From time to time, in
one’s readings, he/she runs across a particularly moving bit of writing. This posting starts with such an example:
The vision of autonomy [as has been
captured by the US Constitution] incorporated an ideal of community. Autonomous, rights-bearing individuals would
live in groups and collectivities and participate in public life. Their “happiness,” as Thomas Jefferson knew,
required community. They would know
themselves, as individuals and as citizens, through their capacity to construct
intentional and voluntary forms of solidarity.
And many, particularly the many in the nineteenth century raised within
a powerful Christian culture, interpreted the development of individual
capacities as an overarching right, because it enabled one to fulfill a variety
of duties to others. One was obliged
then to become an autonomous citizen, so that one could participate usefully in
communities.[1]
And in these few words,
Hendrick Hartog captures the ironies of a host of what on the surface seems to
be contrary realities. It also gives one
a sense of priority.
In the main, the contrary nature of civil society is one in
which individuals to be useful, productive, and proactively engaged in common
causes must feel themselves individually vibrant and willful. But that individuality is important primarily
for the sake of the common welfare. The
rights enjoyed by those entities of an association or a communal arrangement are
derived from that prerequisite. It is in
that framework that individual rights should be judged and in which they are
legitimate.
To solidify that notion, one can state that the collective
– or more fruitfully considered the community – would be engaged in illegitimate
action when it sought to deprive or otherwise hamper the exercise of those
rights. Of course, more needs to be
explained to contextually place such a relationship in a meaningful consciousness
that places or instills imagery to such an arrangement.
What’s the alternative?
How else can a polity see the relationship between the participants and
itself? What remains is various forms of
paternalism ranging from coercive, punitive paternalism (the harsh, unloving
parent depicted in so many Victorian novels) to spineless, continuously
yielding parents that spoil their off springs.
Of course, one can have a loving parent, but one that holds the reigns
within which the child can function.
In
any of these cases, the potentials for the common good – and ultimately the
individual good of its participants – will fall woefully short of its
potentials. What Jonah Goldberg calls
the “miracle” – the wellspring of assets derived from market economies – counts
on individuals feeling free to pursue what they perceive their interests to be.[2] Yet such a view needs to be within the
parameters of communal demands.
Hartog claims he sees this choice between establishing a
polity of citizens with a functional consciousness of rights or forming one of paternalism
as being at the heart of whether that polity will be equipped to formulate a
populous of free adults. In turn, this
concern defines what constitutes one’s consciousness of constitutional rights.
And
given both the monopoly over coercive means and the access to national assets,
a government must lead a polity’s efforts in assuring that the more productive
choice is made. Can anyone, for example,
perceive a citizenry having a viable, general consciousness of rights without a
sufficiently viable public-school system?
This blogger cannot and probably more than any other factor goes into
motivating him to write this blog.
Yes,
when all else fails in addressing a related challenge, a government might be called
upon to enact positive laws (insisting on what citizens must do like sending
their children to school), but mostly to avoid a paternalistic role, it needs
to rely on negative laws and policies (outlining what citizens cannot do like
infringe on each other’s rights). But in
either case the trick is: government
must not fall into a regime of policies reflecting a paternal force. And all this leads to complexities.
Which
ones? Hartog identifies three types or
characterizations:
[There are] three distinct, yet
interrelated, ways of characterizing the rights required to secure
constitutional aspirations. The first
characterization, and the most familiar, is that of the right as a “trump,” a
claim that, once established, triumphs over competing values and claims. The second, and the most important for a
historical understanding of American constitutional rights consciousness, is
that of a right as a duty on public authority to undo – to destroy – the
structures that maintain hierarchy and oppression. The third is that a right as a duty to
reconstruct itself or its relations to its citizens, or lose legitimacy. They offer three ways of describing the
demand that lies behind the assertion of claimed right. The first says, “Mine!” The second says, “Not theirs!” The third says, “Do what is necessary, or I
will never again trust you!”[3]
Each of these deserves its
own treatment and will be, in turn, the subject of future postings.
But overall, this cited writer gives his readers a sense of
how imbedded certain values and attitudes must be within a populous for this
tricky business of insuring a compact-al agreement works. This blogger, as alluded to above, is probably
more motivated by his concern over what is damaging that consciousness today. For him, a key word in the cited quotes above
is duty. Duty seems to be more and more
cast in illegitimate lights. And this condition
undermines a lot. The whole structure –
as alluded to by Hartog – depends on these reasoned and emotional
commitments.
[1] Hendrick Hartog, “History of
Rights Consciousness,” in Major Problems
in American Constitutional History, Volume I:
The Colonial Era Through Reconstruction, ed. Kermit L. Hall
(Lexington, MA: D. C. Heath and Company,
1992), 11-14, 2.
[2]
Jonah Goldberg, Suicide of the West: How the
Rebirth of Tribalism, Populism, Nationalism, and Identity Politics Is
Destroying American Democracy (New York, NY: Crown Forum, 2018).
