The concept of rights has been turned upside-down in recent years, as the traditional notion of natural rights inhering in the individual has been replaced with a Progressive understanding of rights emanating from the state.

The Washington Post reports, for example, that “gay groups and liberal legal scholars say they are prevailing” in lawsuits against private individuals and companies that do not offer services to homosexuals “because an individual’s religious views about homosexuality cannot be used to violate gays’ right to equal treatment under the law.” The article cites several businesses, including a psychologist and a photographer, that have been penalized in the courts for offering their services only to heterosexuals. And it accepts that there is a fundamental “right to be free from discrimination” that clashes with other, more traditional rights.

But what fundamental rights are harmed if a psychologist or photographer chooses one client over another–whether for religious reasons or more mundane reasons like his bottom line? Is there really a natural “right to counseling” that imposes on psychologists the obligation to take any patient? Is there really a God-given “right to have your picture taken” that imposes on photographers the obligation to snap pictures of all comers? And is there really a “right to be free from discrimination?”

There are, in fact, no such natural rights. As with any “right” that imposes an obligation on another individual, these are inventions of the state, more akin to entitlements than to anything described in the Declaration of Independence or the Constitution. The “right to be free from discrimination” is more a social ideal, a goal for interpersonal interaction, than it is a description of a core characteristic of a human individual, like property ownership or speech. In fact, since these social “rights” impose obligations on others, they tend to infringe upon individual liberty, for instance the freedom of a service provider to specialize his practice. Far from securing “equal treatment under the law,” this tends to create special legal privileges for some and special legal obligations for others.

The psychologist and photographer in question were almost certainly in the wrong. In most cases it would be uncouth to turn away a customer simply because of an objection to his sexual preferences (or race or any other immutable characteristic), even if that objection is grounded in the sincerest religious or moral belief. But to do so is merely rude, not a violation of the customer’s fundamental rights as a human being. It is in fact a violation of the provider’s liberty for the government to enforce an invented right in the name of equality and prevention of discrimination. A better solution than turning to government would rely on two time-tested methods to set things straight: shame and the provider’s bottom line. If you don’t like how the provider runs his business and chooses his clients, you are free to criticize him and take your business elsewhere.

Motivated by the appointment of four Senators in the wake of the 2008 election, progressives want to amend the Constitution to require that all Senators be chosen in popular elections. This idea, put forward by Sen. Russ Feingold, would further undermine the constitutional structure devised by the Founders.

While scoring political points against disgraced Illinois Gov. Rod Blagojevich and his appointment of Sen. Roland Burris may be tempting, conservatives should be wary of signing on to this amendment. Instead, they should make the case for preserving and strengthening Madison’s federal structure—perhaps with the ultimate goal of repealing the 17^th Amendment altogether.

The 17^th Amendment, enacted in 1913, dealt the first blow against the Founders’ structure by maintaining that all Senators be chosen in direct popular elections instead of by the state legislators. But it also holds that in case of vacancy, “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The New York Times carries water for Sen. Feingold’s unhelpful proposal by suggesting that allowing state governments to appoint replacement Senators without voter approval amounts to a “loophole” in the amendment.

Feingold further argues that the appointment of any Senator denies citizens their fundamental rights. “I think of it as a right-to-vote issue,” he tells the New York Times. Of course, the right to vote is nowhere abridged in any appointment scheme, since voters choose the state lawmakers who make the appointment. Now it’s true that voters are only indirectly choosing an appointed Senator, but there’s no reason to believe direct elections necessarily make for superior government.

George Will explains the strengths of the Founders’ design and how the direct election of Senators harms it:

The Senate, indirectly elected and with six-year terms, was to be more deliberative than responsive.

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 — the progressive (in two senses) reduction of the states to administrative extensions of the federal government…

The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the electoral college as originally intended) to reinforce the principle of separation of powers, by which government is checked and balanced.

In The Federalist, Publius makes a similar argument. He maintains that the appointment of Senators by the states promotes federalism by strengthening the power of states against the federal government:  “giving to the State governments such an agency in the formation of the federal government … must secure the authority of the former, and may form a convenient link between the two systems.”

Those who favor limited government ought to think twice about Feingold’s proposed amendment, which would further enervate the federal structure and strengthen the national government, thereby hurting the cause of limited government.

Rich Lowry flags this as the “scariest passage” in President Obama’s address to the Congress (emphasis added):

As soon as I took office, I asked this Congress to send me a recovery plan by President’s Day that would put people back to work and put money in their pockets. Not because I believe in bigger government — I don’t. Not because I’m not mindful of the massive debt we’ve inherited – I am. I called for action because the failure to do so would have cost more jobs and caused more hardships. In fact, a failure to act would have worsened our long-term deficit by assuring weak economic growth for years. That’s why I pushed for quick action.

Lowry may be right that this is politically shrewd rhetoric, since it allows the President “to redefine extensive government activism as simple pragmatism” and potentially redefine the national debate on the size and scope of government. But this is hardly a new argument, however.

Progressives have long couched their arguments for a larger government role as pragmatic responses to the weakness of private, individual action. They do not contend that we need bigger government as such, but instead maintain that since individual action is insufficient to achieve “socialy desirable” ends,  the only viable alternative is government action. Herbert Croly, for instance, argued a century ago that the unequal distribution of wealth was “the inevitable outcome of the chaotic individualism of our political and economic organization.” And since individualism has failed, the pragmatic alternative is for the federal government to “mak[e] itself responsible for a morally and socially desirable distribution of wealth.”

I recently collaborated on two articles about the pending District of Columbia Voting Rights Act of 2009.

1. Voting Representation for the District of Columbia: Violating the Framers’ Vision and Constitutional Commands

Lawmakers must reject any legislative proposal granting the residents of the District of Columbia a separate, voting representative in Congress. Providing such a representative would run afoul of a commonsense understanding of the Constitution, the intentions of the Founders, and more than two centuries of interpretation by legislators and the courts.

1. D.C. Representation: How Congress Promotes the Interests of the District of Columbia

Congress’s latest attempt to grant representation to the District of Columbia by legislative fiat is not only unconstitutional but potentially contrary to the District’s interests.

In its editorial attacking Republican governors for not accepting certain strings-laden federal “stimulus” funds, the New York Times argues that rejecting these monies retards the march of progress: “But even if new taxes are required at some point, the new federal standards would protect more unemployed workers than ever before and bring states like Louisiana, Mississippi and Texas into the 21^st century.”

This is a wholly Progressive argument, reminiscent of Croly. Even if the states have to cede authority to the federal government, the argument goes, expanding the federal welfare state is both an absolute good and the logical next step for “modern” government. To reject this enlightened policy, then, even in the name of higher ideals like individual self-worth or protection of state prerogatives, is callous and, worse, backwards.