Daily Archives: May 17, 2022

Rights expansion plays a big role in left-wing policymaking. President Franklin Roosevelt called for a Second Bill of Rights in 1944. He hoped to include rights to employment, adequate income, decent housing, adequate medical care, social security, and education. But Roosevelt died the following year, and the Democratic Party abandoned the proposal. Now, Bernie Sanders calls for a 21st Century Economic Bill of Rights that closely mirrors Roosevelts proposal. It includes the right to a job that pays a living wage, the right to quality healthcare, the right to a complete education, the right to affordable housing, the right to a clean environment, and the right to a secure retirement. Sanderss proposed policieslike Medicare-For-All, tuition-free college, and the jobs guaranteehave been designed to help secure these rights.

Conservatives often oppose rights expansion by appealing to natural rights theory. Corporations and the richwho possess concentrated political power and access to a media that serves themwill also wage a campaign to discredit the idea of these rights. Obtaining them will not be easy. To make a start, we need to anticipate the rhetorical strategies of our opponents. In what follows, Ill lay out how natural rights theories work, identify some of their weaknesses, and consider alternative frameworks.

For conservatives, rights are not something we can expand or contract, because they are natural or God-given. Natural rights have their roots in natural law theory. Natural law theoristslike Thomas Aquinasargue that human beings exist for a specific purpose. Drawing on Aristotle, Aquinas argued that it is our purpose to develop our reason, and to use our reason to develop our character, to acquire moral virtues. These virtuesincluding, most famously, prudence, justice, fortitude, temperance, charity, faith, hope, and loveare meant to enable us to live a good life, in service of traditional institutions, like the family, the state, and the church. They are also meant to help us develop ourselves intellectually and spiritually. Taken together, all of this is meant to make us happy, and a truly happy life ends in a full view of God in the afterlife. This, for Aquinas, is our ultimate end, and we are morally obligated to fulfill it. Any human law which conflicts with this purpose conflicts with our nature and is therefore potentially unnatural.

But how do we know what gets in the way of happiness and spiritual fulfillment? Natural law theorists try to answer this question by observing human behavior. If the law asks people to behave in a way which sharply conflicts with our natural behavior, the law can be said to make unrealistic, unnatural demandsand presumably ought to be rejected.

Take the case of humans and food. Everybody needs to eat to survive, and everybody needs to survive to develop their reason and character. In this sense, we might be said to have a natural right to the food we need to survive. But food is not just handed out in our society (although it could be), so we must pay for it. Those who do not have money to pay for food may consider stealing the food. If you can only survive by stealing, its unrealistic to expect you not to steal. Therefore, if the government passes a law prohibiting the poor from stealing food to survive, the government asks people to behave in a way that is unrealistic. If human laws conflict with the natural right to food, the right of nature may entitle us to break the law. Aquinas himself argued that its okay to steal in cases of extreme need:

It is not theft, properly speaking, to take secretly and use anothers property in a case of extreme need: because that which he takes for the support of his life becomes his own property by reason of that need.

The trouble is that human behavior varies across contexts, and natural law theorists tend to naturalize whatever they see around them. In Aristotles time, slavery was common and women were widely denied political rights. Aristotle observed this and concluded that slavery was natural and that women were naturally inferior to men. Obedient slaves and hard-working spouses make free time for men, enabling them to do philosophy. Without them, men might be less able to develop their reason and acquire the virtues. For Aristotle, laws that abolish slavery or enfranchise women would conflict with the ability of men to realize their purpose. A free man might even have a natural right to own slaves and dominate his spouse.

Things can get disturbing very quickly. To make matters worse, its hard to get everyone to agree on what human nature is. The Catholic Church made Thomas Aquinas a saint, and helped spread his views about what was natural throughout Western Europe. But as Protestants and humanists challenged the church, new debates sprung up about what counts as natural. Thomas Hobbes argued that its natural for us to try to kill other people if theres no king around to intimidate us. David Hume argued that its natural for us to steal from strangers to give to our family and friendsunless somebody stops us. Immanuel Kant argued that its natural for us to submit ourselves to a universal moral law. Jeremy Bentham argued that its natural for us to pursue pleasure and avoid pain.

As the debate about whats natural got more intense, it became harder and harder to use natural laws and natural rights politically. Political theorists increasingly abandoned the natural law tradition. Bentham dismissed natural rights as anarchical fallacies and nonsense upon stilts. When conservatives criticize the Enlightenment, they criticize it in part because they feel that Enlightenment theorists badly butchered the concept of the natural. Many conservative theorists have deep affection for Thomas Aquinas and want us to start the conversation over, returning to his theory as a jumping off point. But the concept of the natural was too vague to begin with. It was too easy to redefine, and that made it too hard to establish a consensus on what it meant, even when the Catholic Church was ready and able to defend its ideas. Today, the splintering of Christianity into large numbers of denominations and the rise of secularism makes that consensus completely impossible.

In any case, the enforcement of a religious consensus cuts against Aquinass own argument. Aquinas is the one who argued that its natural for us to develop our reason. If we dont have the liberty to use our reason to dispute what the natural means, we are being prevented from fulfilling our natural purpose as Aquinas understood it. A consensus on the natural can only be enforced by unnaturally restricting the development of human reason, and therefore Thomist natural rights theory can only be politically instantiated by systematically violating it.

Increasingly, political theorists moved away from the language of natural rights toward a language of human rights. But this is a sleight of hand; human rights are themselves a spinoff of natural law theory. Human rights are grounded on international law, and the first theories of international law grounded international law on natural law. Dutch philosopher Hugo Grotius argued that states that violate natural law forfeit their claims to sovereignty. This quickly developed into a convenient moral justification for colonialism. Grotius argued that human beings are entitled by nature to seize uncultivated land. Many Indigenous peoples were hunter-gatherers, or used farming techniques that Europeans considered primitive or inefficient. For Grotius, these peoples had no right to keep lands they were not efficiently farming, and the Europeans had a natural right to take these lands away from them. Its ironic, isnt it? The idea of the natural so easily allows some people to do things other people consider to be unnatural. Many of the practices that strike most of us as deeply unnaturallike slavery and imperialismwere excused with the help of natural rights arguments.

It is difficult to find an alternative basis for international law, and therefore an alternative basis for human rights. If human rights come from being human, that implies that there must be something in particular that is fundamental about the human experience. How can we have human rights without a theory of human nature? And once we try to define human nature, were back in the same old definitions swamp. We cant agree on what human nature is, and therefore we cant agree on which rights are specific to the human experience.

The ambiguity of the concept of human nature allows powerful vested interests to dictate the definition of human nature for the purposes of determining the content of human rights laws. The Universal Declaration of Human Rights was written in 1948, at the peak of American power, and it reflects mid-20th century American liberal values. It does not include most of the economic rights Bernie Sanders lays out, and those that are included are heavily watered down. Theres a right to work, but no right to a job. Theres a right to an adequate standard of living, but no detail about what counts as adequate housing or healthcare. The right to education extends only to the elementary and fundamental stages. There is no mention of retirement, just a fleeting reference to securityin the event of old age. There is no discussion of the environment, or even of access to clean air and water. By contrast, the right to own property is explicitly protected, and the family is declared the natural and fundamental group unit of society.

Just as Grotiuss arguments were used to justify colonialism, contemporary human rights law is frequently used to justify American military interventions in post-colonial countries. Unsurprisingly, many post-colonial governments understandably feel that the system of international law lacks democratic legitimacy. The UN Charter was signed in 1945, a month after the end of World War II. It structured international power in a deeply unbalanced way. The UN General Assemblywhich includes all the member statescan only issue non-binding resolutions. Only the UN Security Council can issue binding resolutions, and the permanent members of the Security Council have the power to veto any resolution they dislike. The permanent members are the countries that were most powerful at the end of the war: the United States, UK, France, China, and the Soviet Union. Post-colonial states enjoy a majority in the General Assembly, but they can only pass resolutions through the Security Council, where their old colonial masters exercise veto power. A few years before he was deposed and murdered in a U.S.-led intervention, Libyan leader Muammar Gaddafi expressed the resentment felt by so many people in post-colonial states:

We are not committed to obeying the rules or the resolutions of the United Nations Security Council in its present form because it is undemocratic, dictatorial and unjust. No one can force us to join the Security Council or to obey or comply with resolutions or orders given by the Security Council in its present composition. Furthermore, there is no respect for the United Nations and no regard for the General Assembly, which is actually the true United Nations, but whose resolutions are non-binding. The decisions of the International Court of Justice, the international judicial body, take aim only at small countries and Third World nations. Powerful countries escape the notice of the Court. Or, if judicial decisions are taken against these powerful countries, they are not enforced.

There are, then, three key issues with natural and human rights:

Therefore, we need a different way of substantiating rights that is harder to abuse.

We might instead argue that what really secures rights is not some universal theory of human nature, but the fact that those rights have been instantiated through a legitimate political process. When Bernie Sanders proposes these new economic rights, he doesnt need to argue that they are universal, fundamental rights that apply to all people in all places. He can instead argue that, as citizens of a democracy, we can and should use our democratic political institutions to create new rights for ourselves. Bernie Sanders does not have to revise the definition of human naturehe can encourage us to revise what it means to be an American. He can ask us to use our power as Americans to increase the set of rights we as Americans enjoy. His rights are civil rights, rights that would shape the fundamental character of being American.

Good Americans need to be able to participate in civil society organizations. They need to be able to participate in democratic political institutions. Participation in civic life, however, requires a basic level of economic security. When people dont enjoy these basic economic rightslike the right to a good-paying job, to food, to housing, and so forththey have to spend too much of their time and energy desperately treading water (in the case of many Americans, working multiple jobs to make ends meet). Treading water means less time and energy to participate in things outside of ones immediate life. Its hard to think about the common good when you have to worry that you might lose your home or your access to quality healthcare. Even when Americans do participate in politics, they participate from a place of fear and anxiety. Politicians and the media easily play on these feelings, and it becomes easy to encourage Americans to blame and fear one another. They vote for lesser evil candidates, for candidates who promise to protect them.

Centrists worry constantly about polarization, a lack of civility, and a collapse of democratic norms. Well, Americans are scared because we lack security. Were upset because were worried about our future. In an era of free markets and free trade, weve been plunged into a competitive global economy and forced to work longer hours for lower wages as the costs of healthcare, housing, and education skyrocket. Were worried about paying the bills, about paying our debts, about a world where technology advances while ordinary people are left behind. Increasingly, its hard to be civil to each other without economic civil rights. People are under too much stress. If centrists want civility, they need to relieve the economic stressors that drive so many to frustration and despair.

We can argue for economic civil rights even if we disagree strongly with one another about human nature. Whatever you think the purpose of life is, it should be compatible with ensuring each and every American citizen is in an economic position that allows them to effectively exercise their citizenship. Whats more, economic civil rights make it easier for people to do a lot of other things. If you agree with Aquinas and think the purpose of life is the cultivation of reason and virtue, its a lot easier to do those things if youre economically secure. You cant study philosophy or religion or participate in civil society if you have to spend all of your time desperately trying to get by. Many ancient and medieval writers politically excluded the poor precisely because they did not feel the poor were in a strong enough economic position to participate effectively in public life. These economic rights directly address that traditionally conservative concern. Insofar as conservatives value democracy, economic rights make democracy work better.

Some people dont like civil rights because they apply specifically to Americans. They argue that by tying these rights to being American instead of our common human nature, we are implicitly denying them to non-Americans. But there is currently no set of legitimate political institutions that can democratically instantiate rights at the global level. The global institutions constructed after World War II marginalized the citizens of poorer, weaker countries. These institutions have no direct democratic connection to ordinary people. Even people living in rich countries often feel alienated from the United Nations, the International Monetary Fund, the World Bank, and the World Trade Organization. These institutions dont consult ordinary people about anything. The people who run them are drawn overwhelmingly from the upper classes of the richest states. They simply do not have the political legitimacy necessary to effectively determine what rights poor and working people should or shouldnt have. To instantiate economic rights at a global level, wed need an entirely new set of institutions.

Instead of trying to foist a 20th century liberal worldview on the worlds people through a slanted conception of human rights, we might try offering American citizenship to people we feel have been wrongfully excluded from its benefits. Ive previously written for Current Affairs about how we might incorporate people who have been excluded from citizenship. It has to be done carefully, but it can be done.

Other people dont like civil rights because theres no guarantee that they wont be repealed. Natural rights and human rights are thought to be timeless (even though no one agrees on their content, and in practice international organizations and powerful states decide what they mean). By contrast, proponents of civil rights openly acknowledge that rights only last as long as the civil institutions that enacted them continue to back them up. It is true that civil rights are subject to politics and can always be revised by political means, but this cuts both ways. When rights are considered timeless, they are politically hard to repeal, but they are also politically hard to expand. By acknowledging that rights are civil, we leave open the possibility that in the future, Americans may decide that they need even stronger rights than we can presently imagine. American civil rights belong to Americans, and it is up to us to decide what they mean. If we prevent future generations of American citizens from having the chance to revise the set of rights associated with being American, we prevent them from exercising their rights as Americans.

It would be wrong to dominate future generations in this way, just as it is wrong for us to allow previous generations to prevent us from expanding our rights. The Supreme Court often gets in the way of rights expansion. Constitutionalists and originalists leave us trapped in the political concepts they associate with the founding. For Justice Samuel Alito, we only have the rights explicitly enumerated in the constitution, those that are deeply rooted in this nations history and tradition, or those that are implicit in the concept of ordered liberty. Every generation should have the opportunity to contribute to the development of the political concepts that constitute the society it has to live in. President Roosevelt considered using the amendment mechanism to force the judiciary to accept the validity of economic rights. If we can build broad enough support for these rights by addressing working people in both red states and blue states, we might be able to use the justices commitment to the amendment mechanism to our advantage.

For some conservatives, the dynamic character of civil rights is a problem. If civil rights remain open to redefinition, could Sanderss economic rights be a slippery slope? But the idea that rights can be grounded on a political process rather than a single theory of human nature is not especially radical. The Republican Party is itself named for republicanism, a political tradition rooted in the idea that being a member of a polity and exercising the rights associated with political membership is an important part of life. Aristotle advanced a concept of human nature, but he also argued that we are political animals, and that a citizen is one who has the right to participate in deliberative or judicial office. We should ask conservatives whether they really feel a person who doesnt enjoy Sanderss economic rights can participate effectively in public deliberations. What kind of republicans would they be, if they leave these citizens out in the cold? If Americans are to have the time and energy to do politics, and the peace of mind necessary to do it well, they need, at the very least, the right to quality healthcare, the right to a complete education, the right to affordable housing, the right to a clean environment, and the right to a secure retirement. If we do not fight for these rights and see them granted, political discourse will become steadily more debased. Fear and anxiety will continue to spread and intensify, until Americans are driven to despair. Can democracy run on despair? Do we really want to find out?

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Thinking More Clearly About the Idea of Rights Current Affairs - Current Affairs

The Supreme Court is, and always has been, a political institution. That would be self-evident if not for the mystique that has been built up around America's most important judicial body. That aura has started to dissipate a recent Monmouth University poll found that more than half of Americans disapproved of the court's recent performance but it remains powerful enough that people take Chief Justice John Roberts seriously when he bemoans the supposed politicization of the Supreme Court. Before his retirement, Justice Stephen Breyer even published a book urging Americans to return the high court to its supposedly august and apolitical roots.

Now that the justices are evidently poised to overturnRoe v. Wade,those who insist (or imagine) that the Supreme Court must somehow remain above politics have become even more strident: Pro-choice advocates argue that the impending decision proves that that the high court has strayed from its constitutional mission, while the anti-abortion contingent insists that since judges are above politics their reasoning is unassailable and the presumed leaker has immeasurably damaged the institution.

RELATED:The fall of Roe v. Wade will only embolden the fascists: How will America respond?

These arguments are almost stunning in their historical ignorance. For one thing, the framers of the Constitution basically said nothing about the Supreme Court's mission, describing it simply as "one supreme Court." The Judiciary Act of 1789, passed during the first year of George Washington's presidency, fleshed out what the court would do, including assigning it six members (a chief justice and five associate justices; that number was officially expanded to nine in 1869). For more than a decade, however, the court took on few cases and had very little to do. The executive branch had proved strong under Washington and Congress quickly took on various legislative roles, but the judicial branch was initially unclear about exactly how much power it really had.

Chief Justice John Marshall understood something important: the appearance of putting partisanship aside would serve to legitimize more partisan decisions in the future.

Politics changed that. After John Adams lost to Thomas Jefferson in the 1800 presidential election, he decided to stack the judiciary with members of his Federalist Party so that Jefferson's Democratic-Republicans couldn't implement their agenda. Yet some of the justices' commissions were delivered prior to Jefferson's inauguration, and since the new president believed that nullified their appointments, he instructed Secretary of State James Madison not to deliver them. One such appointee, Maryland businessman William Marbury, sued Madison, claiming that his appointment was legal and the government should be required to follow through with it.

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Marbury likely believed that Chief Justice John Marshall, who was also a Federalist, would be sympathetic to his case; if so, he miscalculated Marshall's ability to play the long game. Apparently more intent on increasing his own power than aiding his political party, Marshall authored the landmark 1803 decision which agreed with Marbury that Madison's actions were contrary to law, but added that since the law involved was itself unconstitutional, it was not valid. So the precedent was established that the Supreme Court could strike down laws that it determined were in violation of the Constitution which also launched the notion that the court was above politics.

Except it totally wasn't. What Marshall understood was that the appearance of putting partisanship aside would help legitimize the court's future decisions even when they were blatantly partisan. (Arguably, the Roberts court's ruling that preserved the Affordable Care Act, while disappointing many conservatives, played a similar function.) In Marshall's case, this meant that the Federalist Party's remained relevant long after the party of Washington and Adams had faded away. Future justices sought to preserve the mantle of legitimacy Marshall had bestowed, even when they used it for very different causes.

Consider the most infamous Supreme Court decisions of the 19th century:Dred Scott v. Sanfordin 1857 andPlessy v. Fergusonin 1896. In the first of those, the court ruled that an enslaved man in Missouri named Dred Scott could not claim to have been freed when his owners took him to Illinois and the Wisconsin territory, jurisdictions where slavery was illegal. In ruling against Scott, Chief Justice Roger Taney, an avowed white supremacist, found that people with African descent "are not included, and were not intended to be included, under the word 'citizens' in the Constitution," and as such had no legal rights. (As Salon'sKeith Spencer recently noted, it is conceivable that people seeking abortions will face similar states' rights issues after Roe is overturned.)

Going one step further, the court ruled that the Missouri Compromise an 1820 legislative agreement that sought to limit the expansion of slavery in newly-added states or territories was unconstitutional. Of course the justices claimed this decision was based purely on legal issues, but the historical consensus holds that it was politically motivated. Incoming President James Buchanan, who supported the Southern slave-owner aristocracy even though he was from Pennsylvania, exerted pressure on the court to side with the pro-slavery faction, and probably heard about the decision from Taney in advance.

AfterFranklin D. Roosevelt was elected, the politically-motivated tendency to "find" reasons why laws regulating business were unconstitutional went into overdrive.

Politics again trumped the law inPlessy v.Ferguson,which required the court to rule on whether Louisiana had violated the 14th Amendment by segregating railroad cars. Since the amendment held that whites and Black Americans were equal under the law, this created a logical conundrum. Yet the justices, clearly motivated by a desire to avoid alienating white supremacists, evaded that common-sense argument and found that accommodations could be "separate but equal." The lone dissenter, John Marshall Harlan, called out the blatant political logic at play:

Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

While those decisions upholding racial discrimination are the most obvious examples, politics has influenced numerous other Supreme Court decisions as well. While the Republican and Democraticparties have in many respects traded places as "liberal" or "conservative" formations since the 19th century, both have largely supported a social consensus favoring the interests of business over those of workers. It appears clear that when judges are appointed by politicians (in this case, nominated by the president and confirmed by the Senate), their philosophies are likely to be shaped by politics. The Supreme Court has a long history of handing out decisions unfavorable to labor organizing or working people, even if they are presented in neutral-sounding legal language.

For instance, the 1899 decisionLochner v. New Yorkoverturned a law setting maximum working hours for bakers on the grounds that it violated the right to freedom of contract; that supposed right came up again in 1923, when the court overturned a minimum wage for women inAdkins v. Children's Hospital. (That ruling, by the way, came under Chief Justice William Howard Taft, a former president. That's the only time a former president has been on the Supreme Court, although Taft's successor as Chief Justice, Charles Evans Hughes, was a former Republican presidential nominee.)

AfterFranklin D. Roosevelt was electedin 1932, the politically-motivated tendency to find reasons why laws regulating business operations were unconstitutional went into overdrive. There were four justices on the Supreme Court who clearly loathed FDR's policies, and were determined to short-circuit his agenda however they could. Nicknamed "the Four Horsemen," Justices Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter viewed themselves as ideological crusaders on a mission to take down a president they perceived as a dangerous socialist.

Roosevelt tried to solve the problem in 1937 through what is now called "court-packing" specifically, by adding a new justice each time a current one passed the age of 70 but refused to retire. We'll never know whether that might actually have made the Supreme Court less political, but in the event the plan blew up in Roosevelt's face. His only consolation came in the form of an unexplained change of heart by Justice Owen Roberts, who had previously opposed the New Deal but voted to uphold Washington state's minimum wage in the case West Coast Hotel Co. v. Parrish. That deflated Roosevelt's court-packing plan and solidified the entirely fictional notion that the high court was above politics, or at least was supposed to be.

Yet not much the court has done since Roosevelt's era has made that notion more plausible than it was before 1937. In 2000, it installed George W. Bush as president in a 5-4 ruling that could not possibly have been more nakedly partisan. A decade later, inCitizens United v. FEC, the high court's conservative justices managed both to side against Hillary Clinton and assert that corporate campaign expenditures were effectively political speech, and could not be regulated under the First Amendment.

More recently, of course, the Supreme Court confirmation process has become the focus of Machiavellian politics, largely because of Senate Republican leader Mitch McConnell, who refused to consider Barack Obama's nominee in 2016, arguing that it was an election year, but pushed through Amy Coney Barrett's 2020 nomination just days before Joe Biden was elected. Add to that the firestorm that surrounded Brett Kavanaugh's confirmation in 2018, and it's almost bizarre that anyone can pretend the court is not infused with politics. Those three justices nominated by Donald Trump, of course, have created the conservative supermajority that has led to the near-certain downfall of Roe. That makes the court appear more political than ever before, perhaps but appearance is not the same thing as historical reality.

Read more on the Supreme Court and the fall of Roe v. Wade:

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Did the Supreme Court just become "political"? God, no it's always been that way - Salon