Thomas Jefferson and the other American patriots who framed the U.S. Constitution were wary of government power, even of the federal government of these United States that they themselves had created in 1787 at the Constitutional Convention in Philadelphia. Therefore, to further protect the personal liberties of the American people from future usurpation by the federal government, they added the Bill of Rights, the first ten Amendments to the Constitution.
Even then, James Madison (1751-1836; 4th U.S. president and master builder of the U.S. Constitution) admonished citizens, in the Federalist Papers in 1788: "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpation."
When Thomas Jefferson wrote the Declaration of Independence, he followed a path blazed by John Locke that extended as far back as the Medieval philosopher and scholar St. Thomas Aquinas (1225-1274) and even to the Roman statesman Cicero (108-43 BC), who first enunciated the nascent philosophical tenets of the Natural rights of citizens, the basic rights to life, liberty and the acquisition of property. These rights were inalienable, inviolable and impermeable to government decrees. Thus, St. Thomas Aquinas held the belief that if human law "deflects from the laws of Nature, it is unjust and is no longer a law but a perversion of the law." (1)
The Roman stoic philosopher and orator, Cicero, did not believe in the Judeo-Christian God; nevertheless, he recognized Natural law and vehemently predicated that the power of the state be limited. He wrote:
[W]hat is right and true is also eternal, and does not begin or end with written statutes. ... From this point of view it can be readily understood that those who formulated wicked and unjust statutes for nations, thereby breaking their promises and agreements, put into effect anything but "laws." It may thus be clear that in the very definition of the term "law" there inheres the idea and principle of choosing what is just and true. ... Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to nature's standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good. (1)
Natural rights embody the concept of individual autonomy and negative rights that are inalienable and inherent to human beings. Natural rights (e.g., life, liberty, the owning and disposing of property, and the pursuit of health, occupation and happiness), like human rights, can be exercised by all individuals simultaneously without infringing and trampling on the rights of others (i.e., negative rights concept). When governments transcend these rights with welfare rights, entitlements and redistribution of wealth schemes in the name of compassion, utilitarianism or some "greater good" it squarely infringes upon the autonomy and basic rights of individuals and corrupts the negative concept of the law.
The French statesman Frederic Bastiat (1801-1850) in his monumental book "The Law" wrote that negative laws impose nothing upon the individual but a mere negation of unjust actions. "[The laws] oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor, his property. They safeguard all of these. They are defensive; they defend equally the rights of all." Moreover, "[W]hen the law, by means of its necessary agent, force, [imposes] upon men a regulation of labor, and method or subject of education or religious faith or creed then the law is no longer negative. It acts positively upon people. It substitutes the will of the legislature for their own will." (2)
Natural rights are akin to human rights; and it is worth repeating, they are the rights to life, liberty, the acquisition of property and the pursuit of happiness and one's life interests and avocations without interference from others, as long as those actions do not infringe on the rights of others. The enumerated rights in the U.S. Bill of Rights were drafted so as to abide by this important concept entwined and connected with the concepts of civil liberties, individual autonomy and the negative concepts of laws.
Why have we discussed this political theory of Natural rights and the concept of the law at such length in a purported article about the fall of Fidel Castro and the future government of Cuba? Because these concepts should play a definite and substantive part in the future constitutional governance and polity in the Caribbean nation. Cuba and the Cuban people have suffered enough. Enough is enough! We need to blaze a new path for the future of a free Cuba.
It should be pointed out that Cuban exiles (and other Latin American and European writers) are not the only ones confused about Natural rights and the Republican concept of constitutionally protected, traditional rights. Americans are, too! For example, a 1987 survey by the Hearst Corporation found that only 41 percent of Americans knew that the Bill of Rights was comprised of the first ten Amendments to the U.S. Constitution; 75 percent incorrectly believed that the Constitution guarantees the right to free public education; and 42 percent believed that the document guarantees every citizens the right to health care for those who cannot afford it! (3) In fact, those are welfare "rights," more appropriately termed government entitlements.
The rights to life, liberty and property (meaning the right to acquire, own or dispose of property as one sees fit) are the classical examples of Natural rights, basic rights which are inherent to a person and which do not infringe on the rights of others. Thus, Natural rights are negative rights. The problem with positive rights, on the other hand, rights that are granted by the government, is that they are subject to the whims of the State and the blowing winds of political expediency. Thus, subject to the foibles of human beings and the passions of the moment, they may be arbitrary and unjust, and encroach upon the basic rights of other individuals. Furthermore, we are still left with the problem that what the State gives, it can also take away. Natural rights transcend the State and are derived directly from God or Nature and thence are not easily subject to the caprice or whim of government.
Again, remembering Professor Alex Fraser Tytler (1714-1778) of the University of Edinburgh in Scotland, who mused on the lessons of history in this case, the fall of Athenian democracy we recall:
A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury, with the result that a democracy always collapses over loose fiscal policy, always followed by dictatorship. The average age of the world's great civilizations has been 200 years. These nations have progressed through the following sequence: from bondage to spiritual faith, from spiritual faith to great courage, from great courage to liberty, from liberty to abundance, from abundance to selfishness, from selfishness to complacency, from complacency to apathy, from apathy to dependency, from dependency back to bondage.
Many people think health care is a right. One certainly has a right to pursue his own health and to lawfully acquire his own property, but not to accept stolen property or, by the same token, receive it from the State as legal plunder. Health care is not a Natural right, just as there are no rights to shelter (housing), clothing, food or a paid vacation to Acapulco or Miami Beach. (1) In essence, no individual is entitled to the services or the fruits of another without just compensation, compensation that should be arrived at freely by voluntary, legal contract. The State should function to protect individuals from coercion or fraud as they pursue those activities in a free marketplace. That and securing freedom, in fact, should be the sole functions of government in a free society.
And yes, there is a definite place for compassion, philanthropy and charity in society, but they should be freely given by individuals without requiring the participation of the hand of government or the required legal plunder by the State, plunder which is necessary for government wealth redistribution schemes. Participation by the State only brings the element of coercion and the use of force in human transactions.
What should Cubans learn from this lesson? Cubans should learn that when the new Cuba rises like a phoenix from the ash heap of totalitarian communism, the new generation must not repeat the mistakes of the past. As venerated as the Cuban Constitution of 1940 was, we must recognize that it was a consensual document in which many disparate groups, including communists and democratic socialists, participated with their own agendas. Let's face it, it was not a document imbued with philosophical principles of Natural law or any transcendental statesmanship, and so, it was doomed to failure. Many of the individual "rights" granted in that document were largely government-granted entitlements. It was a document of the Latin American Left, which, although it was supported at the time by American politicians for Cubans, it was not a document they would have wanted for Americans then or now.
The Cuban Constitution of 1940, for example, also granted, in Article 34, "the home is inviolable except in cases and form as determined by the law." This qualification does not impede the State from raiding homes because of unjust laws passed or decreed by rogue officials, who have ascended the ladder of power by democratic means or any other means. Instead, consider the Fourth Amendment to the U.S. Constitution that states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." As Thomas Jefferson wrote, don't speak to me about good intentions; men must be bound from mischief by the chains of a constitution.
José Martí, Cuba's greatest poet and the apostle of her independence, admired Jefferson and also yearned for Cuba to become a just, productive and prosperous nation of small shopkeepers and independent farmers, who worked and owned their property in freedom. When the Manufacturer of Philadelphia published a pejorative, blistering editorial against Cubans seconded by the Evening Post of New York (March 21, 1889) that argued against annexation of the island from Spain, Martí quickly responded. The article was extremely denigrating to native Cubans as not worthy of being ruled by the United States.
In a long and powerfully written letter to the editor, Martí, exiled and living in the United States, rebutted each point in the article. Moreover, sharply and incisively he wrote that Cubans admire this country [United States], the largest of those which have erected liberty; but we mistrust those ill-fated elements, who like worms in the blood, have begun portentously the work of destruction of this Republic. They [Cubans] have made the heroes of this country their own heroes, and yearn the definitive triumph of the North American Union, as the greatest glory of humanity; but they cannot believe honestly that excessive individualism, the worship of wealth, and the prolonged jubilation over a terrible victory are preparing the United States to be the nation which typifies liberty, where there will be no opinion based on the immoderate appetite for power, nor acquisitions or triumphs contrary to goodness or justice. We love the nation of Lincoln, as much as we fear the nation of Cutting [American journalist]."(4)
Certainly, at a most indignant moment, it's easy to understand why the Cuban apostle could bring himself to question American's notorious individualism in the Gilded Age and possible imperialistic designs as an emerging world power only 90 miles from Cuba's shores. "Gunboat diplomacy" was also just around the corner. As to the individualism that at the time was referred to proudly as "rugged individualism" and which, incidentally, preceded Herbert Spencer's social theory of survival of the fittest, it has been tempered by time, perhaps too much so.
As for colonial or imperialistic designs, after both World Wars I and II the United States had its chance to establish an empire that could have virtually ruled the world, if the United States had wanted to do so. Nazi Germany under Hitler or Soviet Russia under Stalin, you may be sure, wished they had that chance! Instead, the United States chose to concentrate its interest in America, even refusing to join the League of Nations and thereby being called isolationist. For the most part, the U.S. only set an example for freedom, justice and free market capitalism, incarnated in the Statue of Liberty and Wall Street, that the world today, more than at any other time in history, wishes to follow.
Despite the acrimony generated by the nature of this exchange, it is easily discerned that Martí admired the principles on which the U.S. was founded, although he, like other Cuban patriots, mistrusted the rampant colonialism and imperialism of the great powers of the time.
The notorious Cuban Constitution of 1940 also granted welfare rights and entitlements that did not belong in an enlightened document that is supposed to limit the power of government. It also interfered in transactions and other activities that in a free society properly belong in the marketplace. For example, Article 60 stated that "work is a right inalienable to the individual." This verbiage does not connote the meaning we give it in the U.S. today, namely, that labor unions should not bar non-union personnel from employment (i.e., against closed shop). In that constitution, it meant that the State should employ "all resources and assure" employment to everyone. And in Article 61, the government should participate in all aspects of work and employment in the private and public sector, including minimum wages, salaries, pensions, working conditions, bonuses, social security, etc. (5)
Again, none of the aforementioned benefits are legitimate, individual rights, according to the concept of Natural rights theory. They are welfare rights, collective entitlements, granted by government while interfering in the function of the free market and distorting the laws of economics.
After the fall of Fidel Castro, the next generation of Cubans will have to decide whether Cuba will be a collectivist, social(ist) democracy, which will buy people's vote with welfare rights (entitlements) while living at the expense of the productive segments of society, or whether the Pearl of the Antilles will become a Constitutional Republic, where all citizens are equal in front of the law, are imbued with inalienable Natural rights and governed by the rule of law, rather than the capricious rule of another future tyrant.
1. Faria MA Jr. Health care as a right. Medical Warrior: Fighting Corporate Socialized Medicine. Macon, Georgia, Hacienda Publishing, Inc., 1997, pp. 94-103.
2. Bastiat F. The Law (1850). Reprinted by The Foundation for Economic Education, Inc. (1990), Irvington-on-Hudson, NY, pp. 5-54.
3. The Hearst Corporation survey of 1987 cited by Dr. John Eidsmore in The Bill of Rights securing that which is God-given. The New American 1991;26(7):21-28.
4. Martí J. Vindicacion de Cuba. The Evening Post, New York, March 25, 1889. For other writings of José Martí, visit http://www.josemarti.org.
5. The text of the Cuban Constitution of 1940 and other important historic documents are contained in Mijares, José, Proyecto Para la Reconstrucción Completa De Cuba. Tampa, Florida, 1993.
Miguel A. Faria Jr., M.D., is Editor-in-Chief of the Medical Sentinel of the Association of American Physicians and Surgeons (AAPS), author of "Vandals at the Gates of Medicine" (1995) and "Medical Warrior: Fighting Corporate Socialized Medicine" (1997), a contributor to NewsMax.com and a columnist for LaNuevaCuba.com. He is currently working on a book about Cuba that will be released this fall.