Rights Of Man

Back in the day when folks used the word “man” to denote all humans and before the rad-fems got their collective drawers in a bunch because they were convinced that the term was another sign of male dominance in their world, there was talk about the “Rights of Man.”  The doctrine was decidedly an Enlightenment concept and could be found in declarations from the French after their revolution in 1789 and was later to be found in the title of Thomas Paine’s famous book that attempted to encapsulate the rationale behind the American Revolution and the subsequent attempt to ratify a Constitution. It did not, of course, talk about the rights of the males of the human species. Rather, it spoke about the rights of all human beings — French or American, or anything else.

The recent movements the world over toward a new Nationalism is disturbing  on many levels, but most disturbing of all is its tendency to fly in the face of the notion that lies behind the declarations of the rights of all humans; namely, the notion that all humans regardless of race, color, creed, or sexual preference have the same rights. We see this in the recent decision of Great Britain to go it alone and separate itself from the rest of Europe and in the recent movement in this country to “Make America Great Again” by building a wall between the United States and Mexico and refusing sanctuary to those who have been displaced and are homeless. These attempts to isolate the countries reinforce the notion that England or the United States are somehow different from the rest of the world and, clearly, superior in that there is a thinly disguised jingoism hiding behind the movements. We don’t need you: stay away; we can go it alone.

This is absurd on its face, of course, because the economy of any single country these days is dependent on the rest of the world; but more important than that is the “hidden agenda” of jingoistic nonsense that denies the fundamental Enlightenment notion that all human beings have the same rights and while we are not the same in any other respect we are none the less the same in our right to be (as Kant would have it)  respected as “ends in ourselves.” Kant regarded this as the cornerstone of his ethical system: all persons are ends in themselves and ought never be treated merely as a means. That is, regardless of who we are we are not to be used or to use others “merely as a means” to our own ends. This undermines slavery, obviously, but it also undermines what has come to be called “discrimination” of any sort.

I have always thought Kant’s ethical system to be the strongest of any I have studied even though it places huge responsibilities on all of us to acknowledge the fact that other humans are basically the same as ourselves. It’s a truly Christian notion, of course, though Kant doesn’t couch his theory in the language of the New Testament. There is no talk about loving our neighbors. Still, he would insist that we must acknowledge our neighbor’s rights because they are the same as our own. The notion that we should build walls to keep them out, or that we should send people away because they practice another religion or seem to pose a distant threat because others who look like them pose a threat, is in direct contradiction to the fact that all humans have the same rights.  This is so despite the fact that we show ourselves ready at a moment’s notice to de-humanize other people by gearing up the propaganda machine and inventing pejorative names for the “enemy.”  After all, if they are the enemy then they are not really human and they are to be destroyed. War propaganda is a terrible thing, but in its way the movement toward Nationalism is a step in the same direction. It makes us out to be better than “them” no matter who “them” happens to be.

I am not naive and I do realize that others do not always recognize our rights and there are those in this world who would just as soon that we not exist and would love to make that happen. But we should never lose sight of the moral high ground and insist that any violence toward other people, in the form of walls or the nightmare of another war, should never be an option until all else has been shown to fail. There is no moral defense of war. When it happens it is always a matter of expedience and neither side is right if it is willing and able to kill those who wear a different uniform or have a darker skin, or practice a different religion. All humans have the same rights and we have a responsibility to recognize those rights until it has been demonstrated that they refuse to recognize ours. Even then, if he must, the soldier goes to battle with a heavy heart because he knows that what he does is wrong. And, in a small way, this is true of those who build walls.

It is one world and we are all in this together, like it or not. And we must always keep in mind that all humans have the same rights and no one has any sort of claim to be superior in any legitimate sense of that term to any one else.

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Rights and Responsibilities

One hears so much about “rights” these days it suggests that it might be a good idea to see if folks know what the hell they are talking about. When I hear the word it usually means something like “wants.” Thus, when Albert says he has a “right” to that parking space over there what he means is that he wants it. I heard a man from Charleston recently explain why he hadn’t voted in the last election because he “had a right not to vote.” This is absurd. What he meant to say, as so many like him mean to say, is that he didn’t want to vote.

The notion of rights comes from the Enlightenment tradition that informed our own Constitution and was firmly in the minds of the founders of this nation as they worried about separation from the most powerful country on earth at the time. They were concerned about their rights, their human rights. The word has strong moral overtones and suggests, when properly used, that one is morally permitted a certain course of action. Thus, when I say that I have a right to free speech the implication is that it is morally right that I be allowed to speak my mind and others are morally bound to allow me to do so — as long as I don’t shout “Fire!” in crowded theater, engage in hate speech, or promote civil insurrection (or tell lies with the intention to misinform the public).

In any event, rights imply a corresponding responsibility. Rights are one side of the coin, responsibilities, or duties, are the other. But we hear very little about the responsibilities that are intimately bound up with rights, because we have reduced the notion of rights to wants — and wants do not imply responsibilities. Again, the moral connotations are strong in the case of both rights and responsibilities. And in saying this I am speaking about what folks like John Locke and Thomas Jefferson regarded as human rights, the rights that every human being is entitled to simply because he or she is a human being. This contrasts with civil rights, which attach to membership in a specific polity and which can be taken away by those in power, if we abuse them by breaking the law. Our Bill of Rights are civil rights and are not absolute in any sense — even the Second Amendment that guarantees the militia (not every Tom, Dick, and Sally) the right to “bear arms.”

Human rights, as Jefferson says, are “inalienable,” that is, they cannot be taken away. They can be forfeited in that if I ignore the corresponding responsibilities I can be said to forfeit the rights that I might otherwise lay claim to. If I kill someone, according to Thomas Aquinas, I forfeit my right to life and am therefore subject to capital punishment. I myself think this is simplistic, as it is not always clear when a person has killed another and thus never clear when those rights can be said to have been forfeited, but the point is that no one else can take my rights from me. Or you. They are “inalienable.” The principle is quite clear.

What is important to keep in mind when speaking about human rights are two things: (1) they are moral in that those in power can take them but they should not do so. No one should do so. The “should” here suggests the moral nature of human rights. Clearly, those in power can take them from us, but they should not do so: they have no moral justification whatever for doing so. And this raises the second point: (2) Rights have reciprocal responsibilities in the sense that if I claim to have rights this implies that you have a (moral) responsibility to recognize those rights — and I to recognize yours, since we are both human beings. The only humans who can be said to have rights without responsibilities are the mentally infirm and children. In these cases alone those who are not capable of recognizing their responsibilities still have rights because they are human beings. But with these rare exceptions (and these are debatable) all who have rights also have responsibilities and if we ignore our responsibilities we can no longer lay claim to our rights. We might want to keep this in mind next time we hear Albert shouting about his “right” to the parking space. There is no such right.

Culpability

We don’t talk much about moral responsibility, or culpability, these days. We are big on “rights” but we fail to acknowledge that rights imply responsibilities. If I have a right to life, liberty and the pursuit of happiness that imposes a responsibility on my part to acknowledge your rights to the same. There’s no such thing as one-sided rights — except in the cases of  children or the mentality challenged who cannot possibly be expected to acknowledge their rights to those who are responsible for their welfare.

But in failing to acknowledge responsibilities, we have become experts at pointing fingers at others to avoid blame. “Mikey made me do it, Mom.” We expect that in children, but we have arrived at the point where everyone seems to be acting like a child, pointing fingers when blame is due. The N.R.A., and those gun manufacturers that support that group, are a case in point. They like to say that guns don’t kill people, people kill people. This is a half-truth. It’s not altogether false, but it is not altogether true, either. To see this we need to distinguish between necessary and sufficient conditions when assigning causes. For A to be the cause of B (and therefore responsible for B) A must be the necessary and sufficient condition for B. For instance, in order for me to have killed Sam who lies dead on the floor it is necessary that I have been there when it happened. If I was there holding a gun and there is sufficient DNA evidence that I shot Sam, then there would appear to be both necessary and sufficient conditions for me to have been the killer.

The N.R.A. is right in that if there were no people there would be no gun deaths. But, then, if there were no guns there would be no gun deaths, either. Guns are the necessary condition for the gun deaths to occur. There need only be a nutter or two, along with fear and rage, in order to realize the sufficient conditions for gun deaths to occur. And there are plenty of nutters, as we are finding out daily. Thus, those who provide the guns are at the very least partially responsible, culpable, for the gun deaths and cannot simply point the finger elsewhere. To be sure, many of those nutters would find another way to wreak havoc, but the consequences would not be nearly as catastrophic as they are when the nutter is armed with an automatic weapon supplied by the gun manufacturer who is at the very least partially responsible for those terrible deaths since he provides the shooter with a weapon.

The Republican Convention runs this week and we are told that, since Ohio is an “open carry” state, there is a number of New Black Panthers and White Supremacists on hand, fully armed and ready to fight if the occasion arises. It’s a volcano primed to erupt and we can only hope that the occasion does not arise. But if it does and if people are killed, as they most certainly would be, then those who provided those militant people with weapons are at least partially responsible for the results. They will have provided the necessary conditions for the event to happen, if not the sufficient condition. Those who promote this sort of behavior with inflamed rhetoric must also be regarded as partially responsible for the results.

When we are screaming about our “rights” we must remember that those rights imply responsibilities as well. And we might do well to recall that the so-called “right to bear arms” is a right, under the Constitution, that is guaranteed to militia — not White Supremacists or Black Panthers (New or Old).

Water Rights

An interesting Yahoo News article recounts the attempts by California to learn from Australia how to handle the drought that has brought that state to near crisis status. It is interesting in light of the fact that fracking is still legal in California despite the fact that it takes millions of gallons of the precious liquid from the earth and ruins it for human or animal use forever. In any event, the article focuses on one major difference between California and Australia which may make the lesson very hard to learn from California’s perspective: Californians, like most Americans; have no practice in sacrificing for the “common good. The Australians are quite good at it apparently. As the article points out, in part:

But Californians may find Australia’s medicine tough to swallow. Australians are accustomed to living in a dry land, expect government intervention in a crisis and largely support making sacrifices for the common good. For much of their history, many Californians have enjoyed abundant water, or were able to divert enough of it to turn deserts green, and highly paid lawyers ensure that property rights remain paramount.

The original Declaration of Independence, written by Thomas Jefferson, defended “life, liberty and property,” borrowing from the English tradition and, specifically, Locke’s Two Treatises of Civil Government. The term “property” was later replaced by “pursuit of happiness.” but the focus on property is apparent in so much of our common law. And as the article suggests, property rights are fiercely defended by highly paid lawyers who must be confronted by the state in the event of an emergency. The notion that folks should be willing to make sacrifices for “the common good” is alien to the American way of doing things — and has been so almost from the beginning. The trend has grown worse, as we can see if we stop to consider the sitting Congress that has no concern whatever with the common good and focuses its attention exclusively on the demands of their political party. But, truth be told, we all seem to be focused in our own “rights” and tend to ignore the rights of others.

This is sad and especially disturbing when we consider, for example, that a few small sacrifices might go a long way toward dealing with, if not solving, our huge waste of precious natural resources. If we were willing to ride bicycles or walk or take mass transit, or, perhaps, purchase economical cars, or if we  reached for a sweater during cold weather rather than turn up our heating systems, we might reduce the waste of gasoline, natural gas, electricity,  and heating oil. But the sweater is inconvenient and it is so much easier to nudge up the thermostat a bit, so that’s the path we tend to choose. And the car dealers have us convinced that power is what it’s all about. These are habits. And habits are what the article mentions when it refers to California’s enjoyment “of abundant water” for years. Habits are hard to break.

As it happens, however, these habits may be changed by cruel necessity as Californians may find out when they run out of water and are forced to do “the right thing” by conserving and reducing consumption “for the common good.” It will be a new experience and it will be one that will come only after considerable noise has been made and litigation has been undertaken in the name of “property rights.” Indeed, rights have always been our concern — even though they imply responsibilities which we tend to ignore altogether. To the extent that I can claim to have a right, say, to drinking water, I also have a responsibility to recognize another’s right to that same water. There’s the rub. Rights and responsibilities are reciprocal: if we demand one we must acknowledge the other. This will indeed be a hard lesson for the folks in California to learn — as it will soon be for the rest of us.

More From the N.R.A.

The NRA is at it again. They want the Supreme Court to read the Constitution the way they do, to agree that the Second Amendment permits minors to carry guns outside the home. The story reads, in part:

The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.”  There is a right to “keep” a gun, there is a right, to “bear” a gun.  There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.

The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home.   But it has refused repeatedly since then to take on the question of whether that right exists also outside the home.  If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.

The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question.  They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home.   The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them.   The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment’s scope.

In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’   The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”

Now there are two things about this that strike the attentive reader right away: the NRA wants kids of any age to be allowed to carry guns and they want them to be able to do it outside the house. Got it? In their argument they show a painfully careful reading of the Second Amendment that, they insist, allows not only the “keeping” but the “bearing” of arms. Thus, they say, the latter permits taking weapons anywhere and apparently at any age — though I honestly don’t see where the lack of age restriction comes in. Perhaps it’s somewhere in the small print.

However, in their close reading of that Amendment the NRA lawyers seem to have ignored altogether the antecedent of the hypothetical sentence. It says that “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” I have blogged about this before, but apparently the NRA lawyers don’t read my blogs. And that’s a pity, because the entire case for the so-called “right to bear arms” rests on the supposition that there will be no standing army and because of that we require a militia. But we do have a standing army (and then some). It follows that the right to bear arms is not protected by this Amendment, since there is no need for a militia. The two are conjoined in the Amendment which the NRA lawyers claim to have read so carefully.

Of course this is the group that stood by silently when the Congress was debating the possibility of outlawing certain types of weapons to keep them out of the hands of the militant blacks during the turbulent 1960s, and said nothing when Congress actually passed The National Firearms Act in 1934 prohibiting such things as sawed-off shotguns during the days of Al Capone, a law that was later upheld by the Supreme Court as Constitutional. If you read the decision of the Court in 1939 regarding the National Firearms Act, titled United States vs. Miller, it is clear that the Court regarded the necessity for a militia as the key ingredient in the Second Amendment. Their reasoning was as follows: “The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.” Not only can the NRA apparently engage in selective protest, but also selective reading. So much for matters of principle and a genuine concern for what the Founders actually said. And, seriously? Kids carrying guns?

Do Corporations Have Rights?

There is no mention of corporations in either the Declaration of Independence or the Constitution of the United States. But as early as 1819 in Dartmouth College vs. Woodward the Supreme Court suggested that corporations were entitled to make and enforce contracts, thus implying early on that they should be treated as persons with rights protected by the Constitution. By 1886 it was simply assumed “without argument” that corporations are persons. The absurdity of this interpretation became glaring clear not long ago when the Supreme Court decided in the “Citizen’s United” case that spending limits should not be placed on corporations under protection of the First Amendment. That is, corporations should be allowed to spend as much on political campaigns as they see fit on the grounds that, as persons, they had a right to freedom of speech. Yes, that’s right, corporations are not only persons, they are entitled to give politicians as much money as they want under the aegis of freedom of speech.

None of these court decisions considered the rather basic fact that if corporations have rights they must also have responsibilities. While fines are levied against corporations in some cases for the atrocities they commit they can be “held responsible” for those acts, but this can hardly be called “having responsibilities.” The only responsibilities corporations acknowledge are to their stockholders and these, too, can hardly be called “responsibilities,” since it is simply what corporations are supposed to do — namely, maximize profits. There is very little, if any, talk about responsibilities to “stakeholders” in corporate inner circles — or about moral or ethical responsibilities, either. Further, it’s never clear just who the corporations are. Are they the CEOs or the boards that govern them? Or are they the stockholders? Or are they the engineer who turns the handle that releases poisonous gas and kills 2500 people? The question threatens to become positively metaphysical. But assigning corporations rights without acknowledging their responsibilities makes no sense whatever. Rights without responsibilities can apply only to children and the mentally challenged, otherwise the notion is absurd on its face. (I hesitate to discuss the question whether corporations can be said to be mentally challenged.)

I have always thought that the concept of balance of powers under the Constitution is one of the most brilliant ideas ever conceived by the human mind. It arose, of course, in a French mind in the person of Montesquieu in the seventeenth century who saw this balance as necessary for the protection of individuals in a political group. Kings are not to be trusted. Presidents are not to be trusted. Those in power in general are not to be trusted. But if we balance the power among the executive, legislators and judges we can control the abuse that nearly always follows from too much power in the hands of one person. That’s the idea.

The United States Supreme Court was the result of this thinking, of course, as it worked its way down through John Locke, Thomas Jefferson,  and James Madison. And it is an inspired notion: a court that would be above political influence since members are not elected but appointed for life. And, indeed, some of the decisions of the court over the years have been brilliant. But the decision in January of 2010 to grant corporations the status of persons with rights under the First Amendment is simply stupid, if not absurd — as noted above. And it certainly does not appear to have been apolitical. Not only are corporations not persons, unlimited donations to a political election clearly do not constitute free speech.

In any event, the concept of “person” is a moral concept fully explored in the ethics of Immanuel Kant and previously used by the Founders to apply to citizens with both rights and responsibilities. As Kant examined the notion, it was held that persons were “ends in themselves,” and never a means to an end. In other words it is morally wrong to use others for one’s own purposes: Kant stressed responsibilities, or duties, over rights. It is precisely because we can recognize our duties to other persons (who are also ends in themselves) that we have rights. Responsibilities are primary; rights are derivative. But corporations are clearly not “ends in themselves”; they are simply a means to an end, namely, profit. Further, as mentioned, they have no responsibilities. The appropriation of a moral concept for legal purposes by the Court in 1819 and applied to an entity that was not even human was inappropriate; extending the notion further as the court did recently borders on the bizarre.

The absurdity of this decision can be seen by considering what other rights are guaranteed to persons under the First Amendment, namely, the right to practice religion as one sees fit, to assemble, and to petition the government for redress of grievances. The Constitution also guarantees every citizen the right to vote and to run for national office. Is the Court now saying that a corporation can run for President if it is thirty-five years old? Nonsense! But just as it would be absurd to think about corporations assembling, practicing religion, running for public office, or voting, it is also absurd to think that “they” have the right to free speech — assuming that this is what giving stacks of money to political candidates amounts to. This has to be one of the worst decisions ever to come from this Court and it deserves to be overthrown by a Constitutional amendment, and a movement to do so is afoot. That movement, however, seems sluggish at best — a reflection, perhaps, of the population’s general indifference to political issues and the unwillingness of those in power to bite the hand that feeds them.

Corporate Rights?

There is no mention of corporations in either the Declaration of Independence or the Constitution of the United States. But as early as 1819 in Dartmouth College vs. Woodward the Supreme Court suggested that corporations were entitled to make and enforce contracts, thus implying early on that they should be treated as persons with rights protected by the Constitution. By 1886 it was simply assumed “without argument” that corporations are persons. The absurdity of this interpretation became glaring clear recently when the Supreme Court decided in its wisdom that spending limits should not be placed on corporations under protection of the First Amendment. That is, corporations should be allowed to spend as much on political campaigns as they see fit on the grounds of freedom of speech. Yes, that’s right, corporations are not only persons, they are entitled to give politicians as much money as they want under the aegis of freedom of speech.

I have always thought that the balance of powers under the Constitution is one of the most brilliant ideas ever conceived by the human mind. It arose, of course, in a French mind in the person of Montesquieu in the seventeenth century who saw this balance as necessary for the protection of individuals in a political group. Kings are not to be trusted. Presidents are not to be trusted. But if we balance their power with that of legislators and judges we can control the abuse that nearly always follows from too much power in the hands of one person.

The Supreme Court was the result of this thinking, of course, as it trickled down through John Locke and Thomas Jefferson. And it is an inspired notion: a court that would be above political influence since members are not elected but appointed for life. And, indeed, some of the decisions of the court over the years have been brilliant. But the decision in January of 2010 to grant corporations rights under the First Amendment is simply stupid. Not only are corporations not persons, unlimited donations to a political election clearly do not constitute free speech.

The concept of “person” is a moral concept fully explored in the ethics of Immanuel Kant and used by the Founders to apply to citizens with rights and responsibilities. As Kant examined the notion, it was held that persons were “ends in themselves,” and never a means to an end. In other words it is morally wrong to use others for one’s own purposes. But corporations are clearly not “ends in themselves,” and are putatively a means to an end, namely, profit. The appropriation of a moral concept for legal purposes by the Court in 1819 and applied to an entity that was not even human was inappropriate, but its use in 2010 is nonsensical.

The absurdity of this decision can be seen by considering what other rights are guaranteed to persons under the First Amendment, namely, the right to practice religion as one sees fit, to assemble, and to petition the government for redress of grievances. The Constitution also guarantees every citizen the right to vote and to run for national office. Is the Court now saying that a corporation can run for President if it is thirty-five years old? Nonsense! But just as it would be absurd to think about corporations assembling, practicing religion, running for public office, or voting, it is also absurd to think that “they” have the right to free speech — assuming that this is what giving tons of money to political candidates amounts to. This has to be one of the worst decisions ever to come from this Court.