The right doesn't trust the average American

The Founders believed that anyone could determine fundamental rights. Conservatives think that's a dangerous idea

Published August 28, 2013 11:44AM (EDT)

Clarence Thomas, Antonin Scalia                          (AP/Randy Snyder/Reuters/Brendan McDermid)
Clarence Thomas, Antonin Scalia (AP/Randy Snyder/Reuters/Brendan McDermid)

I wrote yesterday about how the right is completely wrong when it comes to rights. But there is a method to the apparent madness of conservative thinking about rights: The American right believes in the Magic Window Theory of rights.

According to this theory, there are basic, universal human rights, built into human nature by God or perhaps resulting from human evolution. But even though these rights in theory are universal and discoverable by reason, in practice they were identified and understood only by British and American thinkers in a brief window of time that opened when John Locke published his Two Treatises of Government in 1689 and closed when the U.S. Bill of Rights was ratified in 1792. (Some conservatives might extend the window of time to the ratification of the Reconstruction amendments after the Civil War.)

The Magic Window Theory is a transposition, to secular political philosophy, of ideas about windows of legitimate prophecy from Judaism and Christianity. According to Judaism and Christianity, the age of legitimate prophets ended at some time in the past, so that if somebody today claims that he or she has spoken to God like Moses or Jeremiah or Hosea, he or she should be encouraged to seek psychiatric help.

In the same way, it was all right for 18th-century Virginia slave owners like Thomas Jefferson, Patrick Henry and George Mason to list what they considered to be basic rights. But nobody in the U.S. after around 1800 — much less anybody in the rest of the world — has had any business speculating about rights.

How, then, are we to discover our universal, natural rights, or to decide what subsidiary rights are needed to protect them? The American Founders, following Enlightenment thinkers like Locke, believed that anybody in any country in any time could, in theory, use reasoned reflection on the basic needs of human existence to decide what rights were fundamental and what were subsidiary. But unlike the Founders, today’s conservatives don’t trust us to think about rights. That would be dangerous. Ordinary people might come to the wrong conclusions.

Instead, we must turn to a priestlike institution of intermediaries — namely, conservative constitutional lawyers and political theorists. On our behalf, these professors and scribes will peruse the sacred secular scriptures that were written during the Magic Window of time that opened around 1776 and closed around 1792. If a right was discussed or mentioned in the Declaration of Independence, the debates at the Constitutional Convention, the state ratification debates, the Federalist papers, or other speeches or newspaper essays between the 1770s and 1800, it is possibly a genuine right, according to American conservatives. But a right that isn’t mentioned by American politicians or pundits in the late 18th century is neither a universal right that needs to be respected nor a subsidiary right that could usefully promote one or more universal rights.

The most striking thing about this elitist, text-bound conservative constitutional fundamentalism is how alien it is to the thought of the Founders themselves. Jefferson thought that human rights were to be sought in “the laws of our being” and “the moral law of our nature” — whether or not they were mentioned in the Declaration of Independence.  Indeed, Jefferson’s own Declaration says: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness …”  Jefferson did not pretend that the list in the Declaration was exclusive; it merely mentioned some “unalienable rights,” not all of them.

And the Bill of Rights itself mentions “unenumerated rights” that are real and retained by the people even though they are not listed in the federal Constitution or state constitutions.  Here is the Ninth Amendment:  “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Natural rights theorists of the Founding generation would have agreed that if civilization were wiped out, and all records of the thought of natural rights theory were lost, other people in other places and times might still be able to reason to similar conclusions, without textual guidance, even though they had never heard of John Locke or the Declaration of Independence or the Philadelphia Convention.

In contrast, today’s American conservatives appear to believe only in certain textually enumerated rights, not unenumerated rights that can be identified by reason. Is there an unenumerated right to sexual privacy? No, according to the right. An unenumerated right to information privacy? Sorry. If it’s not in the U.S. federal Constitution and it wasn’t written down on paper somewhere else by rich white Anglo-Americans in the former British colonies in the last third of the 18th century, then a right does not and should not exist.

To illustrate how bizarre this conservative theory of rights is, let us suppose that delegates in a country that has overthrown an authoritarian dictatorship are writing a new constitution. The American conservative movement sends over a delegation, and tells them what they should and should not put in the new constitution.

The American conservatives tell the foreign constitution-makers that they can’t include a right to a decent wage for all workers — but they should include a right of homeowners not to have soldiers assigned to bunk in their bedrooms.

The newly democratic nation’s constitution can’t include a right of business to be free from unfair monopolistic practices — but, according to the right-wing constitutional experts from America, the new foreign constitution could include freedom from excessive bail.

A constitutional right to adequate medical care? No way, say the right-wing Americans. Unlike the U.S., most countries in the world today include the right to adequate healthcare in their constitutions. Should the people of those nations listen to the American right and repeal those constitutional provisions?  Oh, well, at least those countries, like the U.S., can include in their constitutions a right to use British common law in civil cases. American conservatives are OK with that.

Should the newly democratic nation include a right to public education for its citizens — as many U.S. state constitutions do? Certainly not, insist the American conservatives. That would be tyranny! Socialism! Collectivism!

But while the citizens of the new democracy would not have a right to obtain literacy at public expense, according to America’s constitutional conservatives, foreign nationals should have the right to buy assault weapons written into the constitution of their country.

The Founders would have scoffed at the modern conservative idea that only one country — their own — and only one generation — their own -- had a monopoly on wisdom and prudence. What conservatives call “constitutional conservatism” is not genuine constitutionalism at all, but a parochial and impoverished kind of constitutional fundamentalism.

By Michael Lind

Michael Lind is the author of more a dozen books of nonfiction, fiction and poetry. He is a frequent contributor to The New York Times, Politico, The Financial Times, The National Interest, Foreign Policy, Salon, and The International Economy. He has taught at Harvard and Johns Hopkins and has been an editor or staff writer for The New Yorker, Harper’s, The New Republic, and The National Interest.

MORE FROM Michael Lind