by Barry Edelson


"It's a Free Country"


If I leave my car running for half an hour to warm it up on a cold morning, and it annoys my neighbor, whose liberty is being infringed? Does my neighbor's insistence on my turning off the car infringe upon my right to do what I want on my own property, or does my idling engine infringe upon my neighbor's right to enjoy his breakfast without breathing exhaust fumes?

The answer, obviously, is that both are true. This example is admittedly a trivial one, but it mirrors the trivial, almost childish, rhetoric of much of the current debate about the supposed loss of "liberty" in America. The righteous moralizing about rights and freedoms frames the argument in moral absolutes, but conflicts about rights are almost always ethical, rather than moral, in nature. In other words, it's seldom a matter of right versus wrong, but right versus right: my right to do what I want versus your right to do what you want. There is hardly anything that one can do in human society that has no impact upon someone else. One's "rights" are violated minute by minute during the course of the day because of decisions made by others, just as others' rights are infringed by decisions you make. How assiduously we tie up our trash, discipline our children or fill out our tax returns all have an impact on others. Anyone who is less than mindful about the effect his actions have on his fellow creatures is causing them an excess of inconvenience, money or injury. Then there are the larger infringements upon our "rights" that are far beyond individual control, but no less potentially damaging: what jobs are available, how far we have to walk to catch the bus, where the town is going to build the water treatment plant, whether the nation will go to war.

Since the Constitution is silent on the question of idling cars — just as it is silent about litter, loud radios, and cigar smoke wafting on the breeze — we naturally focus our attention on the larger issues that can actually be adjudicated in court, or, failing the acquiescence of judges, the court of public opinion. Even when the courts entertain such questions, the arguments are often puerile. Take the suit brought by the attorneys general of 20 states against the health care reform law. Apart from the fact that most of the law won't even come into effect for several more years, which obviates the claim that anyone has sustained an injury from it at this point, the central argument of the case is based on a grossly oversimplified notion of freedom. Because the law compels individuals to buy health insurance or pay a fine, the suit alleges that it is therefore an unconstitutional infringement on individual liberty.

Now, consider a slightly different financial arrangement: let's say the Congress, instead of mandating the purchase of insurance, granted an extremely generous tax credit to everyone who did so. The net effect would be the same: everyone would have to pay, either by buying insurance for themselves or paying higher taxes. Where is the lawsuit now? There are numerous precedents in the tax code that would render such an approach impervious to legal challenge. For example, homeowners receive a large tax deduction for the cost of interest on their mortgages. This deduction has been available since before most of us were born, but has anyone ever angrily declared that this is an unconstitutional infringement on the rights of renters? Presumably, such a suit would be laughed out of court, if anyone were foolish enough to bring it. The tax code is routinely used to fashion social policy, by rewarding certain behaviors and punishing others. Should the government not be allowed to tax alcohol more highly than clothing, or give tax credits to business that hire more employees but not to those that ship jobs overseas?

It is not a coincidence that we hear today's anti-government agitators railing almost exclusively against economic infringements on liberty. How many such voices were raised in anger when the Congress and the President enacted the Patriot Act, one of the most sweeping anti-liberty pieces of legislation since the Alien and Sedition Acts were passed during the administration of John Adams? The last 30 years have seen not so much an erosion of our liberties, but a descent of the very discussion of freedom into solely economic terms.

The government is nearly
incapable of forging a
consensus for action because
the nation as a whole no longer
seems to enjoy a consensus on
the definitions of society itself.

(For a thorough exploration of this phenomenon, read "Ill Fares the Land", the last book by the late Tony Judt.) The social costs of millions of individuals without access to quality health care is no longer measured against the financial cost of doing something about it, but against the very right of the government to ask its citizens to pay anything at all to remedy the situation. It is hard to imagine such an argument gaining traction 40 years ago, in an era when even a Republican president, Richard Nixon, could propose a health care reform bill that was incomparably more "socialist" in both its means and ends than the one advocated by Barack Obama and actually passed by the current Congress. This is not to suggest that "Obamacare" is the best possible solution to the country's health care woes, or that it is not valid to question the extent of the government's involvement or its competence to remedy such a large problem. But that is not the debate that we were treated to.

There was a time when we possessed as a society a common understanding of the "social contract", through which it was commonly understood that one's obligations to one's fellow citizens have to be weighed against one's personal desires. This profound expression of human social behavior still survives in the simplistic political catchphrase, "With rights come responsibilities." But, as with so many other exhortations to good behavior, if you have to say it out loud you have already lost the battle. The social contract, to whatever extent it was ever actually exercised in our historically disparate and unequal America, was not a government dictate but an organic product of Anglo-American civilization. It therefore constituted a far more useful and more deeply rooted code than mere law could ever provide. The Constitution was written within the context of a social order which has all but totally vanished, and predicated upon views of man's relation to his fellow man which are no longer widely held. The abolition of slavery, the enfranchisement of women, the casting off of sexual and racial constraints in the 1960s and 1970s, followed by the loosening of economic constraints beginning in the 1980s, have utterly altered the landscape in which we live and conduct our business. The government is nearly incapable of forging a consensus for action because the nation as a whole no longer seems to enjoy a consensus on the definitions of society itself (with some, like Margaret Thatcher, going so far as to deny the existence of "society" altogether). Even after decades, many remain uncomfortable with the extent of social liberation, while others deplore the financial juggernaut of recent years. Both were rebellions against a previously entrenched order, and both are blamed in turn for the country's troubles. At the same time, who would turn the clock back to a day when women and blacks couldn't vote, or when the tax code favored married couples over single individuals? In our unwillingness to admit that there are both benefits and costs to every degree of change, that sometimes someone gains at someone else's expense, then we are incapable even of holding an adult conversation about what it means to be an American in the present day, let alone making grave decisions about the common good.

So, which constraints on your rights do you find so egregious that we should overturn the political order to make them go away? The right to ignore a stop sign? The right to take target practice with a piece of artillery? The right to pay no taxes because you don't like the majority currently in power? You see how easily the discussion turns to farce. Behind the noxious cloud of rhetoric raised by a minority of speakers at the microphone, perhaps there is a moderate, quiet consensus which indeed eschews extremes and still believes in the social contract. But do not think for a moment that the vile excess of language to which we are daily subjected does not poison the well of public discourse, or that it is not intended precisely to make consensus impossible. More to the point, do not fool yourself into believing that such venom cannot lead to deadly consequences in real life. Think about it the next time you drive through an intersection: beware the other driver who truly doesn't believe in government.

September 19, 2010


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All writings on this site are copyrighted by Barry Edelson. Reprinting by permission only.