I’ve been thinking a lot about rights lately, about their nature and effect. Mostly, it’s been focused on the idea that talking about “rights” really boils down to practical concerns more than principled philosophical positions.
For example, in the wake the Supreme Court’s decision earlier this year that the First Amendment protected Fred Phelps and his gang from tort liability for their speech at the funeral of a fallen soldier, I really tried to find the principle that lay at the bottom of that ruling. A ruling I agree with, by the way. But at bottom, is the basis for my agreement the idea that free speech is a good in and of itself, even if it causes emotional distress to others and provides no real benefit to society? Or is it that I believe that no government anywhere in the world can be trusted to get the balance right, to suppress what is really worthless and allow what is worthwhile? In other words, am I really a free speech absolutist, as I always figured, or am I just a realist intent on keeping everybody free to speak so I won’t be silenced? I don’t know anymore.
That dichotomy was thrown into sharp relief by a couple of things on the Web last week. The first is a fairly good, if not too realistically tethered, summary on the current state of thought on “natural” rights. From one of the New York Times blogs, Michael Boylan asks “are there natural human rights?” and proceeds not to answer his own question. I don’t blame him – he’s a philosopher, it’s what they do – but I don’t find any of the potential bases for “natural” human rights compelling.
Mainly because, as some of the commenters point out, it’s all well and good to speculate about a font of universal rights, but if the power structure where you live doesn’t recognize them, fat lot of good it does you. The only real “natural” right I can think of is freedom of thought, if only because we lack the technology to get inside peoples’ heads and stop them from thinking what they want. A theocracy could sweep over the United States tomorrow and compel me, by force, to be outwardly religious, but it couldn’t get inside my head and stop me from being an atheist.
Speech, however, is only as free as the state allows it to be. They can’t stop me from thinking atheistic thoughts, but they can surely stop me from saying them out loud. In the United States, and in a thankfully large swath of the rest of the planet, I’m free to fly the red “A” there on the sidebar and proclaim my lack of belief free from state interference. I wouldn’t be so lucky if I lived in Saudi Arabia. So is free speech a “universal” right? How can it be if it varies from place to place? And if it’s universal but easily violated, then of what use is it?
Which brings me to the other thing that popped up last week. Neal Katyal, the current Acting Solicitor General, made a welcome, and sobering, admission about one of his predecessors and one of the Supreme Court’s greatest sins:
Katyal said Tuesday that Charles Fahy, an appointee of President Franklin D. Roosevelt, deliberately hid from the court a report from the Office of Naval Intelligence that concluded the Japanese Americans on the West Coast did not pose a military threat. The report indicated there was no evidence Japanese Americans were disloyal, were acting as spies or were signaling enemy submarines, as some at the time had suggested.
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He said that two of the government's civilian lawyers had told Fahy it would be 'suppression of evidence' to keep the naval intelligence report from the high court.
'What does Fahy do? Nothing,' Katyal said.
Instead, Fahy told the justices the government and the military agreed the roundup of Japanese Americans was required as a matter of 'military necessity.'
The result, of course, was the Supreme Court’s OK of the round up and detention of thousands of American citizens without cause. Although Katyal doesn’t really have any dog in that fight, I admire him for using his official position to point out the wrongdoing of a predecessor.
What Katyal’s admission does, of course, is reinforce what I said above – “natural” rights don’t mean much when the state has the power to take them away. A right to be free from detention without reason is meaningless if the state is bound to lock you up anyway.
Does that mean that “natural” or “universal” rights aren’t worth aspiring to or using as benchmarks? Of course not. But there’s a difference between encouraging the bloodied protester in the street that he should have the right to have a voice in how his country is run and a lot of professorial hand waving directed at proving that’s a right he already has, state crackdown on that right notwithstanding.
In the end, I’d really like to believe that there’s some font of universal rights out there, to which all human beings have access. But history, not to mention current events, pretty much blow that idea out of the water. It may be nice to ponder philosophically over a beer, but it doesn’t have much impact on the real world. Unfortunately, that’s precisely where such a thing would do the most good.
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