Human Rights -- How?

[The break in my Tom Cruise series continues. I'll get back to it in a day or two.]

A new year, and wouldn't it be nice to have a new life for each of us? Hence my topic today, human rights. I'm going to say some things that have probably been said many times before (surely in the Federalist Papers, for example -- what a trove! I need to reread them someday), little things that get missed about the nature of human rights and slow us in making them real.

The question I'll be trying to answer is, how do we achieve human rights for ourselves and others?

1. Many of us have human rights confused with Democracy. There's little connection. Pure democracy means rule by majority, and tends to mean that the majority defines the rights of any minority. In the United States, one purpose of the various checks and balances in our government was to limit democracy. Our Founding Fathers feared "mob rule". And even the educated citizens Jefferson hoped for (do we have them now?) would still, in a pure democracy, give us tyranny of the majority.

We have a Senate as well as a House, because Senators (being 2 per state, no matter how large or small the state) counter-act the democratic tendencies of the House, where "Representatives" represent approximately equal numbers of individual voters. That is, at least in terms of states, the fact that there are two senators from Rhode Island as well as from New York prevents large states from utterly dominating small states.

But the part of the Constitution that is most blatantly undemocratic is the Bill of Rights -- added to the Constitution as amendments one through ten because Madison feared that INDIVIDUALS were insufficiently protected from tyrannic actions by government institutions (or by the government that serves a majority of its citizens).

Each right in the Bill of Rights LIMITS democracy (or any other form of government, in theory), because it says that the majority (or its government) cannot deprive individuals of certain rights. I have the freedom to speak out, even if my views are unpopular with the majority. In a pure democracy, the majority could vote to outlaw my speeches.

Even the freedom of assembly is an INDIVIDUAL right, not just a group right. It gives me the right to join a group and meet with that group. If a group can't assemble, that inhibits my right to be part of a group.

So living in a democracy does not insure our rights, and getting other nations to become democracies does not insure human rights in those democracies. Hitler became the chancellor of a democratic Germany (a representative democracy somewhat like ours). He got into office by means of popular election. The majority ruled -- and how!

2. Many people think that the way to have human rights is to have them declared in a national constitution, in a nation ruled by law and where the highest courts are sworn to defend that constitution. I think that such a constitution may be of use where such rights are already widely respected, but when we, as citizens, no longer agree that these rights should be inviolable, the Constitution becomes a scrap of paper. (Of course, then we no longer have much of a rule by law.)

For example, the Soviet Union, which respected none of the rights we consider basic, had a constitution full of lip-service (or pen-service) to the rights it routinely violated. And our own constitution is now so routinely violated by our own government, that when a Congressman (Ron Paul, a libertarian Republican from Houston, Texas) votes against bills that clearly violate the constitution, he is considered a reactionary freak.

I don't think of our Constitution as a perfect document. After all, it recognizes slavery (a political necessity at the time in order to get the Constitution accepted). But anyone reading it newly will see that we no longer live in a nation that resembles what the Founding Fathers had in mind. We violate the reconstruction amendments by passing laws that discriminate on the basis of race, justifying them as reversing past discrimination. We punish people (including citizens) without due process (for example, a trial by jury of their peers), justifying this on the basis that such citizens MAY be terrorists. We deprive people of property without due process on the basis that other people may have used that property (under drug laws promoted by Clinton -- Bush isn't the only villain here). We "commit" hundreds of thousands of citizens to confinement (imprisonment) and torture (enforced drugging and shock and being strapped into beds) without a fair trial or even their being accused of a crime; this occurs under psychiatric commitment laws (e.g., the Baker Act).

Volumes have been written on these subjects. Some are more controversial than others: For example, the Constitution explicitly forbids an income tax, and, say some constitutional experts, the amendment that authorized an income tax (since which our economic growth has gradually stagnated) was never fully passed. But the courts and many other constitutional experts hold that the amendment is now part of our constitution.

The Constitution calls for a nation composed of almost-sovereign states, in which specifically stated (and very limited) powers were granted to the federation of states (the federal government), all else being left to the states or to individual citizens. States and local communities used to run the schools. Now the schools depend on federal funding, so follow increasingly all-important federal guidelines (and with all the federally mandated improvements, student performance continues to deteriorate, which the Government pays schools hundreds of dollars for each child put onto drugs for that mythical ailment, ADHD). States and localities used to do most of the taxing. Now it's mostly federal. And much that used to be left to individuals (for example, medical plans) is now constrained by federal mandates.

Originally only those things obviously done best by a federal government were to be done by that government (for example, conducting war or defense) -- all else to be handled by states and localities and individuals. Anything not specifically designated a federal power was left to the lower echelons of government (see Bill of Rights).

The so-called "elastic clause" of the Constitution gave Congress the right to do anything "necessary and proper" to carry out its designated mission. That opened the door to expansion of Federal power. We need to conduct a war, and we can't do it unless we're allowed to eavesdrop on communications between citizens -- or so it has recently been argued, one example among thousands.

But we haven't been at war since 1945, per the Constitution. That's the last time we were in a conflict where Congress had actually declared war on other nations. So when Bush uses "War on Terror" as a justification for harsh wartime measures (as Clinton used the "War on Drugs), Bush is simply trashing the Constitution. The Constitution says exactly what MUST happen for us to be at war. That has not happened since Dec. 7, 1941!

We don't lose our Constitution to tyrants (apparently), but to good people promoting vital causes. See yesterday's ramble on "wedge issues." Thus, for example, "the people" -- that is, via their legislators -- lost the right to determine whether or not abortion should be legal when the Supreme Court by-passed them and simply declared it unconstitutional, though nothing in the Constitution says so. The Court (in Roe v. Wade) invented a new right (one not mentioned in the Constitution) called "the right to privacy", arguing that the right to privacy is inherent in the other rights (and perhaps it is to some extent), then extended the definition of privacy to mean that any attempt to illegalize abortion violates the privacy of a woman's body.

They didn't say that illegalizing suicide is wrong. They didn't say that illegalizing a person's self-injecting heroin is wrong. (Aren't these private actions? They are illegal in most states. So is collecting child pornography.) They didn't look at how a government might have a legitimate interest in whether or not children get born. They didn't look at similar laws elsewhere (past and present) that consider it a father's right to kill his children, and any government intervention a violation of family privacy. And, of course, they didn't consider that abortion might violate some right that, as a human or almost-human, a fetus might have.

I'm not arguing that abortion should be illegal. Personally, while I don't think it's a good idea to abort babies, I also don't think it's a good idea to have the government telling a woman she can't get an abortion. That just tends in the direction of a police state, in the absence of a strong moral base in the population, the strong agreement you get where families, churches and schools raise a responsible populace. Attempting to enforce, legally, a morality not shared by most of the populace leads to tyranny.

But I'm arguing that the Supreme Court weakened the Constitution by using strained and inconsistent arguments to declare unconstitutional something whose legality should have been determined by legislators -- preferably state legislators in each state. And because many people wanted to see abortion legalized, for the sake of that legalization, they were willing to see the balance of powers between the Judiciary and Legislative branches of government overturned.

Part of the loss of state powers occurred for similar reasons of high morality: The federal government overturned states' rights in the effort to illegalize slavery -- and fought a probably unnecessary war in the process. (The Southern states had a growing contingent before the war that realized the South would have to do without slavery eventually; probably all that was needed to prevent a war was for the anti-slave Government to get off its high horse long enough to PAY the slave owners the money they'd spent buying slaves.)

You may say, well, if the Constitution defended states' rights (and it did), and if states' rights defended slavery, then we're well rid of powerful states. Perhaps -- or perhaps we needed to find a better solution than the most uncivil Civil War (or War between the States, as the Southerners termed it, stressing the sovereignty of the various parties to the war), a more patient solution that could have retained a model closer to the one envisioned in the Constitution. After all, those who pushed for an immediate solution left the ex-slaves mostly living in poverty as sub-citizens for about another century.

Why is this important: Because we are talking about INDIVIDUAL rights, and the individual is closer to his neighborhood than to his city, closer to city than to state, and closer to state than to the federal government. Therefore the individual has more control (more ability to go talk to someone, to be effective, to right wrongs, etc.) over local matters than over more remote state, federal and global matters. Therefore, any concern for human rights must include a concern for maintaining the integrity of the various echelons of society (families, neighborhoods, wards, cities and counties, states...), because when it's "The state vs. John Doe" or "The intergalactic federation vs. John Doe", John Doe doesn't have a chance.

For the Federal Government to notice lower-echelon corruption and act as ombudsman for individuals makes sense, but only if, having butted in, the Federal Government then butts out. But it doesn't work that way. Anything an upper echelon touches, it tries to hold onto, get that budget appropriation made permanent along with the increased staff allotment. That's how bureaucracy works. So in the absence of a firm commitment to the federal system (a federation of strong, self-governing states with strong, self-governing communities and families), we have lost the infrastructure necessary for human rights.

It's hard enough (in many cases) to talk to your Mom or Dad, tougher yet to reach the Mayor. Getting hold of the Governor or even your Congressman involves considerable red-tape and probably a form letter or e-mail from a very junior staff member. Now, try telling President Bush your concerns.

So the loss of states' rights is not a trivial matter if one is concerned with individual rights. It's not just the states that lost rights over the past two centuries, but also individuals, since all powers assumed by the Federal Government (and all tax money taken) are taken away, not just from states, but also from towns and churches and families and individuals. Each dollar of yours that goes to the federal government deprives you of the right to choose how to spend that dollar. Someone else decides.

The main point is that it doesn't matter much what it says in the Constitution if we, as citizens, do not understand that Constitution and support it, if we expect the lawyers to handle all that and the particular group of lawyers (all political appointees) called "The Supreme Court" to defend it for us.

Those rights we still have (for example, it's still a lot safer to speak or print our dissident views here than in many other nations or to belong to the church of our choice or even to exercise that somewhat unpopular right to bear arms), we have because this country was settled by citizens determined to throw off certain Old World chains, because we had a lot of space (makes it easier to get along and tolerate differences), because by the time our Founding Fathers wrote the Constitution an Bill of Rights, we already had a citizenry imbued with certain pioneer values, educated by Tom Paine and Jefferson, respectful of Franklin's ideal of the self-made, independent citizen, etc. No one was going to tell these guys what they should or shouldn't say! From time to time, we still act to forward these rights, but mostly we're riding along on 200-year-old momentum (riding our couches, steering with remote TV controls).

(And these days, if you are too incautious -- especially as a student -- no one tells you what not to say, but you might find yourself forced to take psychiatric drugs.)

3. Rights get vitiated when we confuse the freedom TO DO things, BE things, HAVE things, with the freedom FROM things (fear, hunger, etc.). Every right given individuals is a constraint on others. If I have the right to say what I want to say in a public forum, you do not have the right to forbid me from saying things that disturb you (in that public forum). If you have a right to live and pursue happiness, I don't have the right to murder you. If you are guaranteed "freedom from fear" by law, then by law I don't have the right to frighten you.

That's an interesting example: If we consider Roosevelt's famous "four freedoms" to be human rights, than you have the right to be free of fear, so can perhaps take me to court if I say something here that scares you. I suppose I could retort "Well, don't read it," and you could say, "yes, but how was I to know it would scare me? The law must require your title to include the words 'Beware: Scary Material'." Sounds silly, but we see this sort of discussion all the time -- in court decisions on pornograpy, for example.

If you have the right to be free from hunger, can this right be used to permit the government to take over businesses that aren't paying all workers enough to feed their large families? In other words, do business owners lose the right to run their own businesses?

So part of the loss of rights stems from a failure to define them in ways most likely to result in a sensible system. Generally, a "right" that rewards non-production results in less available for all and a failing system. (The USSR is a good example. No reward for individual initiative -- in fact, it was typically penalized, as when neighbors would destroy the equipment of a more productive neighbor.) Exactly how high we can place our social safety nets without overpenalizing the most productive citizens (and particularly those producing things that enhance survival) is the question here. Note that our Bill of Rights and most of the Rights ennumerated in the United Nations Universal Declaration of Human Rights do stress the rights to initiate action, to speak, choose, write, assemble, etc., though the UN list (a longer list) does look at some of the safety net issues. After all, a sane society should probably guarantee children some level of education, so that they can participate, and enough food to be able to grow and learn.

4. Some have tried to make human rights harder to violate by declaring that they are innately ours as ordained by God. I don't intend to argue about God's role in our having or not having rights, but it seems obvious that, whatever rights we innately have or are given by God, in fact, most people do NOT experience these rights. The point of insisting that these rights are God-given (like insisting that they are Constitutional) is to elicit agreement. We want to make these rights inviolable, and that means we need to get people to agree to them. (Don't you dare hit me! I'm wearing glasses. Don't you dare violate my rights. I got them from God!)

The trouble with doing eliciting agreement by harping on the Constitution is that the Constitution is barely breathing (can you feel a pulse), and belief in God isn't doing so well either. Also, if we attribute them to God, and then these rights start to interfere with each other, we get an impasse and endless hair-splitting or worse: "I have the RIGHT to own slaves." "But those slaves are people, and they have the RIGHT to be free."

(Digression: Did it ever occur to you that the Southern slave owners had PURCHASED those slaves with MONEY, and that the people who claimed the Southerners didn't own those slaves were actually devaluating money -- everyone's money? Similarly every time we pass a law saying that, for example, it's illegal to bribe a politician, we are lowering the value of our own money? Money, after all, is only as valuable as we all agree that we'll be able to use it to buy what we want to buy. So every law passed that limits what it is legal to buy devalues our money. Just an odd thought. Pardon the digression.)

Of course, what was basically wrong at that time WAS slavery. But still, both sides were defending "God-given rights", and so were both (or all) sides in the abortion issue, where those who defended the fetus were trying to say that fetuses are human individuals, just as the abolitionists tried to persuade Southerners that their slaves were human individuals. The slave trade had already been illegalized long before the Civil War. Why didn't the abolitionists just buy the slaves, then free them? Even the desire to have newly forming states be slave states was based on the desire of people from slave states to bring their investments (slaves -- rather expensive "possessions") with them to the new states. (Some abolitionists did a little of this -- purchasing and freeing slaves. The Government could have done it on a far larger scale -- and it would have cost a lot less than the war, which killed over 600,000, more than half from the Union side.)

Summary: We don't obtain human rights just by promoting democracy -- though it helps when the thirst for democracy forces out a tyrant. We don't secure our rights just by having them stated in a Constitution, nor will simply going to the wall for that Constitution do the job, though it will probably help. Just being a stickler for strict constitutionalism won't lead to rights unless it is accompanied by an attempt to rebuild an infrastructure for human rights comparable to that which existed earlier in this nation, an infrastructure that begins with family and school and community and our respecting one another as individuals and teaching children respect for each other. What we call human rights are extensions of self-respect to respect for others. They are, I think, a legal formulation that requires a government to behave toward each citizen the way individuals behave when they respect other people.

Good manners is a significant part of the basis for human rights. (Now there's a shocker!) (I started to write "Good manners are a not insignificant part...", then remembered I haven't been a professor for 38 years!)

When crime gets vicious we tolerate police who show little respect for individuals and suspect everyone and are particularly vicious to those who "look" like they might be criminals. And yet, it is that lack of respect for individuals that creates a criminal society; so we get a vicious circle. And once imprisoned, the criminals are deprived of most rights and treated as sub-humans, so mostly become career criminals. We need to reverse the vicious downward spiral. One of the "side effects" of a society that truly values human rights is that it has little crime.

We need to recognize that, however much our rights may be dear to God or Thomas Jefferson, they are secured by our understanding them, agreeing about them, wanting them and applying them in our own lives. And we need to insist on them for others -- world wide. Otherwise we get explosions of suppressed populations elsewhere that are "solved" by tyrannical governments using war as distraction, and we get mired in wars that are used as excuses for abridgement of rights -- that's just one of many ways the lack of rights elsewhere affects us.

I hope, by the way, that I've said a few things that have shocked you slightly. For example, I don't think I've ever heard from anyone else that when the abolitionists said "You don't own those people", the abolitionists were devaluating money as a medium of exchange. (Probably someone has said it, but I read a lot and have never seen it said, so I'll bet 99% of the two people reading this have never heard it before either.) And yet it's obvious. If you go to the store tomorrow to buy food and are told that you can no longer buy food, because it has been decided that all life, including cows, sheep, pigs, cucumbers, wheat and unfertilized chicken ovi, is sacred and can no longer be bought or owned or eaten -- at that point, your money would be severely devaluated. I don't think most people have noticed that freedom from fear or hunger or "from" anything can, if overdone, be used to abridge other vital freedoms.

I'm trying to get you to take a fresh look at the rights we take for granted, look at the anatomy of each, what it contributes (or not) to a better life for you and for all of us. Why should we have freedom of speech? What's REALLY wrong with slavery? (Isn't a good thing to have someone to do all the backbreaking labor for almost no pay? Why not?) What limits should be put on a democracy? That is, what things must be reserved to you as an individual for you to feel secure and able to be productive and live a good life in a democracy? What is the ideal scene here?

I think when you look at it this way for a while, you'll find that no political system alone can achieve that scene. It depends on the agreements of individuals as manifested in families, child-rearing, education and religion, as well as in our legal and political systems.