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.