Monday, January 17, 2005

Political Philosophy 101

Delegate John Cosgrove (R-Chesapeake) said in an interview on "AM Charlottesville" this morning on WCHV Radio in Charlottesville that "rights are granted by government" and are subject to a majority vote of the people. He said this in the context of his proposed state constitutional amendment that would prohibit same-sex marriages, civil unions, and domestic partnerships.

For an elected official, Delegate Cosgrove needs a lesson in basic political philosophy.

Let's be clear: Governments cannot and do not "grant" rights. Rights precede government. Governments are created to protect rights. Governments can acknowledge rights, they cannot create them. Governments can violate rights, they cannot destroy them. Rights exist a priori and belong to all human beings by dint of our being human. Rights are not defined or distributed or differentiated by geography, race, ethnic group, religion, age, or gender.

People who don't understand this are unqualified to be public officials.

Especially public officials from Virginia. Remember this passage from Mr. Jefferson's Declaration of Independence?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Or, in a more modern formulation, as stated by constitutional scholar Louis Henkin: "Human rights…are rights against society as represented by government and its officials. One may conclude that the government must protect the individual from neighbors or from wolves, that it must afford legal remedies against a wrongdoer…but at the bottom, the rights claimed are against the state" (The Rights of Man Today, 1978) [emphasis added].

Cosgrove's error is a common one of legal positivism, one that puts too much power into the hands of the state and of raw majoritarianism. This is something the Founders understood and warned against. (Just read The Federalist. Is that too much to expect from elected officials?) The logical outcome of such thinking is totalitarianism.

By the way, happy Martin Luther King Day and Benjamin Franklin's birthday!

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1 comment:

Anonymous said...

Cosgrove's Statement Reflects A Poisonous Intellectual Miasma Currently "In the Air"

That individual rights preceed government, and just government exists to secure them, accurately reflects the 18th Century thinking undergirding our Constitution. Like the wooden trusses of an old covered bridge, these overarching principles remain strong and resilient and enduring--only so long as they are kept covered. Faith, the simple habit of belief--this is their weatherboard, their preserving shade and shelter.

The question unasked is (if you'll forgive further stretching this already tortured analogy): has the storm of recent events blown away the cover, stripped our faith from the spanning principles and left them exposed to the glare of sun, the wear of rain, the inevitable slow destruction of dry rot?

Do we any longer believe in rights? Seriously, genuinely believe in them?

The Bush administration has corroded our belief, and perhaps irretrievably. By declaring that some human beings have no rights, that some are outside the law. By deeds more than words, by trumpting liberty even while reserving to government the power to deport for torture overseas called "rendition," or to incarcerate in a concentration camp, forever, detention without recourse. The Bush administration is teaching us that 18th Century notions of human rights are quaint, outmoded. False.

The Supreme Court to some extent rebuffed the Bush administration last summer. But the damage may already be already done.

By saying some human beings have no rights the Bush administration is advertising that really, none of us do. That rights are and always have been a mere a myth, a dream, a theory. That rights are not real, not innate, certainly not Creator-given, that rights exist only so long as government power is willing to put up with interference. Rights exist only when they don’t matter.

Delegate Cosgrove in his bumbling and thoughtless way has expressed this hardened, ruthless, faithless attitude which is the trully most destructive legacy of the Bush administration. The unaswered question is, once faith is lost what can replace it? Are we inevitably headed toward a totalitarian regime, the gates of Auschwitz which Mr Sincere foresees as the last deadly stop on Delegate Cosgrove's train of thought?