Posts tagged Bill of Rights

Column on A Crucial Constitutional Fact

A Crucial Constitutional Fact

Tibor R. Machan

In my efforts to defend the free society and its basic principles, the idea of natural individual human rights, I run across the objection–advance by both conservatives and “liberals”–that once a constitution has been accepted, it overrides those principles. Putting it differently, while perhaps human beings do have the basic rights to life, liberty, property and so forth in, as it is called, the state of nature–that is, prior to the formation of a community with a legal foundation–once that state is given up and a community is formed, they no longer have those basic rights. Instead, they have delegated to government or the legal system the authority to limit the previous freedoms they enjoyed. So instead of the constitution limiting the legal authorities or government, it supposedly limits the rights and liberties of the citizenry.

There is some plausibility in this since in the case of contracts when people enter into them they often bind themselves to obligations and responsibilities they didn’t previously have–e.g., when they marry or lease an apartment. So perhaps the constitution is that kind of a document, through which people commit themselves to abide by rules, even serve rulers, they would be free to ignore prior to entering civil society. This certainly is one rationale being advanced in opposition to libertarians who hold that what the constitution achieves, if properly conceived and instituted, is to establish the protection and elaboration of the rights of the citizenry, something they arguably lacked outside civil society.

Yet even in the admittedly murky case of the U. S. Constitution and the founding of the republic, there is evidence any lay person, let alone legal expert, can detect pointing to the libertarian interpretation that a proper constitution does not give away but attempts to secure individual rights. First of all the Declaration of Independence makes it clear what the American founders set out to do with their efforts to institute a government via the U. S. Constitution. The precise road to the establishment of free government may well be complicated but once one realizes that at heart government is supposed to be institute so as to secure the rights laid out in the body of the Declaration, there is little reasonable doubt that the ensuring setting up of a constitutional government wasn’t meat to abolish individual rights, quite the contrary. Government was meant to give security to those rights in light of the plain fact that without a legal system and its competent administration the rights individual have would be at the mercy of anyone bent upon violating them. Yes, people do have those rights in the state of nature or prior to entering civil society but their security would be dependent entirely on how well individuals are able to defend themselves, without the benefit of a specialized body of men and women who could be counted upon to provide the expertise needed to make those right as secure as humanly possible.

If one then looks at the U. S. Constitution itself, there are other clues to reading it along libertarian lines. The Bill of Rights not only mentions several of the rights that are to be safeguarded by the legal system but makes explicit reference to non-enumerated rights, ones the citizenry retains even if they are not mentioned in the document. This, it would appear, makes it clear, unambiguous, that leaving the state of nature does not imply at all giving up the basic, natural, individual human rights all human beings have.

The point of joining civil society as far as the American system is concerned isn’t, then, to give up but to secure the basic and all the derivative rights human beings have. Those who argue otherwise aren’t on solid grounds. That much is pretty clear, so they must reinterpret the American founding to shore up their case for American statism. Yet some of the most influential legal scholars advance this untenable position–namely that the law in the American tradition aims to limit the liberty and rights of the citizenry–and numerous prominent law schools teach it as well.

Let me make a final point about rights. Much communitarian thinking from both Left and Rights laments that Americans are too fond of rights but not of responsibilities or obligations. Yet if one realizes that having rights also implies having obligations, this lament is quite misguided. Everyone has the legal obligation or responsibility to respect the rights to everyone else. And that is just as it should be, with other obligations and responsibilities left to be worked out in the private sector, mainly via morality and contract law.

Column on What’s So Bad About Exceptionalism?

What’s so Bad About Exceptionalism?

Tibor R. Machan

There is nothing amiss with exceptionalism, never mind the slurs against it by the likes of NYU Law Professor Ronald Dworkin (in The New York Review of Books). To regard the United States of America as a country that’s exceptional–meaning the likes of which cannot be found, provided the reason for this is laudable–is no liability, yet some people consider it so. Let’s see what is exceptional about the US.

For one, it is has a system of laws, via its constitution, that lays out some rather firm principles according to which the citizenry is supposed to have its individual rights to life, liberty, etc., vigilantly protected. For example, this is probably the only nation in which (government) censorship is explicitly forbidden; one in which religion and government are explicitly kept apart; one in which it is against the law to force someone to testify against himself or herself (the fifth Amendment bans coercing anyone to incriminate himself or herself); one in which at least a reasonable attempt was made to protect private property rights (also in the fifth) even though this has been eroded by a repeated and perversely statist misinterpretation of the interstate commerce (Art. 1, Section 8, which mostly likely meant to regularize commerce, not have the government meddle with it constantly) and the takings clauses. And let’s not forget the fact that America has been relatively hospitable to commerce and came quite close in some periods of its existence to amounting to a fully free market, capitalist economic system. All of these were exceptional when compared to most nations around the globe and are so even today.

Moreover, the country began with a declaration that explicitly demotes the federal government from being a sovereign ruler to that of a hired servant of the citizenry. This is quite exceptional, too.

But even if one leaves aside these somewhat legalistic features of America and simply looks at the country’s history, which other country has ever had a civil war that amounted to an adjustment in its laws to conform to its initial revolutionary doctrine of everyone’s equality under the law? More generally, few societies elsewhere have nearly completely abandoned rigid social classes the way these have been in America. (Sure there are economic classes but they are always in flux and membership is never legally inherited.) Moreover, which country in the world, other than perhaps Australia, has opened its borders to so many millions who wanted to live there and absorbed the immigrants so readily as has America?

Of course, the country hasn’t existed without flaws such as its early unforgivable slavery and its vicious treatment of the natives (who, however, weren’t entirely flawless themselves). Even among early African and American blacks some engaged in the slave trade.

Exceptionalism does not mean being pure, only having a markedly better record vis-a-vis justice and liberty compared with other countries in history and around the globe.

When it used to be a struggle to land on America’s shores and millions still made the journey, the exceptionalism was nearly self-evident, for many of the reasons listed above. And hardly any intellectuals disputed this, although there have always been some detractors who wanted to demean the country precisely because of its exceptionalism. But in our time, when hundreds of thousands of European intellectuals have come here, many to take up influential positions at universities and colleges and in the media, the values to which exceptionalism had been related have gotten diluted, muddied, obscured and even denounced.

I have personally sat in the audience when a famous British philosopher, just one among many others, who had abandoned the UK for several US positions in prestigious academic institutions attacked nearly everything for which America has been taken to stand over the years and when asked how come he came here anyway, mumbled something about how it was a personal matter.

I am myself an immigrant and often express criticism toward my new country. Mostly, however, this is because of how determined so many are to throw overboard the principles that made the country exceptional, those laid out in the Declaration of Independence and the Bill of Rights. There is little question, however, that on the whole America has been exceptional–mostly in a good way but in some measure bad, as well. No one should accept the efforts of too many prominent people to deny this.

Column on Tea Party Strategy Anyone?

Tea Party Strategy Anyone?

Tibor R. Machan

My involvement in Tea Party matters is virtually nil. I follow the movement’s doings by reading both pro and con comments on its candidates and leaders, as well as listening to what some of the active members say in public forums. (Let me tell you the snooty Left is scared stiff of the Tea Party and rolling out its heavy guns to demean it, with Glenn Beck and Sarah Palin serving as convenient targets whose lack of academic erudition is held against them in massive articles in prominent magazines like The New Republic and The New York Review of Books!)

As far as I can determine, the Tea Party is a kind of Right Wing populist assembly of people who have disparate ideas and objectives but are united in being disgusted with the leadership in Washington. There is among them room for nearly anyone who shows a positive attitude about main street America. Social conservatives, especially, seem to be welcome, what with pretty heavy moralizing as their central pitch; free market champions, too, tend to be accepted but not if they are also committed civil libertarians who might stand up for illegal immigrants and oppose the vicious War and Drugs; certainly members of the religious Right are not only welcome but often take leadership roles; and there are others, including those loyal to the American Founders and their central documents, such as the Declaration of Independence and the Bill of Rights. (Sometimes they express themselves in questionable terms, such as swearing loyalty to the U. S. Constitution; but that document is now so watered down, so far from the principles stated in the Declaration, that it scarcely says anything about what the country’s political system and public policies ought to be all about.)

I am no spin doctor and do not have my finger on the pulse of the electorate, although I do try to keep abreast. It occurs to me that if the Tea Party is to have a solid chance at influencing American politics and public policy it will have to pare down its message to certain fundamentals and express this publicly in palatable ways.

The one principle that is truly representative of America as the Founders conceived of it is limited government, limited by the principle of individual liberty. Perhaps turning to this message with a clear emphasis on not trying to impose anything else on the country could be successful. If a Tea Party candidate or leader is pressed for views on matters other than the proper scope of government, the answer should be: “No comment on that since it isn’t a part of politics proper, not in a free country!” Yes, it is judicious, prudent to simply refuse to get caught up in all the issues that people may bring to the political table by teaching the lesson that they really aren’t political, even if they are on the minds of millions of people.

Tea Party members, leaders, candidates and the like may well succeed by adhering to this strategy of not allowing their detractors to involve them in everything. They could point out that this country isn’t supposed to be a totalitarian system in which politics takes over everything, addresses all issues on the minds of the citizenry. No, one need not have an opinion on creationism, intelligent design, child reading, drug use, and yes, even abortion. Let most of these topics be part of our social discourse, not our political thinking. That way the central Tea Party theme of reigning in the scope of government is kept in focus and the pluralism of the movement can also continue to flourish but within its proper domain, namely, the variety of social positions the huge tent of those who love liberty makes possible.

Yes, this way of going about things might link the Tea Party too closely with its libertarian faction but that could be a political asset if intelligently put (during interviews, press conferences, etc.). Do not permit the detractors to draw Tea Party people into discussions about matters that are not the proper concern of politics and public affairs. Therein might lie a way to victory, especially now that suspicion with governmental meddling is rife throughout the citizenry.

And this attitude can easily be linked to the central, crucial tenets of the American political tradition, the founding documents and the thinking of the Founders. That they may not all be entirely palatable in our age will not matter if discussions and proposals are kept to essentials. What is exceptional about America is its limited government tradition and moving away from this is wrong, inefficient, and, yes, un-American.