens as if the former were parents and the latter were children when in fact everyone is an adult. Adults are expected to be mature, self-sufficient, cooperative with others, rational, independent. Thus they have no positive rights.

Children are irrational, dependent, and helplessly weak by nature. Yet they are still innocent human beings, persons with human dignity. It is children’s irrational, dependent, and helplessly weak nature that confers upon them natural, individual, positive rights. They have a right to attention and care for their physical, emotional, mental, and spiritual well being. It is an evil and an injustice for a child to be neglected or abused.

But upon whom do children have these rights to attention and care? Not upon everyone. Not upon the State. And not upon just any random person. It is parents who are obligated to provide attention and care insofar as they are able to; it is upon them that children have positive rights. Why upon parents? Because the parents gave their children life and existence and are thus responsible for their children and their children’s rights. One would think this would be self-evident but apparently not in this decadent era and culture.

It is the concept of children’s positive rights that separates conservatives and libertarians philosophically. From this concept springs the conservative’s commitment to pro-life and pro-marriage public policy. The inherent moral differences between adulthood and childhood cannot be ignored or glossed over when it comes to political philosophy.

The purpose of government is to protect people’s rights, both natural and civil, both positive and negative, as far as it is possible for government to prudently do so. Of course, this purpose assumes an accurate determination of what rights human beings actually have and what differences among human beings really matter.

Not only does the child in the womb have negative rights against being killed, but he or she also has positive rights upon the mother, a right to her body and the sustenance it provides. (However, if the baby actually does pose a threat to the life of the mother, which is extremely rare and usually means the baby would not survive either, one may save the life of the mother by infringing on the positive rights of the child but not the negative rights. One may remove the child from the mother but not actively kill the child through violence.)

The government has a duty to protect both the positive and negative rights of the unborn son or daughter as prudently as possible. Outlawing abortion and prosecuting abortionists seems very prudent. Because the preamble to the Constitution reveals that our founding document was meant for “posterity,” i.e. the unborn, and their rights too, I believe one can make a sound originalist, constitutional argument for federal involvement in protecting the rights of the unborn. But if not, I will take the states’ rights alternative as the next best thing. Even pro-life legislation has to be constitutional to be enacted, for the rule of law according to founding principles (e.g. federalism) is more important than any individual right or single issue.

Once born, how well these positive rights of children are secured is intimately tied to the character of the relationship between mother and father. The purpose of marriage as both a civil and religious institution is to ensure that the relationship between mother and father is best suited for the procreation and raising children. As a civil institution, it has no other purpose. Children are best raised by their biological mother and father (see here also). If the relationship between mother and father is unstable and unloving, the child’s positive rights will suffer in a variety of ways.  Because homosexual relationships are absolutely sterile by nature (not by dysfunction), they do not deserve any legal recognition whatsoever. (And the legalized separation of children from their biological fathers and mothers through sperm and egg “banks” is immoral and should be outlawed. No one has a “right” to a child and such “artificial” children suffer psychologically.)

The government has a duty to protect the positive and negative rights of children as prudently as possible. American society recognizes that children have negative rights, thus the laws against physical and sexual abuse. There are very few things that government can prudently do to secure the positive rights of children without causing greater evil. However, through prudent regulation of the institution of marriage, it can promote more stable, enduring marriages, which in turn will help secure children’s positive rights. Legally defining marriage as the union of one man and one woman, repealing no-fault divorce, and treating marriage like a corporation are a few basic, prudent measures government should take to help strengthen marriages and thus better protect the positive rights of children. Because of the Full Faith and Credit Clause of the Constitution, I’m not sure how one can avoid a national marriage policy. But again, if the states’ rights alternative could work, I’ll take it as the next best thing. Even pro-marriage legislation has to be constitutional to be enacted, for the rule of law according to founding principles (e.g. federalism) is more important than any individual right or single issue.

Many libertarians like to say that “liberty is indivisible” and that conservatives are inconsistent for dividing economic and individual/social liberty. But in reality, conservatives absolutely agree that liberty is indivisible. We are not inconsistent; we just have a different view of human nature and rights. It is merely the case that many libertarians are unwilling to acknowledge the obvious and relevant differences between adults and children with regard to rights. This self-evident and empirical distinction among human beings is what libertarianism seems unable to handle morally and humanely.

10 Responses to “Conservatism, Libertarianism, and Children’s Positive Rights”

  1. AZL said

    does the govt have the power to strengthen the institution of marriage? does he govt create marriages, or recognize them? if two people are married on paper, but do not behave accordingly, does making it harder for them to dissolve the legal entity help strengthen the institution?
    or do you imagine repealing no-fault divorces is going to have a deterrent effect? like people wont get married because NOW they will *really* have to think about it.
    how many marriages do you think, at present, are joined because of the knowledge that there is an easy separation available? i would think it would have to be many, if such a deterrent were to be successful. but i dont see any evidence that that is the case. in fact, anecdotally, i see quite the opposite: the process of divorce is rarely a consideration in choosing to get married.
    if im right about that – that most people dont take divorce into consideration when getting married – then repealing no-fault divorces would decrease the number of divorces but not the number of marriages.
    so what then? do u imagine people who would otherwise get divorced would just give up that idea and decide to “work things out” as a plan B? or is it more likely that the marriage would just become a sham, an entity that exists only on paper, while both parties decide to live as if they were not?
    im not seeing the connection here between no-fault divorces and ‘strengthening the institution.’

    and outlawing sperm banks… because it immorally separates parents from offspring? how do u feel about adoption? seems like the only difference [aside from some mechanical details] is when the custody agreement takes place – before or after conception.

    • Tony Listi said

      Government doesn’t create marriage; it merely recognizes it. Government (though not the federal govt. currently) has the authority in principle to create conditions that better secure the positive rights of children.

      Making marriage harder to dissolve legally WILL cause people to think about it more seriously. Divorce should be costly on a variety of levels, including legally. And people respond to high costs. People currently don’t think about the possibility of divorce when they get married because divorce isn’t as costly a process as it could be. With high costs, people will take it seriously and thus the institution will be strengthened.

      Yes, many couples will decide to try to work things out and truly love each other if the costs of divorce are very high. Most couples who stick it out find happiness.

      No, that is not the only difference between adoption and sperm banks. Sperm banks are the INTENTIONAL separation of children from their biological parents. Adoption is the attempt to give good adoptive parents to children who have been separated from their biological parents because of some tragedy such as the death or incapability of their biological parents to care for their children.
      Children should NEVER be created with the explicit and direct intention of separating them from their biological parents. That’s cruel.

  2. […] Comments AZL on Conservatism, Libertarianism, …bernie on 95 Uniquely Catholic Passages …"c" on 10 Reasons NOT to vote for…Religion […]

  3. brilliant i enjoyed reading it

  4. von said

    A good article. I quibble in a couple of areas, but beyond that, great. Have you read Peter Kreeft’s book ‘The Unaborted Socrates’?

    • foospro86 said

      I’m a fan of Kreeft even though I’ve never read any of his books. I’ve just read his articles and watched his lectures online.

  5. […] what is lost in all this self-righteous chest-pounding for recognition are the rights of children. They have a right to care, love, and protection from their mother and father, the two people who […]

  6. […] attach mothers and fathers to their children and to each other for the sake of their children and their children’s rights. Marriage as a civil institution is about children; the law should recognize it as […]

  7. Dave said

    I agree with your positions but I disagree with the existence of the state.

    • Tony Listi said

      You “disagree with the existence of the state”? What does that mean? Try not paying your taxes and you’ll find out the state really does exist, haha.

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