So the conservative cannot advance his argument much on the ground of competing rights, but he may want to use another ground. A government, he may argue, may be justified in abridging the personal rights of its citizens in an emergency, or when a very great loss may be prevented, or, perhaps, when some major benefit can clearly be secured. If the nation is at war, a policy of censorship may be justified even though it invades the right to say what one thinks on matters of political controversy. But the emergency must be genuine. There must be what Oliver Wendell Holmes described as a clear and present danger, and the danger must be one of magnitude.
Can the conservative argue that when any law is passed, even a wrongful law, this sort of justification is available for enforcing it? His argument might be something of this sort. If the government once acknowledges that it may be wrong—that the legislature might have adopted, the executive approved, and the courts left standing, a law that in fact abridges important rights—then this admission will lead not simply to a marginal decline in respect for law, but to a crisis of order. Citizens may decide to obey only those laws they personally approve, and that is anarchy. So the government must insist that whatever a citizen’s rights may be before a law is passed and upheld by the courts, his rights thereafter are determined by that law.
But this argument ignores the primitive distinction between what may happen and what will happen. If we allow speculation to support the justification of emergency or decisive benefit, then, again, we have annihilated rights. We must, as Learned Hand said, discount the gravity of the evil threatened by the likelihood of reaching that evil. I know of no genuine evidence to the effect that tolerating some civil disobedience, out of respect for the moral position of its authors, will increase such disobedience, let alone crime in general. The case that it will must be based on vague assumptions about the contagion of ordinary crimes, assumptions that are themselves unproved, and that are in any event largely irrelevant. It seems at least as plausible to argue that tolerance will increase respect for officials and for the bulk of the laws they promulgate, or at least retard the rate of growing disrespect.
If the issue were simply the question whether the community would be marginally better off under strict law enforcement, then the government would have to decide on the evidence we have, and it might not be unreasonable to decide, on balance, that it would. But since rights are at stake, the issue is the very different one of whether tolerance would destroy the community or threaten it with great harm, and it seems to me simply mindless to suppose that the evidence makes that probable or even conceivable.
The argument from emergency is confused in another way as well. It assumes that the government must take the position either that a man never has the right to break the law, or that he always does. I said that any society that claims to recognize rights at all must abandon the notion of a general duty to obey the law that holds in all cases. This is important, because it shows that there are no short cuts to meeting a citizen’s claim of right. If a citizen argues that he has a moral right not to serve in the army, or to protest in a way he finds effective, then an official who wants to answer him, and not simply bludgeon him into obedience, must respond to the particular points he makes, and cannot point to the draft law or a Supreme Court decision as having even special, let alone decisive, weight. Sometimes an official who considers the citizen’s moral arguments in good faith will be persuaded that the citizen’s claim is plausible, or even right. It does not follow, however, that he will always be persuaded or that he always should be.
I must emphasize that all these propositions concern the strong sense of right, and they therefore leave open important questions about the right thing to do. If a man believes he has the right to break the law, he must then ask whether he does the right thing to exercise that right. He must remember that reasonable men can differ about whether he has a right against the government, and therefore the right to break the law, that he thinks he has; and therefore that reasonable men can oppose him in good faith. He must take into account the various consequences his acts will have, whether they involve violence, and such other considerations as the context makes relevant; he must not go beyond the rights he can in good faith claim, to acts that violate the rights of others.
On the other hand, if some official, like a prosecutor, believes that the citizen does not have the right to break the law, then he must ask whether he does the right thing to enforce it. In the article I mentioned earlier I argued that certain features of our legal system, and in particular the fusion of legal and moral issues in our Constitution, mean that citizens often do the right thing in exercising what they take to be moral rights to break the law, and that prosecutors often do the right thing in failing to prosecute them for it. I will not repeat those arguments here; instead I want to ask whether the requirement that government take its citizens’ rights seriously has anything to do with the crucial question of what these rights are.
The argument so far has been hypothetical: if a man has a particular moral right against the government, that right survives contrary legislation or adjudication. But this does not tell us what rights he has, and it is notorious that reasonable men disagree about that. There is wide agreement on certain clear-cut cases; almost everyone who believes in rights at all would admit, for example, that a man has a moral right to speak his mind in a non-provocative way on matters of political concern, and that this is an important right that the state must go to great pains to protect. But there is great controversy as to the limits of such paradigm rights, and the so-called “anti-riot” law involved in the Chicago Seven trial is a case in point.
The defendants were accused of conspiring to cross state lines with the intention of causing a riot. This charge is vague—perhaps unconstitutionally vague—but the law apparently defines as criminal emotional speeches which argue that violence is justified in order to secure political equality. Does the right of free speech protect this sort of speech? That, of course, is a legal issue, because it invokes the free speech clause of the First Amendment of the Constitution. But it is also a moral issue, because, as I said, we must treat the First Amendment as an attempt to protect a moral right. It is part of the job of governing to “define” moral rights through statutes and judicial decisions, that is, to declare officially the extent that moral rights will be taken to have in law. Congress faced this task in voting on the anti-riot bill, and the Supreme Court will face it if the Chicago Seven case goes that far. How should the different departments of government go about defining moral rights?
They should begin with a sense that whatever they decide might be wrong. History and their descendants may judge that they acted unjustly when they thought they were right. If they take their duty seriously, they must try to limit their mistakes, and they must therefore try to discover where the dangers of mistake lie.
They might choose one of two very different models for this purpose. The first model recommends striking a balance between the rights of the individual and the demands of society at large. If the government infringes on a moral right (for example, by defining the right of free speech more narrowly than justice requires), then it has done the individual a wrong. On the other hand, if the government inflates a right (by defining it more broadly than justice requires) then it cheats society of some general benefit, like safe streets, that it is perfectly entitled to have. So a mistake on one side is as serious as a mistake on the other. The course of government is to steer to the middle, to balance the general good and personal rights, giving to each its due.
When the government, or any branch, defines a right, it must bear in mind, according to the first model, the social cost of different proposals, and make the necessary adjustments. It must not grant the same freedom to noisy demonstrations as it grants to calm political discussion, for example, because the former causes much more trouble than the latter. Once it decides how much of a right to recognize, it must enforce its decision to the full. That means permitting an individual to act within his rights, as the government has defined them, but not beyond, so that if anyone breaks the law, even on grounds of conscience, he must be punished. No doubt any government will make mistakes, and will regret decisions once taken. That is inevitable. But this middle policy will ensure that errors on one side will balance out errors on the other over the long run.
The first model, described in this way, has great plausibility, and most laymen and lawyers, I think, would respond to it warmly. The metaphor of balancing the public interest against personal claims is established in our political and judicial rhetoric, and this metaphor gives the model both familiarity and appeal. Nevertheless, the first model is a false one, certainly in the case of rights generally regarded as important, and the metaphor is the heart of its error.
The institution of rights against the government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the government’s job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point. Anyone who professes to take rights seriously, and who praises our government for respecting them, must have some sense of what that point is. He must accept, at the minimum, one or both of two important ideas. The first is the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust.