Rites About Rights
Sure, voting is a right. But it’s not the source of our rights.
Dear Reader (unless you’re waiting for a subpoena, like Kevin McCarthy),
So I had a long rant in the Wednesday G-File about Biden’s voting right’s speech (actually, in fairness to me, only the end of it was ranty). While I could go on for another couple thousand words, the thing is already a dead letter. Kyrsten Sinema announced she won’t nuke the filibuster to pass the Democrats’ election “reforms,” and Joe Manchin backed her up, so the whole speech was a pointless exercise.
Some think the idea was to pressure Sinema and Manchin into caving on a filibuster “carve out.” If so, that sounds great as a plot device for The West Wing.
I was going to make the—now clichéd—point that the Biden White House lives in the Veep timeline. But then I stopped myself because the truth is that it actually exists in the real world, the meatspace where things don’t unfold according to preconceived storylines.
Remember that old joke about the academic who says, “Sure it works in practice, but does it work in theory?” The problem for the Biden administration is that they come up with theories about what to do that don’t actually work unless you’re drunk on the Kool-Aid and they work even less in reality. From Afghanistan to Build Back Better to COVID to inflation to this voting rights debacle, it’s like the White House just says “Let’s just do it and be legends.”
There’s a lot of talk in Washington about how Biden isn’t really running the show. That may be true on one issue or another, but on the broad direction of his presidency, I think this is wrong. Biden has a very long history of being unjustifiably confident about how the world works and being proven wrong. If that’s the theme of his life in politics—and I think it is—it would be kind of weird to exonerate him from the charge when he’s actually the president of the United States and his presidency has displayed exactly that: invincible confidence in the rightness of what he’s doing even as he walks from one smack in the face to another like Sideshow Bob stepping on rakes.
Don’t worry, I’m not going to run through all of that here because, frankly, I’m exhausted with punditry right now. Instead, I’d like to focus on something he was wrong about in his speech that an enormous number of other people are also wrong about.
Democracy versus liberty.
Biden said that “the fundamental right to vote is the right from which all other rights flow.” This is a common view, and one that Biden has subscribed to for a while. As vice president in 2015, he issued a statement on the 50th anniversary of the Voting Rights Act: “Voting is the engine that drives all civil rights, all human rights, and all economic rights in this country. It’s the right from which all other rights flow.” Robert Kennedy said the same thing a half-century ago.
Now, I think voting is very, very important. What has two thumbs and likes democracy? This guy.
But neither the right to vote, nor democracy itself, are the source of all of our other rights.
This isn’t a pedantic point.
Let’s start with the subject of Jim Crow. Extending voting rights to blacks in the South was important, morally necessary, and just. But Jim Crow didn’t end in the South because blacks got the vote. A full 10 years before the Voting Rights Act 1964 was passed, the Supreme Court—not exactly a very democratic institution—ruled that racial segregation in schools was unconstitutional in Brown v. Board of Education. More to the point, in at least some Southern states, if segregation had been put up for a vote it would have been sustained by a majority of the voters—even if blacks could vote. The process of desegregation began at gunpoint by federal troops enforcing the Supreme Court’s rulings.
There is nothing inherent to democratic theory that says the people can be counted upon to vote in favor of sustaining their rights, never mind the rights of other people. That’s why the Constitution protects our rights from democracy. The Bill of Rights explicitly makes it hard for government to infringe on our rights because our rights are considered prior to or above the whims of the voters. In a pure democracy, 50.1 percent of the people can pee in the cornflakes of 49.9 percent of the people.
If voting always breaks in favor of protecting our rights, why are Democrats so upset that elected officials in various states are restricting the right to vote? That should be impossible. Voting is a fundamental right, the fundamental right, they insist. Well, people voted for Republican-controlled legislatures and those legislatures are, Democrats tell us, restricting a fundamental right. Paradoxical! By the way, the fact that this is being done on a party line basis shouldn’t be an issue either, given that Democrats at the national level think they should do everything and anything they want on a party line basis. If voting in partisan lockstep to tighten voting procedures is illegitimate, voting for expanding or federalizing them should be too. Ditto Build Back Better and the rest.
One of the central insights of both liberalism and conservatism, rightly understood, is that sometimes the people can be wrong. That’s why the Founders made it hard to change the Constitution. That’s why they envisioned the Senate as a “cooling saucer” that tempers the passions of the House. And that’s why this country has elections all the time. Because the Founders understood that sometimes the people can get riled up, angry, confused, misinformed, petulant, or vengeful. Having lots of elections allows the voters to recognize that maybe they went too far in the previous election. It’s part of the process of democratic self-correction and renewal. There have been plenty of times in American history when the people were in a bad enough mood to vote away various rights if they had the power to do it. Making it hard for those temper tantrums to do lasting damage is one of the great things about our system. (I suspect that if you put free speech rights up for a vote today, we would have fewer free speech rights tomorrow.)
Where do our rights come from?
What is the singular right that makes all other rights possible? I think this is a problematic question, but let’s take a stab at it. There are a lot of answers to this question. They largely fall into two broad categories I’ll call philosophical and anthropological, though there’s a lot of overlap between the two.
I’ll start with the anthropological. There’s a strong case that security—basic personal safety—is the fons et origo of all other rights. Thomas Hobbes and John Locke would agree (I told you there was overlap!). In a state of nature, force settles all disputes. Talk all you like about your property rights, but if I hit you over the head with a rock, I can take your stuff. Cry about how your rights were violated, it will do you no good unless you—and maybe some friends—get some rocks and take your stuff back. My apologies to all of the anarchists out there, but Hobbes, Locke, Weber, et al., were right that without the state and its monopoly on violence, no other rights are secure. This is why some argue that the right to life is the source of all other rights.
The reason I call this the anthropological argument is that this is almost surely where government comes from. As I discuss at length in Suicide of the West, the first states emerged from what Mancur Olsen called the “stationary bandit.” In a state of nature, roving bandits—think Viking pillagers—come riding into town a whoopin’ and a stompin’ and take whatever they can carry. At some point, one of these wandering warlords realizes that if he stays put and agrees to protect the villagers from other roving bandits he can extract more wealth or “rents” from the villagers. Importantly, over time he realizes that it’s in his interest to invest in this community so his slice of the pie can grow. Protecting their property rights from all theft—save taxation—yields greater prosperity. Eventually, the stationary bandit becomes a chieftain or king and a whole political theology becomes invested into perpetuating his rule and the rule of his progeny. This is where the anarchists have a point about how the state was created as a glorified criminal enterprise.
Then there’s the philosophical argument. This is a bit of a misnomer because it can rightly be called a theological argument as well. It’s pretty straightforward. We are created by God. Our rights derive from this fact, and it is the job of the state to protect those rights. I can spend the next 10,000 words expanding and elucidating this idea, but I don’t see the point.
Some atheists and humanists don’t like this formulation for some obvious reasons (and some exhaustingly obscure ones). But the simple fact is that without the essentially Judeo-Christian view of humans as being equal in the eyes of God, we wouldn’t have the idea of inalienable rights today. This isn’t to say you can’t make an atheistic case for human rights—people do it all the frick’n time. It’s simply to note that the atheists are standing on the shoulders of the people who made the case for rights as God-given. And if you think I’m being too much of a Western chauvinist, that’s fine. All I ask is that you point out to me where in the history of the non-Western world the idea of universal human rights not only emerged (it must have somewhere) but actually took hold.
While you get that blistering email together for me, let’s talk about the overlap. Most of the rights we think of as our rights—including the right to vote—took hold during the Enlightenment. Of course, as a matter of intellectual history, most of them are conceptually much older. Democracy, free speech, property rights, etc. have antecedents in the ancient world, and not just in the West. And some started as pre-Enlightenment cultural norms in England or elsewhere (the Fourth Amendment starts with the quirky custom of a man’s home being his castle). Freedom of conscience begins not as some grand theological or philosophical principle, but as a kind of Westphalian truce in the wake of the wars of religion. As Herbert Butterfield put it, religious tolerance was “the last policy that remained when it had proved impossible to go on fighting any longer.”
But it was the rise of the middle class in England and France that forced recognition of rights as indispensable to political legitimacy. “No taxation without representation” is where democracy in the modern world begins. From it flows the idea that we are citizens, not subjects: We don’t work for the government, the government works for us.
And that brings me back to where I began. The government works for us, but part of its job is to protect our rights for posterity, even when a temporary majority wants to abandon them. This is where the anthropological and the philosophical visions merge into a cultural synthesis. Contrary to a lot of prattle from “post-liberals,” progressive technocrats, and populist grifters of the right and left, we live in a liberal culture. That’s why I think the question of “What right makes other rights possible?” is so problematic. It works on the assumption that Americans love and enjoy their rights based on some commitment to abstract liberal theory alone. Liberal theory is important. But far more important is liberal culture. Americans like our freedoms because we’re Americans, damn it. So sure, sometimes voting is the great protector of our rights, and sometimes it’s not. In other words, it’s complicated because culture is complicated.
I am open to the idea that our rights don’t come from God, but I thank God every day I live in a culture that operationally believes they do. Because that is the best bulwark against the machinations of populists and politicians who set out to inflame passions for short-term gain at the long-term expense of our rights.
And such leaders are all around us. For example, Joe Biden said this week that all of our rights come from voting and that people who disagree are on the side of racists and segregationists. He did this, I believe, solely so he could push through a political agenda and placate the passions of his partisan base. If you think that’s not the case, fine. But maybe you can explain how, just eight months ago, Biden had a completely different philosophical explanation for where our rights come from?
On May 28, he told American service members: “None of you get your rights from your government; you get your rights merely because you’re a child of God. The government is there to protect those God-given rights. No other government has been based on that notion. No one can defeat us except us.”
He was right then. And his abandonment of that view for political expediency this week was worse than a defeat, it was a surrender to the sorts of petty political corruptions our system was created to protect us against.
Various & Sundry
Canine update: This always happens when the Fair Jessica leaves town: The girls are getting super needy. They lie to me every day about how starving they are and how I forgot to feed them. They pretend that I never took them for a walk and they follow me around the house like I’m planning some escape. In the morning Zoë aroos at me if I take too long getting dressed for the morning walk and she aroos at me at the end of the day when I come back from “abandoning them for several lifetimes” (Zoë’s words). Pippa especially has become obsessed with jumping up next to me and throwing her head back onto my lap to say, “Love me.” If my lap is unavailable, she’ll use Zoë.
And now, the weird stuff