03 July 2010

 

Where Do Rights Come From?

Quite a few, left and other, seem to be partaking generously of a Church Lady moment of smug superiority over Senator Grassley's question to Solicitor General Kagan in the hearings regarding her confirmation to be an Associate Justice on the Supreme Court of the United States. Here's the framing by Megan Carpentier at Talking Points Memo:
During his questioning of Kagan, Grassley asked her not just about her opinion of Heller, McDonald or stare decisis, but about whether the right to bear arms predates the constitution Kagan is seeking to interpret on the court. He wasn't talking about the Magna Carta, or the Hammurabic Code, however: he wanted to know whether the right to carry man-made weapons actually came from a higher power. Kagan, for her part, didn't want to get into litigating whether a higher power gave us rights before we enshrined them in the document she'll be asked to interpret.
I think Kagan missed an opportunity.

One doesn't have to agree that rights come "from God" as interpreted by Senator Grassley and by many of our fellow citizens to state that they come with being born; that is, there is a set of human rights that come with human existence, that aren't granted by human institutions like governments, that happen just because one is alive and breathing. To frame those rights as "from God" might be seen as the same kind of shorthand we use when we say the sun comes up and the sun goes down.

Granted, our using the sunrise-sunset description is not tied up with the impacts on our lives that religion frequently presents: As a gay man, I don't have to look far to know and show that religious organizations, in the small at the congregational level and in the large from the top of their various hierarchies (some less formal than others), are quite capable of disregarding the rights that are mine, from being secure in my own person (individually and collectively, clergy have misused their authority and protected one another in that since time immemorial) to not recognizing my right to marry the love of my life.

But seeing our rights as coming with life itself, regardless of one's sense of where that life originates, is, I deeply believe, more important to the establishment of communities where those rights are respected and protected than is thinking that rights are something established by people, even as certainly it is our human institutions that help us secure those rights.

By failing to distinguish between the origin of our rights and the role of governments in securing those rights, General Kagan missed an opportunity to instruct us all in the nuance that "not from man" doesn't necessarily mean "from God," (as convenient a shorthand as that might be), and that the role of governments is to secure those rights, not to invent them.

In the particulars of the 2nd Amendment to the U.S. Constitution, my friends on the left should understand that the right to bear arms stated there is an encapsulation in our Federal foundation of the concepts expressed in the Declaration of Independence that when governments attempt to "reduce [the people] under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." While I think my Tea Party friends are totally wack to believe that the U.S. government as it has evolved post-US Civil War, post-WWI, post-Great Depression, post-WWII, post-9/11 is oppressive in that way, let us agree that the people of this, or any other, nation are ultimately responsible for it; that we have the right to change that government should it become truly oppressive (which it most certainly is not). The 2nd Amendment states, as we ought to believe, that each of us has the right to use tools—and tool making is a most human trait—of our own possession to defend our personal and collective liberty. Which is something wonderful, not something to be denigrated.

We didn't make these rights, whether to marry or whether to protect ourselves and those we love and that which we possess. Those rights were here when we got here, when we started breathing. They came from no government, from no other person. Disrespect those who say they came "from God" and entertain the fantasy that they come from man, from institutions of our making, at the risk of your liberty and the liberty of those you love.

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