“It is better that some should be unhappy, than that
none should be happy, which would be the case in a
general state of equality.”
The best way to corrupt a value is to maximize it. That is one of the fundamental lessons of liberalism in the postwar period. Take rights. Push one person’s rights too far and the result is the emasculation of someone else’s rights. Elevate rights to the status of an absolute and the result is the destruction of other values. Expand the definition of rights to include all desirable ends and the result is a diminution of interest in those rights that really matter. Extend the idea of rights to every conceivable animate and inanimate subject and the result is a depreciation of human rights. In short, attempts to maximize rights insure their minimization.
In the midst of the contemporary confusion over the meaning of rights comes the volume entitled Rights by philosopher Alan R. White. He lays bare the similarities and dissimilarities between rights and such notions as duty, obligation, ought, liberty, power, privilege, and claim. By doing so, he provides a welcome antidote to the muddled thinking on this subject that has prevailed on both sides of the Atlantic for the past 20 years. We have become so accustomed to thinking about rights as if they were a game. one in which the rules and participants are exchanged in tag-team fashion, that any disciplined approach seems antiquated. White succeeds because he imposes order on an area where there is little and clarity of vision where there is less still.
A favorite stratagem of new rights crusaders has been to declare something a good (money, equality of status, etc.) and then deduce a right to it. It is as though a desire for something by itself confers a right to it. But “in no sense,” White argues, “does the fact that something is good for someone provide a ground which is logically either necessary or sufficient for his possession of a right to it.” In fact, “there is nothing whose very nature conceptually gives rise to a right.” What one has a right to can be no more, or less, than what one is entitled to.
It is the left that has played fast and loose with the idea of rights and has given the discussion its present elasticity. Nowhere is this more evident than in the debate over equality. By forever trying to maximize equality, the left has twisted and trivialized the idea of rights, without seriously affecting the level of inequality. In the vocabulary of the left, equal protection before the laws has come to mean social and economic equality. Mention the term equal opportunity to a leftist, and all he hears is equality. On the other hand, mention equal opportunity to a conservative, and all he can hear is opportunity.
Consider the last example. The idea of equality favored by the left—equal outcomes—requires a policy which restricts the rights of others. They seek to help the dispossessed by dispossessing others. Helping the poor means hurting the non-poor, either through taxation or quotas. On the other hand, conservatives seek to help the dispossessed by empowering them to possess what they are capable of possessing. Helping the poor means the creation of new wealth, new markets, and new opportunities. It is a forward-looking vision, one that contrasts sharply with the zero-sum mentality of their opponents. In a real sense, conservatives are right to describe themselves as the true progressives.
“Doctrinaire liberalism,” writes Nicholas Capaldi, “is the most pervasive social ideology in our society.” Indeed it is, as anyone who has ever spent time in the academy quickly learns. Capaldi sees in contemporary liberalism a psychologistic view of man and society, one that presupposes an individual motive behind all that exists. If there is injustice or inequality (regarded as synonymous), someone must be to blame. This is the mentality that sees discrimination wherever there is group inequality. If Jewish schoolteachers earn more than Irish schoolteachers, it must be due to discrimination. It is rarely considered that Jewish teachers typically work in well-paid public schools, whereas many Irish teachers choose to work in poorly paid Catholic schools. All ideologues understand is the equation of inequality with injustice.
Having jettisoned an interest in equal opportunity, today’s liberals have embraced a right to equality. Capaldi is at his best in describing the way in which affirmative action has been manufactured in this country. Unelected bureaucrats, in a variety of administrative agencies of the Federal government, have discovered rights in areas of the law where none previously existed. More than that, they have succeeded, with the help of the courts, in enforcing these rights.
It is the university that has been hardest hit by affirmative action. Ostensibly committed to excellence, the quota-run institutions of higher education have substituted equality for quality. It is a situation which, as Capaldi notes, “was not imposed from without by politicians but positively engineered from within the university community. ” Those who have served on faculty search committees can testify to the extent that race and sex have become primary determinants in the evaluation process. Let me correct myself. I should have said that race and sex count only when there is a true position available. I have never met one person in academia who expressed a belief in affirmative action and who didn’t also try to pull strings (politely called “networking”) for a friend or lover interested in an opening. The unstated rule is “Affirmative action is fine just so long as no one has any personal interest in which gentleperson gets the job.”
Prominent among the new rights crusaders have been the U.S. Catholic bishops. The first draft of their 1984 pastoral letter on the economy asserted that having a job was a basic human right. While the second draft was somewhat more moderate in tone, provoking Michael Novak to praise the bishops for making “scores of changes,” the injunction that a job is a right remained unchanged. The logic that what is good to have entails a right to have remained as popular as ever. It is the Utopian cast to Catholic social thought that explains such logic. The communitarian spirit that is the font of Catholic teaching inclines toward collectivist responses to economic need. This ethos, which may be good in itself, prevents them from realizing that the public good may often be best served by allowing people to pursue their own interests.
Michael Novak is actively engaged in trying to change the way we have come to think about the relationship between Catholic social thought and bourgeois democracy. He is determined to show that: (a) there is more fecundity in Catholic social thought than we’ve been led to believe; and (b) there is a goodness of fit between the central teachings of Catholicism and the institutions of democratic capitalism. As any conservative Catholic will admit, this is a tall order. There can be no denying the influence of the Catholic left, which has, since Vatican II, set the agenda.
Catholics of every ideological bent agree that the heart and soul of Catholic social thought is the principle of individual human dignity. When juxtaposed with the duty to love thy neighbor, we have a catechism that makes human rights and social obligations a religious imperative. The problem is how to achieve these noble ends. Following Jacques Maritain, Novak implores us to consider alternatives to statist prescriptions.
State and society, as both Marx and Maritain observed, are analytically distinct entities. When the state seeks to do for others what they can do for themselves, or what others can do for their neighbors, it nullifies social obligations by usurping the role of voluntary associations. More important, it deadens civic spirit. A plural social order is absolutely indispensable if social obligations are to be realized. That the state has failed to provide for the people what they could have provided for themselves—if only left alone—is the legacy of Ethiopia’s Leviathan and other progeny of Marxist philosophy.
If democratic capitalism is the way, why the resistance? The hard evidence that capitalism works and socialism doesn’t is not good enough. As long as socialism continues to be seductive through its humanitarian appeals on behalf of the poor, the relative affluence that is Taiwan, Hong Kong, and South Korea and the poverty that is Africa will not be understood as the triumph of capitalism and the failure of socialism. It is the rhetoric of the liberation theologians that exercises such a visceral appeal to Catholic bishops. The case for democratic capitalism must go beyond statistical data to reach those who don’t understand how communitarian values can exist in a market economy. Novak, fortunately, is doing just that.
The political institutions of democracy can serve human rights only if we don’t expect more from them than they can deliver. Once we place demands on them to settle every conceivable dispute and provide resolution of all human conflict, we are begging the impossible and insuring dismay. Richard Posner is rightly alarmed about the toll which an overtaxed Federal court system has been asked to bear in recent years. Posner offers both diagnosis and prescription: he is insightful, creative, and practical.
The case-load explosion in the Federal courts can be traced (as almost every other problem of the 80’s can be) to the events of the 1960’s. The 1960’s was the era of rights, ushered in most visibly by the Civil Rights Act of 1964. “The last quarter-century,” writes Posner, “has seen much legislative and particularly judicial creation of federal rights.” There can be no doubting the effect which the Great Society has had on increasing the load of the Federal courts. From the rights of prisoners to the rights of welfare recipients, the number of proceedings has skyrocketed, especially at the appeal level (almost all Federal criminal defendants appeal). Equality before the laws was given new meaning as public interest lawyers and activist judges interpreted it as meaning McGovernism.
Posner challenges the conventional incorporation theory of the Fourteenth Amendment which holds that the Amendment makes the Bill of Rights applicable to the states. The Bill of Rights, he instructs, was designed to weaken the Federal government; “Apply the Bill of Rights to the states through the due process clause and you weaken the states tremendously by handing over control of large areas of public policy to the federal judges.” He suggests that, as an alternative, we limit the application of our process to laws that deprive persons of life, liberty, or property in violation of a fundamental social norm held by most of the nation. This would breathe new life into states rights without abandoning an interest in protecting agreed-upon civil liberties.
The biggest problem facing the Federal courts is not the case-load crisis, it is the perennial difficulty in deciding how best to interpret statutes and the Constitution. Posner departs from the traditional canons-of-construction approach. He would urge judges to assume the role of the other, i.e., place themselves in the shoes of the legislators and then decide the case according to how they would have wanted the statute applied. Perhaps this would save us from the practice of ingenuously finding “penumbras” in the law, but it is not certain how it would deter an activist judge from reading equal opportunity as equal results. Then again, Posner readily admits that “no one has discovered how to keep the judges within proper bounds.” Nor has anyone found a way to stop gluttons from reaching for more.
Judge Posner, as much as Novak, White, and Capaldi, is opposed to a promiscuous reading of human rights. What Richard Morgan calls the “rights industry” has been leading the way, offering an expansive exegesis of individual liberty without a murmur of concern for any attendant responsibilities. Their credo reads “When in doubt, call it a right.” By attempting to maximize freedom, they have corrupted both its meaning and usage. White, Capaldi, Novak, and Posner have provided the guns we need to do battle with this industry. It is time to use them.
[Rights, by Alan R. White (New York: Clarendon Press/Oxford University Press) $19.95]
[Out of Order, by Nicholas Capaldi (Buffalo, NY: Prometheus Books) $17.95]
[Freedom Without Justice, by Michael Novak; Harper & Row; San Francisco]
[The Federal Courts, Richard A. Posner; Harvard University Press; Cambridge, MA]