If you’re a Liberty’s Torch regular, you’ve seen me go on about constitutionalism and the requirement for a Supreme Law several times. Perhaps it made perfect sense to you, but perhaps it seemed a bit obscure, too abstract to analyze in application to the real world. If you’re one of the latter group, I hope today’s tirade will bring the central issue into better focus.
The key to the American concept, which was at one time mentioned after such phrases as “needless to say,” is the unity between two fundamentals: rights and justice.
The meaning of justice is the defense and maintenance of rights. Some commentators have made statements to the effect that justice must be viewed as a process rather than a result. That merely alludes to the impossibility of attaining perfect justice, wherein everyone’s rights are respected or restored, according to cases and circumstances. Fallible men operating under the veil of time are unlikely ever to perfect anything, justice included. We must sometimes agree to “make do;” for example, in cases involving murder and rape, where no conceivable restoration of the victim to his pre-victim state is possible.
There are people who disbelieve in the concept of rights. They dismiss the notion as “metaphysical.” They’re not entirely wrong; rights aren’t physical objects but human conceptions. The natural world doesn’t respect our rights. It operates according to laws of physics that are prior and superior to human notions. Rights exist insofar as men insist upon them and upon their defense and maintenance: i.e., insofar as we insist upon justice.
A “justice system” that does not defend and maintain a definite and well understood conception of rights is merely an enforcement scheme for someone’s preferences.
“Give to every other human being every right that you claim for yourself – that is my doctrine.” – Thomas Paine
What are rights? How do we recognize them? I’ve blathered about them before, but at this point in this screed, a brief recapitulation would be appropriate.
Rights, if they exist, are universal properties of human beings. That is, for a claim of some sort to be a right, it must belong, without contradiction or conflict, to every human being, past, present, or future. A violation of a right would require the use of force, whether “informally” or through a system of justice, to resolve. Those are the criteria by which we distinguish claims that are not rights from the real thing.
John Locke’s elucidation of the rights to life, liberty, and the acquisition and enjoyment of private property provides our starting point. Could everyone alive claim and exercise those rights simultaneously, without generating conflicts among them that could only be resolved by force? Yes. Would an invasion or infringement of those rights necessitate resolution by force? Yes. So they pass the test. Many other claims have been made that do not.
Politicians and demagogues are forever claiming this or that to be a “right.” Consider Franklin D. Roosevelt’s “Four Freedoms,” which he regarded as “rights” to which all persons are entitled:
- Freedom of speech,
- Freedom of conscience,
- Freedom from want,
- Freedom from fear.
Items 1 and 2 above can be derived from the Lockean rights to life and liberty. They pass, which is why they’re mentioned explicitly in the First Amendment to the Constitution. But “freedom from want” presents a quite different profile. “Want” is a wholly undefined and unbounded thing. If Smith “wants,” does he have a right to be satisfied? What if his “want” is for Jones to work for him for nothing, or for Jones to surrender his rightful property for no compensation? Similarly, “freedom from fear” fails the test. Smith’s fears are as undefined and unbounded as his wants. Should Smith have a right to have Jones killed, on the grounds of his fear?
A recent case of a claimed “right” that’s nothing of the sort is the “right to health care.” There was a time when there were no doctors, nurses, or medical equipment...but plenty of sick people. Did they have a “right to health care?” If so, from whom? Similarly, would the “right to health care” permit me to force a doctor to treat me for no compensation, or a pharmacy to provide me my drugs at zero cost? Absurd.
Here’s another: the “right to a living wage.” I’d have thought this one would be laughed into oblivion as soon as it was raised, but...well, anyway. Do savages living in the jungle have a “right to a living wage?” What about persons in our own society that can’t work at all, because of crippling disabilities? Who’s supposed to pay them their “living wage,” and why?
Remember this test; it will protect you from innumerable specious claims of “rights” in the future.
It’s just as important to be ready to condemn violations of acknowledged rights in the name of someone’s preferences or “cause.”
One of the implications troubles some people. Do you claim a right to freedom of expression? You do? Very good, sir...but what about that pornographer over there? Do you allow that he has the same right? If not, why not?
Here’s another. Do you believe in the right of private property? You do? Very good...but what about that cranky old neighbor who’s tired of your kids tramping through his back yard? Does he have the same right? If not, why not?
Unless you’re willing to defend the rights of others even when you disapprove of how they exercise their rights, you don’t really believe in rights; you believe in permissions to be awarded by those who generally share your preferences.
In my travels – 68 years’ worth, so far – I’ve met very few people who genuinely believe in rights. If you do, I hope you’re consistent about them. If you’re not...what do you really believe in?
End of recapitulation.
The above is prefatory. I hope it hasn’t tired you out already, because the “main event” is only just about to arrive. It concerns a phrase that has been much bandied about in recent years...in almost every case fallaciously, even with intent to deceive. You will recognize that phrase, and cringe at the ways it’s been used to bludgeon you, as soon as you read it.
Once a society decides to allow a State – a government, for those of you confused by the capitalized term – it must settle on a conception of rights and a justice system. Note that even the most horrifying totalitarian states make a show of professing “rights,” though those “rights” and the “defense” of them are not things you or I would care to endure. As I said above, the concept of rights is the basis for any concept of justice. Even the tyrants of a state as bad as Hitler’s or Stalin’s must give rights lip service. The alternative is the bald assertion that “might makes right” – that the word of the Maximum Leader and the truncheons of his enforcers will provide all the law we need.
If a right, once admitted, is universal, then no man can defensibly claim a “right” to violate another’s rights. Nor does it matter whether he’s a government employee. The whole point of recognizing certain rights is to pre-enjoin everyone, including agents of the State, from violating them, and to pre-exculpate all persons for doing whatever they must to defend against would-be violators.
Time was, even schoolchildren would call this “obvious.” In fact, it goes by a familiar phrase that you’re about to encounter here. Today it causes widespread head-scratching...almost entirely because of the deliberate distortion of the concepts of rights and justice.
That familiar phrase – I hope you’re securely seated, Gentle Reader – is:
The overriding reason for the Bill of Rights – which, be it remembered always, is integral with the Constitution – was to emphasize that rights are protected by the Supreme Law of the Land: the law to which all other laws, regulations, and governmental activities must conform. Were the Constitution not the Supreme Law, one could argue that “rights” are considerations of no greater importance than any law, regulation, or the means for their enforcement. (Note that this has happened anyway, through judicial “reinterpretations” of the Constitution and its provisions.)
Now we come to the news item that redlined my turbines this morning:
The Covert Human Intelligence Sources (CHIS) Bill was introduced to Parliament by the Home Secretary Priti Patel, with the much-publicized intention of permitting undercover operatives to break the law.However, the bill is far more extensive in terms of who it extends such provision to, with a wide variety of governmental departments listed: “Any police force; The National Crime Agency; The Serious Fraud Office; Any of the intelligence services; Any of Her Majesty’s forces; Revenue and Customs; Her Majesty’s Revenue and Customs; The Department of Health and Social Care; The Home Office; The Ministry of Justice; The Competition and Markets Authority; The Environment Agency; The Financial Conduct Authority; The Food Standards Agency; The Gambling Commission.”
The bill proposes that criminal activity would thus be permitted for members of all these bodies. The summary of the document states that it is to: “make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.”
The CHIS bill is deliberately vague about what crimes are to be permitted, stating that criminal conduct is necessary if it is “in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom.”
Any government agent may grant permission for criminal activity, providing that he merely “believes” it to be necessary in accordance with the prescriptions mentioned. No substantial proof seems to be required.
Yes, it’s Britain and not the United States...but think for a moment about the way law enforcement – at all levels – has operated during the century behind us. I can’t think of any Constitutionally “protected” right that hasn’t been violated millions of times, in the name of enforcing some “law.”
I’m not going to enumerate the rights so violated. If you’ve been paying attention, you know what they are. If not, just read the Bill of Rights. With the possible exception of the Third Amendment, every one of its “guarantees” has been violated innumerable times, entirely without penalty to the violators. Indeed, the violators have been shielded by court decisions. In one of those decisions, “Martinez-Barker,” the court ruled that a credible order from a hierarchical superior exculpates the government agent who acts upon it. Another, Barnes v. Indiana, ruled that there is no right to resist the police.
Under these conditions, the much ballyhooed “rule of law” has become a farce. Government agents can do whatever they please to any private citizen or private concern. Arrest and detention without accusation or trial? Asset forfeiture in the absence of a crime? The extra-judicial slaughter of private citizens over a possible violation of a tax provision? All just fine. (Let’s not go into what government agents have done to American citizens outside the territorial jurisdiction of the United States.)
Britain’s “CHIS Bill” would give legal coloration to the notion that sovereign immunity covers any and every action of any government agent, so long as he pleads that he “believed it necessary.” The United Kingdom is on the verge of enacting into “law” the de facto state of affairs that currently exists both there and in America.
Over the several decades of my personal interest in law, political systems, and the theories behind them, I’ve often been bemused by the hand-waving that persons with an axe to grind will use to deflect or dismiss objections to their proposals. The notion that rights have been specified and guaranteed by the Supreme Law is often a major irritation to such persons. They routinely seek to steamroll Fourth Amendment protections of personal privacy and Fifth Amendment protections of private property...and they frequently succeed. Their argument is nearly always reducible to a single word: “necessity.” It’s remarkable how many persons automatically accept their contentions, and how seldom they’re called to account for the damage their nostrums have inflicted on private citizens.
They have made a farce of rights and justice. In Bertrand de Jouvenel’s words, “Law has lost its soul and become jungle.” Yet, incredibly, you’ll hear those same persons prattle about “the rule of law” as if it retained any shred of its original meaning...usually when there’s an electoral contest to be won. Sincerity? None detectable. Nor are the members of any party free from this sin.
Some farces are laugh-worthy. This one is not.
