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A Special Supplement: Taking Rights Seriously

I

The language of rights now dominates political debate. Does our government respect the moral and political rights of its citizens? Or does the government’s war policy, or its race policy, fly in the face of these rights? Do the minorities whose rights have been violated have the right to violate the law in return? Or does the silent majority itself have rights, including the right that those who break the law be punished? It is not surprising that these questions are now prominent. The concept of rights, and particularly the concept of rights against the government, has its most natural use when a political society is divided, and appeals to cooperation or a common goal are pointless.

The debate does not include the issue of whether citizens have some moral rights against their government. It seems accepted on all sides that they do. Conventional lawyers and politicians take it as a point of pride that our legal system recognizes, for example, individual rights of free speech, equality, and due process. They base their claim that our law deserves respect, at least in part, on that fact, for they would not claim that totalitarian systems deserve the same loyalty.

Some philosophers, of course, reject the idea that citizens have rights apart from what the law happens to give them. Bentham thought that the idea of moral rights was “nonsense on stilts.” But that view has never been part of our orthodox political theory, and politicians of both parties appeal to the rights of the people to justify a great part of what they want to do. I shall not be concerned, in this essay, to defend the thesis that citizens have moral rights against their governments; I want instead to explore the implications of that thesis for those, including our present government, who profess to accept it.

It is much in dispute, of course, what particular rights citizens have. Does the acknowledged right to free speech, for example, include the right to participate in nuisance demonstrations? In practice the government will have the last word on what an individual’s rights are, because its police will do what its officials and courts say. But that does not mean that the government’s view is necessarily the correct view; anyone who thinks it does must believe that men and women have only such moral rights as government chooses to grant, which means that they have no moral rights at all.

All this is sometimes obscured in the United States by our constitutional system. The Constitution provides a set of individual legal rights in the First Amendment, and in the due process, equal protection, and similar clauses. Under present legal practice the Supreme Court has the power to declare an act of Congress or of a state legislature void if the Court finds that the act offends these provisions. This practice has led some commentators to suppose that individual moral rights are fully protected by our system, but that is hardly so, nor could it be so.

The Constitution fuses legal and moral issues, by making the validity of a law depend on the answer to complex moral problems, like the problem of whether a particular statute respects the inherent equality of all men. This fusion has important consequences for the debates about civil disobedience; I have described these elsewhere1 and I shall refer to them later. But it leaves open two prominent questions. It does not tell us whether the Constitution, even properly interpreted, recognizes all the moral rights our citizens have, and it does not tell us whether, as many suppose, citizens would have a duty to obey the law even if it did invade their moral rights.

Both questions become crucial when some minority claims moral rights which the law denies, like the right to run its local school system, and which lawyers agree are not protected by the Constitution. The second question becomes crucial when, as now, the majority is sufficiently aroused so that Constitutional amendments to eliminate rights, like the right against self-incrimination, are seriously proposed. It is also crucial in nations, like England, that have no constitution of our form.

Even if the Constitution were perfect, of course, and the majority left it alone, it would not follow that the Supreme Court could guarantee the individual rights of citizens. A Supreme Court decision is still a legal decision, and it must take into account precedent and institutional considerations like relations between the Court and Congress, as well as morality. And no judicial decision is necessarily the right decision. Judges stand for different positions on controversial issues of law and morals and, as the recent fights over Nixon’s Supreme Court nominations showed, a President is entitled to appoint judges of his own persuasion, provided that they are honest and capable.

So, though the constitutional system adds something to the protection of moral rights against the government, it falls far short of guaranteeing these rights, or even establishing what they are. It means that, on some occasions, a department other than the legislature has the last word on these issues, which can hardly satisfy someone who thinks such a department profoundly wrong.

It is of course inevitable that some department of government will have the final say on what law will be enforced. When men disagree about moral rights, there will be no way for either side to prove its case, and some decision must stand if there is not to be anarchy. But that piece of orthodox wisdom must be the beginning and not the end of a philosophy of legislation and enforcement. If we cannot insist that the government reach the right answers about the rights of its citizens, we can insist at least that it try. We can insist that it take rights seriously, follow a coherent theory of what these rights are, and act consistently with its own professions. I shall try to show what that means, and how it bears on the present political debates.

II

I shall start with the most violently argued issue. Does an American ever have the moral right to break a law? Suppose someone admits a law is valid; does he therefore have a duty to obey it? Those who try to give an answer seem to fall into two camps. The conservatives, as I shall call them, seem to disapprove of any act of disobedience; they appear satisfied when such acts are prosecuted, and disappointed when convictions are reversed. The other group, the liberals, are much more sympathetic to at least some cases of disobedience; they sometimes disapprove of prosecutions and celebrate acquittals. If we look beyond these emotional reactions, however, and pay attention to the arguments the two parties use, we discover an astounding fact. Both groups give essentially the same answer to the question of principle that supposedly divides them.

The answer that both parties give is this. In a democracy, or at least a democracy that in principle respects individual rights, each citizen has a general moral duty to obey all the laws, even though he would like some of them changed. He owes that duty to his fellow citizens, who obey laws that they do not like, to his benefit. But this general duty cannot be an absolute duty, because even a society that is in principle just may produce unjust laws and policies, and a man has duties other than his duties to the state. A man must honor his duties to his God and to his conscience, and if these conflict with his duty to the state, then he is entitled, in the end, to do what he judges to be right. If he decides that he must break the law, however, then he must submit to the judgment and punishment that the state imposes, in recognition of the fact that his duty to his fellow citizens was overwhelmed but not extinguished by his religious or moral obligation.

Of course this common answer can be elaborated in very different ways. Some would describe the duty to the state as fundamental, and picture the dissenter as a religious or moral fanatic. Others would describe the duty to the state in grudging terms, and picture those who oppose it as moral heroes. But these are differences in tone, and the position I described represents, I think, the view of most of those who find themselves arguing either for or against civil disobedience in particular cases.

I do not claim that it is everyone’s view. There must be some who put the duty to the state so high that they do not grant that it can ever be overcome. There are certainly some who would deny that a man ever has a moral duty to obey the law, at least in the United States today. But these two extreme positions are the slender tails of a bell curve, and all those who fall in between hold the orthodox position I described—that men have a duty to obey the law but have the right to follow their conscience when it conflicts with that duty.

But if that is so, then we have a paradox in the fact that men who give the same answer to a question of principle should seem to disagree so much, and to divide so fiercely, in particular cases. The paradox goes even deeper, for each party, in at least some cases, takes a position that seems flatly inconsistent with the theoretical position they both accept. This position is tested, for example, when someone evades the draft on grounds of conscience, or encourages others to commit this crime. Conservatives argue that such men must be prosecuted, even though they are sincere. Why must they be prosecuted? Because society cannot tolerate the decline in respect for the law that their act constitutes and encourages. They must be prosecuted, in short, to discourage them and others like them from doing what they have done.

But there seems to be a monstrous contradiction here. If a man has a right to do what his conscience tells him he must, then how can the state be justified in discouraging him from doing it? Is it not wicked for a state to forbid and punish what it acknowledges that men have a right to do?

Moreover, it is not just conservatives who argue that those who break the law out of moral conviction should be prosecuted. The liberal is notoriously opposed to allowing Southern school officials to go slow on segregation, even though he acknowledges that these school officials think they have a moral right to do what the law forbids. The liberal does not often argue, it is true, that the desegregation laws must be enforced to encourage general respect for law. He argues instead that the desegregation laws must be enforced because they are right. But his position also seems inconsistent: can it be right to prosecute men for doing what their conscience requires, when we acknowledge their right to follow their conscience?

  1. 1

    On Not Prosecuting Civil Disobedience,” NYR, June 6, 1968.

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