Things Fall Apart. The Center Cannot Hold These Rights

I have been reluctant to respond in the wake of the Supreme Court’s decision to declare marriage rights constitutional rights. I do not feel the need to retread ground that others, more intimately connected to these issues and the conflict surrounding these issues, have covered more adequately and better than I can. However there was one post that has stuck with me. Rachel Held Evans a popular Christian and political blogger, said on her Facebook page (6/27):

“Civil rights aren’t up to a vote. They aren’t up to public opinion. Civil rights are part of what it means to be an American citizen. Theological arguments around marriage set aside for another day, I simply cannot find a single compelling argument in support of denying civil rights to LGBT people that does not rely on an unhealthy marriage (sorry!) between church and state.”

I suppose Ms. Evans may have meant that civil rights are not up for an ordinary vote. If so, then what she said was a bit sloppy, but essentially correct. However, I suspect that what she meant was that Civil Rights are not up for a vote at all. Certainly it’s what was meant when Gay Rights activists in the seventies marched behind a banner reading “Human Rights Are Absolute,” quoting Jimmy Carter. His quote thus takes its place at the end of a long line of ideas that sound like wonderful affirmations of the human spirit until they are subject to five minutes’ thought.

Historically, of course, the idea that Civil Rights are not up for a vote is utter and complete nonsense. The very meaning of Civil Rights is “the rights you have as a citizen.” Do people really not understand the way this works? The Civil Rights we enjoy in the United States were created by a process of voting, from the Articles of Confederation to the Constitutional Convention, up through the Civil Rights Acts of 1964-68. All of those were done by voting. Some were prefigured in the English Bill of Rights of 1688, also passed by vote of Parliament.

To be sure, the Constitution itself declares that it is not the source, but rather the instrument, of the rights. The simple enumeration of these rights, declares the Ninth Amendment does not disparage the others retained by the states or the people. It points to a principle that the rights exist, but are merely codified by the Constitution, or the laws.

However, one of the very rights the Constitution protects, and explicitly enshrines, is the right to alter the Constitution itself, and that includes the Bill of Rights. Which of course, implicitly makes the claim that some rights are more absolute than others. The most important, in this case, would be the right to edit the codification of rights.

So when we say that human rights are absolute, do we mean they are morally absolute, and belong to us no matter what the State might say? Or do we mean that they are legally absolute: that we have a right to laws codifying and supporting our exercise of our human rights?

Historically, of course, we have meant the latter. This very process that we have seen last week meant the latter, except that the courts, rather than the vote direct, were the lever of choice. And when those Civil Rights have not been left up to (or enforceable by) the vote, both our American and British ancestors have fallen back on the other guarantor of Civil Rights: the sword. Which of course, is an even more dangerous precedent to build your human rights upon than the vote, although it is ultimately the same, because never, in the whole history of humanity, has there been an expression of popular will (or legal ruling) that did not ultimately depend on the possession and willingness to use force.

However, if the legal battle is merely over the power to express human rights that permanently exist and are, as Jimmy Carter said, absolute, then where do those absolutes come from? It certainly does not come from “science” or “nature.” A thorough study of science and nature will not lead to the least idea that “human rights” — certainly not rights to “life, liberty and happiness” — exist in nature or because of laws that can be derived.

See, I know Jimmy Carter and his religious background, and I keep coming back to one inescapable source for that absolute. The same one that the Declaration of Independence referenced, right after its 18th-Century Enlightenment appeal to “Nature:”

“Nature’s God.”

The Enlightenment thinkers, the Founding Fathers among them, may have had a lot of problems with their philosophies of life. Unthinking racism, sexism, an acceptance of chattel slavery as the cost of doing business, and a blind trust in a “Nature” they barely understood (hence “natural” rights), but one error they didn’t fall into was believing that an absolute was not required.

The idea that human rights — much less Civil Rights — are not up for a vote presupposes that they are grounded in an absolute truth. This must be clearly understood, because if it is not, then the whole idea that they are in any way special is founded on a lie. Moreover it is founded on the worst kind of lie: the lie that knows it is a lie, and does not care that it is a lie. It is the treacherous lie of the mob to itself that says, “We have created our own absolute, which we know is not an absolute, but we will call it one anyway because it makes us feel better.” Like the treacherous spouse that swears “Until death do us part,” all the while knowing they can call the divorce lawyer if ever they are dissatisfied, rights founded on this lie have no permanence and deserve no respect. At best they are a sort of mass-mysticism of human passion, liable to turn on their present beneficiaries in the next crisis. If we do not see this, we are blind. We can hold to no rights.

If we wish to reclaim our sanity, and to claim our rights are based on an absolute authority, we must identify that authority and its claims. And then we must submit to it. And if there is one thing I see in our nation that frightens and disheartens me, one thing that all sides in our present political morass share, it is the utter unwillingness to submit. Submission is only for our foes to do to us. Which will lead us inevitably back to the Absolute of the Sword.

It is, of course, those who are winning legal support to express their rights that should be most aware of the danger here. They are the ones who were most recently that target of laws that favored others’ expressions of rights above their own. They will feel most keenly the fear that tempts them to use their new power to suppress their old foes. To take revenge. To silence and destroy them. And this is a very real and complex conflict: just how far do we dare press some rights at the expense of others? We have seen above that we cannot treat them as equally absolute. In our present law, the right to change our legal rights reigns supreme. This is perhaps wise, as it allows that we may have erred in the past. But we could make laws immutable, favoring other rights. Legally, anyway.

What right will be favored? The right to express our feelings? Or the right to the feelings themselves, enforced by the binding of expression? Choose carefully. And admit to your absolute. The hypocrisy you avert must be your own.

From Somewhere In Orbit

We Hold These Rights IV: What Is Our Property In Rights?

Preface: In one week, I’ll be going to a conference on the Bill of Rights, sponsored by The Bill of Rights Institute, on Civil Liberty and the Constitution. As part of this conference, I have been asked to read a number of historical documents, written by the framers, their mentors, and those who lived, legislated, and worked within that Constitutional frame. This resonates deeply with me, as I have been struggling for some time now with concepts such as “rights,” “freedom,” and “justice.”  What follow are my thoughts.

In my last post, I discussed Madison’s view that people have rights to property, following the Lockean idea that property exists when a person claims a part of the common through his or her own labor. But Madison also refers to the “property” that we have in our rights. The implication of these intersecting ideas is that we, essentially, “own” our rights in the same way that we own our property. These would be Locke’s rights of life, liberty, and property, though not the franchise, necessarily. That was something that could be reserved for persons who owned other property, in Madison’s day. Now recall what Madison said of property; it is: “every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” Further, “a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them… He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.”

So far, so basic: I have the right to express myself to the extent that I do not make it impossible for you to express yourself. I have the right to practice my religion to the extent that I do not make it impossible for you to practice yours. And I have the right to a free use of my powers so long as I don’t stop you from using yours. But the implications for treating these rights as property are frankly staggering. Locke began his argument for the government as the judge of rights by framing the yielding of a man’s rights to the government as a kind of trade: In exchange for equal protection under the laws, I renounce my right to be the executor of the laws. In other words, rights, whatever their source, can be traded and bartered for other rights by contract, because they are property.

This is a thought that is thoroughly frightening, and I’m sure many of my readers will see it at once, but let’s spread it out verbally: People are commonly thought to have a right to set the price for their own property. Commonly, the price for property is other property. But if our rights are property and our property are rights, then we could also say that the price for our rights is other rights. If we think about it, we make this bargain daily, or at least, those of us who are employed for wages and salaries do: We trade our rights for the “free use of our faculties” for the money of our employer.

Lest anyone say that this analysis merely shows the moral bankruptcy of the very concept of “property” I must point out that substituting “rights” doesn’t take us very far. After all, if you refuse to speak of property, how will you determine who has the right to consume? Any body with the power to distribute the right to consume to one who cannot produce has by definition the power to deny the right to consume to one who can. And that is the very definition of slavery. Slavery does not, however, consist in the trading of rights for other rights: that, it is obvious, as we have seen.

Where we do get very close to slavery, however, is when our power to make trades becomes limited, as we observed in our last post, by those private or public powers who can use disparities of power to force a trade which can be of benefit only to their own side. When labor is so plentiful, and money so scarce, that 100% or more of a person’s capacity for labor must be exchanged to obtain the bare minimum of property s/he must consume to stay alive, we have effective slavery.

We have it in other areas, as well. We have in the Constitution rights to freedom of speech and of the press. But we have never interpreted that to mean that we have the right to use instruments of speech and press that are the property of others. If, however, the means of communication are such that 100% or more of a person’s capacity for labor must be exchanged to access (or create) these instruments, we have effective censorship.

Moreover, if we have the right to “the free use of (our) faculties and free choice of the objects on which to employ them,” that implies the right NOT to be communicated to, if communication is undesired by us. If the communication of others is inescapable, or nearly so, our right is violated. I find it curiously ironic, upon George Orwell’s recent birthday, that so much attention was paid to Orwell’s message on the right to self-expression, when the truly oppressive quality of Orwell’s dystopia was not so much that his hero could not speak, but that he could not escape the incessant, unfettered speech of the Oceanian State.

The only solution I see to this problem of our property in rights is by appealing to the most basic principles of contract, though that is problematic, too. After all, a person is held responsible, and thought responsible, for signing a bad contract, and is held to the terms of that contract, even if it spells financial ruin. But no contract is valid which confers no benefit to one of the parties. And if a person is in such a situation, where his or her rights must be traded away for no benefit, the conclusion must be that the contract cannot be a binding one. The dividing line between a bad contract and no contract is not always so easily seen, however.

The other corollary I see here is this: the Bill of Rights denies to the government many powers, especially powers that limit the freedoms of citizens. It seems to me impossible that the founders meant to make it impossible for the government to oppress its citizens, while at the same time guaranteeing the right of certain citizens to oppress their fellows. Since the Citizens United case, much has been made of the slogan that “money is not speech.” This has always struck me as naive in the extreme: of COURSE money is speech, and always has been. The purpose of the First Amendment is in part to make sure that my money is as good as yours for the purpose of buying the paper, ink, airwaves, bandwidth, etc. that goes into spreading speech. It was written to ensure the government could NOT consider opinions a type of currency that trumped money. But now we run into an inherent contradiction that I cannot as yet resolve: when YOUR opinion is worth more to you than MY money, and you are willing to ignore my money to propagate your opinion (especially if YOU control the medium in question), then has the government not granted to you the power from which it has recused itself: to silence, effectively, my point of view?

I’d love tto hear some opinions here.