I recently attended the Democratic National Convention (after many unsuccessful attempts also to get an invitation to the Republican National Convention). As with every political convention, this one was a mix of soaring rhetoric, inspiring vision, nonsense and earnest theatrics. In fact, somehow I was identified as representing part of the tapestry of American life and invited onstage to stand in a tableau of ethnicity. I believe I was “old Jew.”
If you weren’t paying attention, there was some controversy. Some supporters of the candidacy of Sen. Bernie Sanders were vocally and visually disappointed that he failed to capture the nomination for president. Throughout the four days, they erupted into chants in an attempt to over-shout the speakers at the podium. The sentiments were admirable – after all, who would disagree generically with “No More War?” – but the behavior provoked the supporters of Sec. Hillary Clinton to respond with their own chants of “USA” or “Hill-a-ry” to drown out the oratorical interlopers in canary-yellow tee shirts.
My college roommate and I have been active in various causes together, but I know he will head for the exit at any protest or demonstration if people start to chant. He does not argue that chanting is not protected by the First Amendment. He just thinks it is obnoxious and annoying. He got smarter about this situation fifty years earlier than I did.
I have come to object (in my heart only) to any behavior that makes me regret the Bill of Rights. And just to be clear, it is not the content of speech or the reason for peaceful assembly or the particular grievance for which redress is being sought. It is the behavior of those willing to spend down to nothing the accumulated capital of mutual respect that makes those rights so meaningful – like the yellow-breasted saps who believed they would bring an end to war by attempting to deny a speaker the floor.
Politics has always been something of a contact sport. I guess it comes with the territory. But the fusing of politics and entertainment, which appears to be as thorough as two molecules of hydrogen to one of oxygen, has produced an acceptability of bad behavior in the name of gaining attention. And it ought to stop.
I devote my professional life to the protection of true religious freedom. Most of the reason I do so flows from the religious right. That segment of the American population consists mostly of people who call themselves conservative Evangelical Christians and believe that the values they identify with their religious beliefs are the foundational values of the United States. They are, of course, wrong. And, by the way, they are objectively wrong, not just wrong in my opinion. Read a book (that is not written by a member of the religious right).
These activists have forced court after court to rule on their manipulation of existing laws as they attempt to pervert legislation designed to ensure religious freedom for minorities. The most famous of these attempts include the county clerk whose deeply held religious beliefs prevented her from issuing marriage licenses to couples with legal entitlement and the family business whose owners’ deeply held religious beliefs prevented them from providing certain kinds of health care insurance to employees who are legally entitled to them. Civil disobedience is a time-honored tradition in the United States, but these folks are claiming that it is the law which is disobedient and they, Bible-believers they claim to be, who are being disobeyed.
Maryland politico Jamie Raskin said that public servants swear on the Bible to uphold the Constitution, they do not swear on the Constitution to uphold the Bible.
But now we have people on the secular left attempting to do the same thing. The sweet satire of the Pastafarians, adherents of the Flying Spaghetti Monster, made the point widely that no one need subscribe to any established religion – or any religion whatsoever – until they sued to be recognized as an actual religion. And now we have Satanists (well, not really, but they use the name for identification purposes) laying claim to the leisure hours of schoolchildren to object to the use of public buildings by rent-paying religious groups.
(I went to Sunday school in a local public school, for which our synagogue paid rent, because we didn’t have a building and the school sat otherwise unused and empty. Sheesh!)
Both the right and the left seem to have no argument to make other than “you’re not the boss of me.” Those arguments were always a colossal waste of recess, and they remain so now, especially since the casualty of this bad behavior is the mutual respect that holds a diverse population together. The effect is not to persuade, but to offend. In the process, more and more Americans who have in the past celebrated a wide center have fled to the margins and pledged allegiance to practitioners of crude and low-class protected speech. These are people who, knowing they may not shout “fire” in a crowded theater, merely yell, “Does anybody smell smoke? I don’t know, you tell me.”
Jewish tradition, which at this writing is still protected by the First Amendment, includes a strong encouragement to go beyond the letter of the law. That means, I believe, to live life not trying to get away with as much as possible, rather trying to live up to the ideals the law tries to protect. I have certainly been obnoxious and annoying in my time (even participating in the occasional chant), and I am glad to be protected from anything more dangerous than my friend’s eye-rolling.
My mother-in-law, of blessed memory, was the arbiter of a quality she called “class.” It had nothing to do with economic status or even pretensions to royalty. It had to do with comporting one’s self, even in disagreement, with a sense of respect and a willingness to be self-effacing even when convinced you are entirely right. So take off those shirts, stop pounding those Bibles, eat your linguini and learn some adjectives other than “stupid” and “great.” Try going beyond the letter of the law.
One of the difficult problems in American political discourse is understanding our rights. I always feel one step removed from the conversation because I am much more concerned with responsibilities – what I can do for my country – than what my country can do for me. (At least I like to think so.) Very few people have trouble asserting what they feel they are owed, including me. But when it comes time stand for principle, rather than stand on principle, we have some issues.
The disagreements we have might be illustrated by the folks who insist on different standards for the First and Second Amendments. In my experience (which does not include much time among libertarians), the absolutists who wish to preserve unhampered exercise of free speech and a free press and who object to any porousness in the wall of separation between “church and state” have a much more flexible sense of the right to bear arms. And, conversely, those who accept no restrictions on access to personal firearms are more than willing to consider limitations on what constitutes protected speech, journalism and, increasingly, religious belief.
It was Justice Oliver Wendell Homes who put the matter in what I consider the correct perspective when he said, “The right to swing my fist ends where the other man's nose begins.” That is to say that rights which are universally granted may not be exercised in a way that indulges some at the expense of others. Some people interpret that witticism a bit too literally when they suggest that only causing actual injury should limit rights, but I understand it more generally and (I think) accurately: the exercise of my specific right may not impede the rights of others.
There has been a lot of talk about privilege of late. It is privilege by another name that Holmes was describing. In the realm of religious liberty, the current whining of the religious right over the “persecution” of Christians in this country would be laughable except for its consequences. Long the majority, Christians have grown used to their values and practices being validated by public policy. Religious minorities in the US have learned to watch their noses, to use the Holmes analogy. The Protestant practice of invoking words of specifically crafted prayers at public occasions, the establishment of a Christian religious holiday as a national observance, even dating public documents with the entirely unnecessary “A.D.” (anno domini, “the year of our Lord”) have reinforced in the minds of some Christians that the default religion of the United States is Christianity. Brent Walker, the brilliant head of the Baptist Joint Committee, acknowledges the circumstances with a critical distinction when he says, “We are a Christian nation sociologically specifically because we are not a Christian nation constitutionally.” It is easy to imagine how privilege has been mistaken for right.
Indeed, the Constitution giveth and the Constitution taketh away. There are certain unalienable rights, but only three of them are named in our country’s founding documents: life, liberty and the pursuit of happiness. The rights enumerated in the Constitution are benefits of citizenship. How they are applied, modified and restricted is determined by the processes of the Constitution and the laws that rest on its foundations. That is to say that by various legislative actions and judicial rulings, there is no right in the document that may not be abridged. You can’t shout “fire” in a crowded theater nor swing your fists. You can’t preach the Gospel while the play is afoot there and you can’t brandish your firearms.
But while the circumstances of exercising rights may be restricted, the equality of access to those rights may not. We do not have two tiers of citizens – those with full rights and those with limited rights. Whatever is available in the public realm may not be restricted by someone swinging his or her fists. To be specific, the Christian majority must embrace the same rights for Muslims (and others) as for themselves, or they must accept the same abridgment of those rights.
So far, so good, I imagine, unless we get specific about the rights in question. African Americans have a lot of legitimate questions about the right to due process. Gays and lesbians have a lot of questions about the economic and social advantages that come by the right (and the rite) to marry. Woman have a lot of questions about the right to access certain kinds of health care. And gun owners have questions about the right to continue to bear arms.
All the law can go on is, well, the law. We will continue to legislate and litigate around the matters in the extension and restriction of rights until we perfect the system, which promises to be, um, forever.
What is missing is not the insistence on having rights, but on doing right. As long as any citizen or group of citizens insists that the essential question is “how far may I swing my fists,” the answer is always going to be a millimeter short of somebody’s nose – an uneasy and eminently violable standard. The citizen whose public spirit says, “I respect my fellow citizen enough to stop swinging my fists just because I can” will return America to the blessings of liberty envisioned by our founders.
The law itself draws bright lines, but the endeavor of law shines a light on values. Too much political nonsense is the result of selfish individuals and interest groups trying to preserve privilege by gaming their rights through calculated and purposeful exploitation of the lines while ignoring the values.
What is my responsibility to my neighbor? If the answer is to ensure that we both enjoy the same quality of life that we want for ourselves, then our established rights will take care of themselves.