Our gassing about our rights is almost equal to our gassing about our freedoms when we’re bent over and puffed full of air concerning our form of government. We’re inordinately proud of the Bill of Rights. But it’s an odd document.
The First and Sixth Amendments are straightforward enough, reassuring us that we may pray (OMG!), Twitter, kvetch, and be tried in the same court as O. J. Simpson. And the Fifth Amendment says that when we screw up big time we don’t have to give our version—like anybody’s going to believe us. But the Second Amendment is woefully confusing. (Not that it confuses me about gun ownership, in case you were considering a mugging to get my Jitterbug mobile phone.) The principal right that the Second Amendment seems to guarantee is the right to be a soldier. To judge by our various episodes of national conscription—Civil War, World War I, World War II, Korea, Vietnam—this is a right we sometimes have to force people to enjoy.
According to the Third Amendment the Pentagon can’t just randomly send the U.S. Marines to sleep on our fold-out couch. This is something that, as a home owner, you’d think would be obvious. Although, in fairness, there are people elsewhere who wish they had an amendment keeping the Marines out of their house.
The Third Amendment and the Seventh Amendment (concerning jury appeals), are undercut by weasel words: “but in a manner to be prescribed by law” and “otherwise... than according to the rules of the common law.” The Fourth Amendment (mandating warrants) and the Eighth Amendment (limiting punishments) include strange pairs of modifiers—”unreasonable” and “probable,” “cruel” and “unusual”—better suited to a drunken description of my first marriage than to a sober writ of law.
And the message of the Ninth and Tenth Amendments is: You have other rights but you have to guess what they are.
There was opposition to the Bill of Rights. The modern mind expects it to have come from slave owners. But this is too modern. Support for the first ten amendments had little to do with dictionary definitions of freedom and liberty and a great deal to do with qualms that old-line Revolutionary patriots—including Sam Adams—had about the new federal government. Alexander Hamilton, who had other qualms, made a case against the Bill of Rights in that supposed ur-text of American freedoms The Federalist Papers, in number 84.
Hamilton put forth various arguments opposing the addition of any bill of rights to the U.S. Constitution. Some of the arguments were weak. Hamilton claimed that the Constitution, as it was, affirmed and maintained the ancient protections of individual liberty embodied in British common law. Maybe. But a less dangerous and expensive way to retain British common law had been available in 1776. Hamilton claimed that previous, precedent-setting bills of rights, starting with the Magna Carta, were merely bargains between a sovereign and his subjects about a ruler’s prerogatives. Hamilton felt that no such sharp dealing and unseemly horse trading was necessary in a social contract freely made among equals. But if Nietzsche was right about what liberal institutions do once they’re institutionalized—and there’s no evidence he wasn’t—then Hamilton was wrong. And Hamilton believed the Constitution already included the most important safeguards of freedom: establishment of habeas corpus, prohibition of ex post facto laws, and a ban on titles of nobility. Hamilton was listing the principal instruments in the tyranny tool chest of his era. He didn’t foresee the future inventions of oppression such as ethnic cleansing, even though ethnic cleansing of North America was well under way at the time the Federalist essays were written.
But Hamilton’s other objections to the Bill of Rights were prescient. Don’t give the government ideas, he warned.
Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge... the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.
And now we have not only the FCC’s naughty involvement in Janet Jackson’s wardrobe malfunction but also the gross obscenities of binding and gagging displayed in America’s campaign finance legislation.2
Hamilton said that, in the matter of defining a right, “Who can give it any definition which would not leave the utmost latitude for evasion?” Not even God, if you note the various evasions practiced by believers since Genesis. Hamilton said the true security of our freedom “must altogether depend on public opinion, and on the general spirit of the people and of the government.” Each of these can be rotten, and occasionally all of them are. Such an occasion arose just seven years after the Bill of Rights was ratified. The Sedition Act made it a federal crime to publish anything about Congress or the president that would bring them into “contempt or disrepute.” In other words, the Sedition Act made it a federal crime to publish anything about Congress or the president.
Fortunately the Bill of Rights is flawed in its treatment of only one type of rights—opportunities. It doesn’t meddle with the other type—privileges. Perhaps these two categories of rights should be known as “get-outa-here” rights and “gimme” rights or, as they’re more usually called in political theory, negative rights and positive rights. The Bill of Rights (and “the idea of Freedom”) is concerned mostly with our liberty to say, “I’ve got God, guns, and a big damn mouth, and if the jury finds me guilty, the judge will pay my bail!” This is a negative right—our right to be left alone, our freedom from interference, usually from government, but also from our fellow citizens when they want us to sober up, quit yelling, put the shotgun down, and go back into the house.
Politicians, in their hearts, are always tepid supporters of get-outa-here rights. For one thing, any and all legislators are being invited to leave. For another thing, strict adherence to negative rights would leave little scope for legislating, something legislators dearly love to do. Gimme rights are more politically alluring. This is how we find ourselves tempted with positive rights to education, housing, health care, a living wage, flood relief, high-speed Internet access, and all the kingdoms of the world, and all the glory of them.
Politicians show no signs of even knowing the difference between negative and positive rights. Blinded by the dazzle of anything that makes them popular, they honestly may not be able to tell. But there’s evidence that a confusion of negative and positive rights originally was presented to the public with malice aforethought. President Franklin Roosevelt’s “Four Freedoms” appear to be, at first glance, as natural, well matched, and tidy of composition as the Norman Rockwell illustrations for them.
1. Freedom of speech and expression
2. Freedom of religion
3. Freedom from want
4. Freedom from fear
But notice how the beggar, number 3, has been slipped in among the more respectable members of the Freedom family. “Want what?” we ask ourselves.
Saying, as Roosevelt did in his January 6, 1941, State of the Union address, that “We look forward to a world founded upon four essential human freedoms” and that one of these freedoms is “freedom from want” was not an expression of generosity. Declarations of positive rights never are. There were six million Jews in Europe who wanted nothing but a safe place to go.
Politicians are careless about promising positive rights and cynical about delivering them. Positive rights themselves, in turn, are absurdly expandable. The government gives me a right to get married. This shows I have a right to a good marriage, otherwise why bother giving it to me? My marriage is made a lot better by my children’s right to day care, so the brats aren’t in my face all day being deprived of their right to a nurturing developmental environment. Every child has the right to a happy childhood, so I have the right to happy children. Richer children are happier. Give me some of Angelina Jolie’s.
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sp; The expense of all this makes politicians glad. They get to do the spending. Even negative rights aren’t free. They entail a military, a constabulary, a judiciary, and a considerable expenditure of patience by our neighbors. But positive rights require no end of money, and money is the least of their cost. Every positive right means the transfer of goods and services from one group of citizens to another. The first group of citizens loses those goods and services, but all citizens lose the power that must be given to a political authority to enforce the transfer. Perhaps such transfers could be made voluntary. U.S. federal personal income tax receipts in 2008: $1,426,000,000,000. U.S. charitable contributions in 2008: $307,700,000. Perhaps not.
When rights consist of special privileges and material benefits, rights kill freedom. Wrong rights are the source of political power. It’s not freedom but power that is the central issue in politics. Only an idiot wouldn’t have seen that. And I was one.
At least I wasn’t alone. In the latter two-thirds of the twentieth century, most of us who involved ourselves in democratic politics claimed that freedom was what we were up to. We claimed it for more than fifty years, from the time of our defeat in the Spanish civil war until the embarrassing moment when those authoritarians Ronald Reagan and Margaret Thatcher led us to victory in the cold war. Liberals, moderates, and even some conservatives considered the sweeping positive rights created by a half century of social welfare programs to be extensions of freedom, in the opportunity sense. People were being given the opportunity to, you know, not starve to death and stuff.
This wasn’t an evil way of looking at things. And not all the programs were bad. But the electorate, the candidates, and we busybody pundits failed to properly scrutinize social welfare programs. It’s not that we failed to examine whether the programs were needed or superfluous or well or poorly run. What we failed to look at was the enormous power being taken from persons and given to politics. We insisted on seeing politics through the lens of freedom, as if social legislation were a Polaroid print of quickly developing liberties. We listened only to the freedom track on the electoral stereo. We predicted the future of politics with a horoscope containing just the astrological sign Libra.
We weren’t exactly wrong. Living in the midst of the civil rights struggle, during a cold war with one totalitarian ideology after a real war with another, we understood the value of freedom and the ugly alternative to democracy. But we didn’t—or didn’t want to—understand power. This was particularly true of my age cohort, the baby boom, and particularly evident in the way we reacted when politicians attempted to use their power to limit our freedom by conscripting us into a war in Vietnam. We challenged the establishment by growing our hair long and dressing like Bozo.
We’re a pathetic bunch. And it didn’t start with the Beatles, marijuana, and the pill. Recall the coonskin cap. I wore mine to school. Children of previous eras may have worn coonskin caps but they had to eat the raccoons first.
The baby boom’s reluctance to attend to the issues of power resulted from the fact that we had some. Freedom is power, after all. And, as for freedom, we were full of it. We were the first middle-class-majority generation in history. We had the varieties of freedom that affluence provides, plus we had the other varieties of freedom provided by relaxation of religious convictions, sexual morality, etiquette, and good taste. The social institutions that enforce prudence and restraint had been through a world war, prohibition, depression, a world war part II, and Elvis. They were tired. We were allowed to fall under the power of our own freedoms. And we powered through them. Sixty years on we’re still at it, letting not age, satiety, tedium, or erectile dysfunction stand in our way. Yet always at our back we hear the nagging thought that power comes with responsibility.
We don’t want that. Has there ever been a generation—a nation, a civilization—more determined to evade responsibility? Probably. The ancient Romans sliced open animals and rummaged in their kidneys and livers in an attempt to avoid owning up to the consequences of empire and toga parties. The Greeks were forever running off to hear the irresponsible babble of the oracle at Delphi, the Larry King of her age. Maybe the Egyptians had an Oprah barge on the Nile where deceased pharaohs could fall to pieces and promise to become better mummies.
Nonetheless we and our contemporaries in the developed countries of the Western world have an impressive record of blame shifting, duty shirking, unaccountability, and refusal to admit guilt or, better, to readily confess to every kind of guilt then announce we’ve “moved on.”
A gigantic global “Not My Fault” project has been undertaken with heroic amounts of time, effort, and money devoted to psychology, psychotherapy, sociology, sociopaths, social work, social sciences, Scientology, science, chemistry, the brain, brain chemistry, serotonin reuptake inhibitors, inhibitions, sex, sex therapy, talk therapy, talk radio, talk radio personalities, personality disorders, drugs, drug-free school zones, Internet addiction, economics, the Fed, PMS, SATs, IQ, DNA, evolution, abortion, divorce, no-fault car insurance, the Democratic Party, diagnosis of attention deficit disorder in small boys... The list goes on.
Neither freedom nor power is what I should have been obsessed with for all these years. But it’s too late now. I’m a child of my era. And speaking of that era, here are three slogans from 1960s posters that never existed:
BLACK RESPONSIBILITY
SISTERHOOD IS RESPONSIBLE
RESPONSIBILITY TO THE PEOPLE
3
A Digression on Happiness
American exceptionalism annoys the world. Happiness is the source of the annoyance. Other countries are built upon battle, blood, nationality, culture, language, and territory. America is the exception. Our foundation is pursuit of happiness. It appears in the first sentence of the main body of America’s IPO, the Declaration of Independence. Happiness is the one novel feature of the document. And this imaginative mission statement, that we’re determined to pursue happiness, comes as something of a surprise after the noble boilerplate of our calls for life and liberty.
We can explore mankind’s other covenants, treaties, conventions, protocols, compacts, and concordants, plus all the corpus juris of the world, written and unwritten, ancient and modern, and not find happiness.
No talk of happiness appears in England’s Magna Carta. The French revolution’s Declaration of the Rights of Man fails to address the subject. The European Union’s proposed constitution never mentions happiness, although, at 485 pages, it mentions practically everything else including regulatory specifications concerning “edible meat offal” and “lard and other rendered pig fat.” The Lisbon treaty that took the place of the rejected EU constitution doesn’t supply this want of happiness. The UN’s Universal Declaration of Human Rights does state, in Article 24, that “Everyone has the right to rest and leisure, including... periodic holidays with pay.” Leave it to UN delegates to expect to be paid for their freedom. Anyway, a holiday is not the same as the pursuit of happiness, as anyone knows who’s spent a holiday dragging whiney children on a tour of UN headquarters.
The New Testament, arguably the founding text of Western civilization, mentions happiness just seven times and never in a happy context. Peter’s First Epistle, to persecuted Christians in Asia Minor, says, “if ye suffer for righteousness’ sake, happy are ye.” Jesus is quoted as using the word “happy” only once, on the occasion of washing his disciples’ feet. We admire the Son of Man but we sons of a gun who populate America do not pursue our happiness in this manner.
The United States is the first—and so far only—among happy nations. “Happy the people whose annals are blank in history books,” wrote Thomas Carlyle. Just ask Americans a question about American history, watch them draw a blank, and you’ll see that we are the happy people indeed.
Not that Americans seem very happy at the moment. And maybe Americans never have seemed happy. In his 1741 sermon “Sinners in the Hands of an Angry God,” Jonathan Edwards doesn’t sound as if he’s talking to
a cheery crowd.
The God that holds you over the pit of Hell, much as one holds a spider, or some loathsome insect, over the fire, abhors you... he looks upon you as worthy of nothing else, but to be cast into the fire.
And now, due to the financial crisis, the mortgage foreclosure crisis, and health care reform, we’re not only going to hell, we’re broke, homeless, and sick while we’re waiting to get in.
Happiness, like the freedom we’re so happy to have, is elusive—slippery in physical and conceptual grasp. “I’m happy” doesn’t mean “I’m having fun.” Remember all the fun you’ve had. When it was really fun it didn’t end up making anybody very happy. “I’m happy” is distinct from those spasms of ecstasy that do not elicit any coherent phrases. “I’m happy” is more or less equivalent to “I’m content,” which means “I won’t complain because nobody listens to me.”
“Happy” is often used as a none too complimentary modifier: “happy-go-lucky,” “slaphappy,” “happy horseshit,” “happy as a pig in same.” The catchphrases “one big happy family,” “Is everybody happy?,” and “I hope you’re happy now” are never spoken without a happy smirk of irony. Then there’s whatever John Lennon was getting at with “Happiness Is a Warm Gun.” Although it’s true under certain circumstances. Try defending the perimeter of your outpost in Kandahar by squeezing a puppy.
However, it should be noted that the Declaration of Independence reads, “Life, Liberty, and the Pursuit of Happiness,” not, “Life, Liberty, and Whoopee.” Jefferson’s choosing “the pursuit of” rather than plain “happiness” is a reminder of what happens to the poor suckers who, in their pursuit of happiness, catch the thing. America’s legions of minor, temporary tabloid stars can tell the rest of the story, if they survive their stardom.