THE RIGHTS’ LEDGER

 

[This blog is amid a series of postings that aims to share with the reader a history of the nation – albeit highly summary in nature – from the perspective of a dialectic struggle.  That is the struggle between a cultural perspective that emphasizes more communal and cooperative ideals of federalism and the individualistic perspective of the natural rights construct.

The general argument this blog has made is that federalism enjoyed the dominant cultural position in the US until World War II, and after a short transition, the natural rights view has been dominant.  Whether one perspective is dominant or the other; whichever it is, that fact has a profound impact on the teaching of civics in American classrooms.]

 

Okay, to carry on from the last posting – if the reader has not read it, he/she will be well served (in terms of this posting) to do so – the current issue under consideration is how the American polity today seems to be proceeding in two directions.  On the one hand, it ignores the wishes of the majority as it seems to cater to a minority.  And at the same time, it also does not respect the decentralized, federalist beliefs and values the nation once held as a dominant bias.  This, on the face of it, is contradictory.[1]

          While addressing this contradiction, the last posting shared the ideas of Hendrick Hartog,[2] who points out that within the history of rights in the US, there has been a succession of minorities – those who found themselves as victims of inequality (women, blacks, labor, etc.) – who have opted to argue that balancing the scales would not only be congruent with constitutional principles or values but also would serve the common good. 

Generally, with a lot of backtracking along the way, the strategy overall has been successful, though much still needs to be done.  But in Hartog’s analysis, he points out that respecting the rights of these minorities has been at the expense of others being diminished.  Or as Hartog states it,

 

As a people, Americans may be “constitutionally” incapable of characterizing rights claims as a zero-sum game.  Lawyers know that a new, increased, or transformed public good must always be alleged as the necessary consequence of any recognition of previously unrecognized rights; there must be some net benefit to public welfare.  Americans have never simply righted wrongs; they have always been making things better.[3]

 

But while an overall betterment results, there are those who experience a lesser status in terms of how they previously determined their level of rights.

And those so affected in losing their rights, it turns out to be, in part, the same group, white male supremacists who, in addition to their weakened position, have felt the costs entailed with how the economy has changed in the last fifty or so years.  In their eyes, enough is enough and many have decided to react – some turning to violence.

          But there is a catch or complication in their reaction.  One of the attributes this group has shared is its love of individualism.  Yet now, to react politically, the members of this group find their individualism ill serves them in that to be politically effective – at least to have a chance to be effective – they must coalesce with other, likeminded cohorts.  They must organize and in doing so, have to give up a good deal of their individual autonomy.

          But comparing this latest group to those who preceded it – women’s groups, civil rights groups, labor groups, etc. – they, the individualist group, functions under a meaningful handicap.  That is, by using this formula in which the previous groups could reasonably cite how acquiescing to their demands would bolster the common good (in part, as defined by constitutional values) the individualists cannot reasonably make such a claim. 

To be clear, this zero-sum character, in which acquiring rights under natural rights calculations, is acquired at someone else’s expense, has taken various guises.  To illustrate, labor rights take away rights from business owners, women’s rights diminish rights of men, black rights are captured from white rights, etc. 

A right here is not necessarily some in-born license to do something (e.g., the right to speak freely), but a socially defined advantage a society allows certain people.  At times that could be a payment for a service they render or it can be the opportunity to purchase an advantage.  But if an aggrieving party – a party denied the advantage – claims that the common good would be advanced by it being allowed the advantage, this further legitimizes their claims.[4]

So, proposing a common benefit helps get those rights secured for the compromised citizens.  But eventually, that “someone” else’s advantage from whom the advantage is taken, is or has been continuously aimed at, to a great degree, the same limited number of actors, the ones who do not enjoy a good deal of other assets. 

After a while, that continuous targeting has had an effect.  And one should not be surprised that that group – the targeted group – is apt to react.  That seems to be the case with this latest version of a minority asserting its “rights.” 

But the problem with this latest rendition is that they, the white males, cannot cite comparable constitutional values.  And it happens that many of them have been suffering economic challenges due to changes in the economy.  So, unlike previous, aggrieved parties, they cannot – at least not in a reasonable fashion – cite either constitutionally defined injustices or the advancement of the common good by way of addressing their complaints. 

Instead, and here is the scary part, they have cited counter-constitutional claims and a reasonable interpretation of those claims is of them being fascistic.  Yes, their language to date is still hinted at or expressed as inuendo, but that is changing and it is becoming more direct and open. 

One can therefore legitimately see this as being anti-democratic regardless of whether – as this series of posting has asked – the US is losing a simple majoritarian form of democracy or a compounded form of majoritarian rule which in this nation has been under the guise of federalism.

At the heart of the problem with the former uprising claims, those that are based on constitutional precepts reflected the fact that the American form of federalism was informally based on a highly parochial foundation.  Federalism relies on the historical development of a people either directly or through representation forming a polity.  Formally, the term, “people,” unless otherwise limited, includes all agreeing parties. 

Yet historically, in the eyes of many if not most Americans, the included parties were limited to Western European immigrants or their descendants.  Actually, this condition was initially more limited in that it included only Protestant, Anglo-Saxon people.  For example, in reading the national history as late as the 1850s, one can find a vibrant, highly popular movement, the Know Nothing movement, being actively antagonistic toward Roman Catholics as immigration from Ireland and other Catholic, European nations grew.[5]

It is from that tradition that one can trace the connection to current day individualists whom one finds claiming they have had enough – enough of them losing their privileges or rights as Hartog describes them.  These individualists who now find it necessary to form this collective, anti-democratic cabal, have long ago lost their federalist bent, due in part to the nation not sufficiently shedding its bias for white, Anglo supremacy – its parochial character. 

For the rest of the nation, is it too late to adopt a more liberated form of federalism that sheds the parochialism?  Many Americans have adopted a more liberated sense of what it means to be an American, but there is that minority who feels it has been put upon one too many times. 

Perhaps, as the evidence seems to indicate, it is too late for these “parochialists” to be “liberated.”  This blogger does not see a healthier future for the nation without reenergizing its federalism, but within a liberated format.  And in that, civics education has a definite role.

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[1] America has a compounded democracy based on a dispersion of majoritarian rule along territorial basis as in the power at the central government and that of the states.  And, of course, that would be its federalist arrangement.  A simple majority rule arrangement is characterized by a centralized republic in which the national government retains most powers.  When a minority can block the wishes of the majority, that would seem to advance a federalist agenda, but in this case, that is not what is happening when the substance of those blockages reflects efforts to degrade the voices of a number of minorities such as racial, ethnic, gender, and employment designations.  See Daniel J. Elazar, Exploring Federalism (Tuscaloosa, AL:  The University of Alabama Press, 1987).

[2] Hendrick Hartog, “A History of Rights Consciousness,” in Major Problems in American Constitutional History, Volume II:  From 1870 to the Present, edited by Kermit L. Hall (Lexington, MA:  D. C. Heath and Company, 1992), 2-14.

[3] Ibid., 8.

[4] For example, for a global review of this claim, see Joseph Losavio, “What Racism Costs Us All,” Finance and Development/International Monetary Fund (Fall, 2020), accessed January 31, 2022, https://www.imf.org/external/pubs/ft/fandd/2020/09/the-economic-cost-of-racism-losavio.htm .

[5] Michael F. Holt, The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War (New York, NY:  Oxford University Press, 1999).