Tom posted on this today at his site. Apparently this dispute comes up a lot (do tell!). So opportune time again to agitate for a course on the foundations of ethics/morality and liberty.
I think that the thing that ultimately causes people to believe that rights “come from the state” or, at best, are “socially constructed” is the Social Contract theory/foundation, which ties the origination of a society to the foundation of a government.
But this has always been a faulty premise: 1) some sort of society must pre-exist for people to have the basis of common understandings that would cause them to believe contracts between them would be not just mutually binding, but mutually observed (that’s what distinguishes the group making any given social agreement distinct from that group on yon hill that they don’t include, for one thing) but also 2) it presumes that societies are coterminous with political boundaries (a Ven Diagram would be useful here); but this is not necessarily so. At all. 3) “Rights” that come from the State are no rights at all; any libertarian should easily see that if rights are a creature of the state, then they are subject to modification by that state at any time and for any reason; so they are not rights at all. At least not rights in a philosophical sense – they would then only be “rights” from the point of view of rhetorical/political instrumental utility in polemical squabbles between competing groups under the state; I.E. Sandra Fluck’s “right” to reach into the pockets of other people to compel them to pay for her lifestyle choices, and it’s a “war on her” if you don’t submit without even objecting. But those kind of “rights” are only enforced against competing factions within a polity; they are not enforcable against the state, by definition, unless the state wants to pretend to enforce them in some cases for it’s own purposes (in which case they would do so anyhow, and “rights” remain a fiction).
Now, me, I also think speaking of “rights” such as “the right to this or that” is at best only useful as a convenient shorthand. It really only makes philosophical sense to talk about liberty, and any “right” is just a facet of liberty-as-a-whole. But, again, this post is long enough.