Segment from Balancing Acts

The Rights Stuff

The hosts contemplate an essential problem of rights ever since the American Revolution: We need the government to protect the rights we claim against it.

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ED: hosts, I’m a little puzzled about something. Maybe you can help me figure it out. Seems to me that we’re living in the golden age of rights, right now. It seems to me that more people have more rights in more facets of their life than we’ve ever had before.

You know, whether it’s the right to vote for African Americans, or its right to a living wage, or right to marry– over and over again. But the problem is that those rights only come if the government gives them to you– either the courts or Congress or the president. But in order to get them, you have to say, the government is deeply flawed in some way.

BRIAN: Yeah, because they didn’t give you any rights.

ED: Yeah, exactly. So, I mean, 40 people get traction in this kind of slippery environment.

PETER: Yeah, well I think the key, Ed, is idea of progress– that the government may be defective now, but it can be better in the future. And one of the measures of its progressive improvement is that more rights claims are recognized and enforced. I think it’s a nice story, and it’s the story we tell about American history.

But if you go back to the very beginnings, the original right claims, of course, are against the legitimate government of the time, and it’s not just that the British imperial government is flawed– it’s fundamentally wrong and despotic. And you have to kill the King. So, here we have–

ED: You need less government to have more rights, is what you’re saying.

PETER: That’s right. This is where the idea of the stative nature, writing constitutions, beginning the world anew– that’s what Americans cherished, in the revolutionary idea that somehow, they were starting from scratch, and they could get it right. They could respond to the higher call from nature and nature’s God to create a government that would be truly representative, that would be a people’s government, that would be the great enforcer of rights.

ED: Nature’s God. What do they mean by that?

PETER: Well they mean that there’s some kind of higher law, against which you measure all governments. Now that’s great when you’re revolutionaries, and you’re looking for reasons to destroy an old government, but then it could be turned against you. And I think that is the American story.

BRIAN: And Peter, is that where individual rights come from? From that Nature’s God, from that higher law?

PETER: That’s right. And the real challenge in the revolutionary period to get people out there fighting and dying for the common cause. And you do it because everything is at stake for them. It has to be deeply personal. But here’s the paradox– it’s deeply personal, and a social cause. They’re mobilizing to make war, and they are, in effect, creating a new government, and dying for it, in order to overthrow an old one to establish their new regime, which will presumably protect their rights.

ED: And as soon as they make this new government, then other people are saying, whoa, you’ve compromise way too much. Nature’s God would say there shouldn’t be slavery.

PETER: That’s right.

ED: But the slave holders say, but, that Constitution grants me these rights in property. And the Civil War is the result.

PETER: Well, Ed, they’d go beyond that. They’d say, it’s not just the Constitution, because it’s both Southerners and Northerners rejecting the Constitution– that is, the rights that have been codified, written down. And they’d say, we have a property right in human beings, in our slaves, because it’s a positive good. It’s meant by nature. They’ll still use God– that’s why religious leaders are so crucial to the Confederate mobilization, because God is on their side, too. So this notion of a higher law can cut both ways. And I think that’s the story of rights in America.

ED: So we have this tough situation. The Civil War gives us the 13th Amendment to end slavery, the 14th Amendment to grant citizenship, the 15th amendment to grant voting rights. And it’s followed by a great period of inequality, injustice. And what happens? The Supreme Court says, hey, that 14th Amendment– that’s really about corporations. If you find who steps up to take advantage of these new powers, ironically, it’s people who aren’t even people. It’s corporation. So–

BRIAN: Yeah, they say the government’s flawed, because we’re not being given our rights– corporations.

ED: Exactly. And there’s a great sense that maybe this system is so flawed that we can’t really use it anymore to advance social justice. And that’s maybe why there’s such a long period without amendments.

BRIAN: Yeah, but when we get back to amending the Constitution, Ed, women say, you know, what kind of government is this, that can leave out half the population? By the way, half the population that has been training men to vote, and be soldiers, and be good citizens for centuries. We, too, are good citizens. We are absolutely entitled to the right to vote.

This government is flawed. We’re going to fix with the 19th Amendment. And then, we’re going to turn to that government to enforce that set of rights.

ED: Yeah. And it starts to mean, Peter, that they’re appealing to the rights of the Declaration of Independence that you were talking about– Nature’s God. Not only are they saying are we the better half of the population, training up all the men, but it’s also the case that all people, regardless of arbitrary things such as their gender, should have rights.

PETER: Well, it sounds as if we’re moving toward this golden age that Ed started with, in which the government– the great enforcer of rights– is flawless. Well, somehow it doesn’t feel that way, does it? And why doesn’t it feel that way?

I think we should go back to the original premise, that if we think of rights not as coming from the government, but some claims that we’re making against the government, then I think that sets up a different dynamic. And we still have a sense, this deep unease, that we’re not able to act together, collectively, and control the government in ways that serve our purposes and larger purposes. And that’s deeply frustrating. And it leads to apathy, and turning away from government, as if government were the problem, not the means of addressing our problems.

ED: So you find that, both from the left and the right, people feel the same way? The Tea Party says the government’s the problem. The people on the far left are saying, there are human rights that actually transcend all this compromised machinery of government. That’s what we need to appeal to. So it strikes me we’ve kind of come full circle.

This is just the same issue that the founding fathers were wrestling with. You have to build a machine to enable rights. But as soon as you build a machine, it’s flawed. It’s an inadequate conveyor of the nature’s bestowal of rights. Seems to me that we’re kind of stuck in sort of a box.