The Problem with Rights (Part 2)
Last week, in order to approach the question of the role of government in relation to social justice, the right ordering of human society, I began examining a fundamental problem with ‘rights’.
The problem is that the good of peaceful human society requires that rights be limited in some way. Freedom of religion should not allow the practice of Satanism. Freedom of speech should not allow pornography. Freedom of assembly should not allow riots.
The US Constitution does not provide any principle by which rights are to be limited. The limitation has come from cultural assumptions outside the Constitution that shape the jurisprudence of the Supreme Court. Those cultural assumptions have passed from a sort of generic Protestantism to a supposedly neutral secularism.
Last week, I traced this development in respect to the freedom of religion. The history of Supreme Court jurisprudence shows how this has led to the present radical religious pluralism that excludes the public influence of traditional forms of Christianity. The freedom of other religions has been used to dethrone the public influence of Christianity.
Another line of secular development has dealt with the realm of sexuality. There has been a stream of landmark decisions beginning with Griswold v. Connecticut. Based on a newly discovered ‘right to privacy’ hidden in the 14th amendment, this 1965 decision protected the ‘right’ of married couples to use contraception. This laid the groundwork for the much more famous Roe v. Wade decision of 1973 that recognized a right to abortion. The right to privacy was developed in Planned Parenthood v. Casey in 1992, which upheld Roe v. Wade. More significant was Justice Kennedy’s enunciation of a principle of radical relativism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
This laid the groundwork for Lawrence v. Texas (2003) which struck down an anti-sodomy law in the state of Texas. This effectively overturned the 1986 decision of Bower v. Hardwick in which Chief Justice Warren Burger had written, “The proscriptions against sodomy have very ‘ancient roots.’ Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.” In other words, in 1986 it was still possible to invoke ‘Judeo-Christian’ moral tradition as a basis for a limitation on liberty, but in 2003 the Judeo-Christian standard was flat out rejected and replaced by Kennedy’s principle of relativism. Finally, Obergefell v. Hodges (2015) recognized the ‘right’ to same-sex marriage.
All this has left us with a radical pluralism in American life. Still, there has to be some sort of principle by which liberty can be limited. The basic principle that is used for the limitation of liberty is the ‘harm principle’: In other words, people should be free to do as they please, so long as they don’t hurt anyone else.
The most basic problem with the ‘harm principle’ is that ‘harm’ itself needs to be defined. There is physical harm, but then there is also emotional and psychological harm. Why not then moral and spiritual harm? Finally, any definition of ‘harm’ implies an understanding of the good, which is beyond the scope of science, but is very much within the scope of religion and philosophy. Nevertheless, the relativist principle of Planned Parenthood v. Casey effectively excludes any common understanding of the good. So finally, the judgment of ‘harm’ comes from the subjective view of the majority of the Supreme Court justices.
In the end we have a huge mess in which competing power interests compete first to control appointments to the Supreme Court, then to win over the Supreme Court in particular cases. Even if the Supreme Court ‘punts’ (e.g. overturning Roe v. Wade) that would effectively only throw the ball back into the court of the legislatures.
Here we meet with a fundamental limitation of democracy. Presupposing a general consensus about good and evil, democratic processes can serve well to address practical matters in light of that consensus. Nevertheless, democracy has never been a good way to resolve fundamental life questions; too much is at stake for a minority to accept the rule of the majority in these sorts of matters.
Today, the United States is radically divided precisely when it comes to fundamental life questions, but there is no way of publicly speaking about or addressing these sorts of questions. We only know how to talk about ‘practical matters’ so these sorts of ‘issues’ become focal point for the democratic process, which itself becomes a vicious battleground for warring world views.
Where am I going with all of this? Basically, the point is that while some measure of private liberty is necessary for the good of public life, it cannot serve as the foundation for public life.
So, before we address the role of government in relation to social justice, we need to consider the nature and purpose of government more generally.
April 16, 2021
April 02, 2021