Once upon a time, in a country famed for its turkeys and large automobiles, little boys and girls learned in civics class and by watching the Perry Mason show that nobody could just bust into your house without a warrant showing probable cause. You might be sure that a person had done something wrong, but you couldn’t force them to confess to it. And you might be mad at them after you’d proved they’d done it, but you couldn’t subject them to “cruel and unusual punishment.” You couldn’t even make them swear on a Bible in open court if they didn’t want to.
I’m soon going to be explaining how the world works to a few little guys who rely on me for much of their information. And I’m afraid that when it comes to these old certainties, my message about inviolable human rights will be in the more complex form of “they aren’t supposed to violate them, but they will try, so be on your lookout.” I know, for example, that the front door of my house is no secure barrier protecting me from those who might want to meddle with my family’s “persons, papers and possessions,” now that spying has advanced so much (and we give it so many opportunities by living digitally). I also know that in a fight over rights, property or scientific fact, it is not at all a sure thing that the best case will prevail: an antagonist with sufficient wealth and animus can mess up our lives rather dramatically, perhaps abetted by public agencies, before we even have a hearing. And the advisability of whistle-blowing will have to be balanced against the primacy of self-preservation. It’s a terrible thing to have to deliver such a dispiriting version of the American Dream to three friendly, cute and inquisitive youngsters.
And anyway, I don’t care about the American Dream so much. I’d rather have that dream float on a wider Human Community where we can take certain things for granted. Those things are to my way of thinking the necessary (but not sufficient) conditions for there being any politics at all, taking politics to be public deliberation and action by self-organizing communities.
Just as a confession extorted by torture is not actually a finding of fact, and a forced union is not an actual marriage, so the kind of “politics” into which people are herded by armed men or threats of destruction is not actually politics. If I had to put the whole ball of wax of my admittedly non-expert vision of politics into one requirement, it would be this: there should be no situation in which a person is utterly at another’s mercy.
Is that so much to ask? Against the background of human history, it’s a high bar to clear.
People babble about “freedom,” but at a minimum it comes down to this: the preservation of your ability to think, speak and participate. Without that ability, no politics.
The U.S. Bill of Rights isn’t part of the Constitution, through a disagreement on technicalities in 1789-1791. There’s a division of labor between the two. The Constitution says what government is and does; the Bill of Rights says what it isn’t and can’t do. It is composed of three branches, it assigns the role of tie-breaker to the Vice-President, and so on; it isn’t a church, it can’t compel citizens to testify against themselves, and so on. At the time, some of the Founders thought that powers not enumerated in the Constitution were naturally and inevitably retained by the people themselves. It was a fatally good idea to spell them out, and to give them this negative form. A tip of the hat to James Madison for writing these articles and seeing them through to ratification.
Later constitutional jurisprudence expands the scope of these articles: it’s not only the federal government, but anyone at all, who is forbidden from treating you in a way that infringes on the rights there enumerated. Subsequent social developments have thrown up new situations in which the rights had to be thought about more broadly: were enslaved people citizens, did workers have a right to organize, could women exercise political judgment outside the home, did marriage apply to “persons” generally or only to a traditional subset of couples? In these and hundreds of other instances, someone’s freedom of action was being restricted by someone or something else, and society, constitutional conventions or the bench, when asked if that restriction was arbitrary or justified, indicated that it was more logical to consider it an arbitrary brake that should be removed.
And of course there is always opposition from the people who were previously benefiting from those restrictions. If you owned a bunch of slaves, it was most inconvenient to have them running off the plantation or demanding wages. If you ran a coal mine, you didn’t want to waste time answering the demands of the folks who risked their lives below ground for your paycheck. Bill of Rights jurisprudence has in the main held to a benefit-of-the-doubt for the citizen, considering his or her rights, in doubtful cases, as the higher good. But in the age of “corporations are people,” that interpretation is less and less one of the things you can take for granted.
A slide of regression from the idea of personal autonomy is one of the nasty things I see when the pages of the daily paper over the last few decades flash across that inner eye which is the bliss of solitude. Obviously there’s a difference between selling someone a fraudulent mortgage or forcing young girls into undesired motherhood (on the one hand) and straight-out beheading them (on the other), but from the point of view of the Autonomy Fetishist, they’re all cases of the same thing. How about this: a minimal guaranteed standard of autonomy for all, and opportunities to compete for more of it, so long as you don’t take it away from other people’s guaranteed minimum? This is nothing new, but bears remembering. And broadening.
[– I don’t know if this does anything for you, but writing it slightly reduced my persistent feeling of outrage and disgust, so it must have been therapeutic.]