Jane Haddam’s WordPress weblog

Bills of Rights, and Kissing Cousins

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Well, to start,  I’d have to say that I heartily approve of our Bill of  Rights, and that I would not want out government run on the basis described by John as pertaining in Canada.

One reason is philosophical–in the  US Constitution, rights are assumed to be inherent in the person, prior to and superceding the institution of any government.  Rights are not something a society can ‘give” me, and although societies can and do violate them, they’re not something that can be taken away, either.   They are things that are true about human nature and the ways in which it functions in social groups, and especially in highly complicated civilized ones.

In the second place, rights in the US Constitution are negative–they’re limits on the power of government.   Which is why, I think,  I don’t have the same kind of problem some people here seem to with the courts considering some of the various matters they have.   I do have some problems with some of the decisions, but the process is imperfect, and that was inevitable.

As to the case referred to–that of whether they US navy could use sonar even if it harmed whales–that’s good news, not bad.  The issue isn’t whether they courts should be involved in determining naval policy.  They don’t presume to do that.   What they should be involved in is deciding what to do when laws and executive orders and rights and ratified treaties conflict, which happens all the time.

In this case, the problem was the conflict of naval policy with various environmental laws and international treaties.  Since the conflict existed, somebody needed to say what took precedence over what.

And the courts did not just step in and decide to consider something.  They can’t do that.  Somebody must bring a lawsuit.  In this case, the lawsuit was brought by, among other parties, various environmental groups who wanted to force the Navy to abide by environmental laws already in place.

And no, I don’t think it’s a bad thing that they were able to sue.   One of the rights in our Bill of  Rights sits at the end of the First Amendment, and says that the government may not abridge “the right of the people” to “petition their government for a redress of grievances.” 

In other words, if we don’t like what the government is doing, we have a lot of different avenues to stop them, and not just the ballot box.  This is not a bad thing but a good one, because some issues, although important in an absolute sense, fly under the radar of most of the population, or are so complicated that most of the population doesn’t understand them. The fact that groups with experts can challenge conflicts between laws or policies that conflict with established law or with the Bill of Rights is a good thing, not a bad one.

Right now, our Bill of Rights means that the US is, far and away, the country in which freedom of speech and of the press is most strictly honored.  The “hate crimes” legislation of the sort that has become fashionable in many parts of Europe and to some extent in Canada (and is being proposed in  Australia) is flat out illegal here.   To the extent that we have hate crimes legislation here, it is restricted to sentencing enchancement in cases that are already criminal in nature–that is, if you beat up some guy on the street and calling him the n-word while you’re doing it, you can go to jail for slightly more time (between eighteen months and two years in most places that have these laws) than if you didn’t call him anything.

Personally,  I think even that is too much, but you’ll note something here–beating up that old guy on the street is illegal no matter what you think of him or say to him.  Contrast that with laws in Italy that put Oriana Fallaci on trial for two years before her death from cancer for saying that Islam was brutal and savage and a danger to Italian culture–just for saying it, and writing it.   Or the laws in  Germany and elsewhere that make it illegal to buy or sell Mein Kampf or to deny that the Holocaust happened.

Robert is going to chime in in a moment about speech codes on college campuses, and I’m not going to deny they exist, because they do.   If you want to find out more about them, you can go to


which is the Foundation for Individual Rights in Education.  They were founded to go after the speech codes, and they use that “petition your government for a redress of grievances” thing to file law suits against colleges and universities who try to install and enforce them.

And they’re winning.  In fact, in the case of public colleges and universities, the courts have been single-voiced and adamant–no arm of the government, federal or state, may restrict freedom of expression for adults.

(The problem of public elementary and high schools is more complicated.)

Again, this is not bad news, it’s good.  The very existence of FIRE is good news.   I want lots of organizations like FIRE.  I want them everywhere.   The Founders did not believe that Americans would be noble and idealistic and community minded.   They believed that the primary focus of the citizen would be self interest, and that the safety of rights lay in the fact that we’d all be fighting each other and none of us would want to allow the rest of us an inch.

Okay, that sentence should have been shot.

I think that the major problem with the courts, from the view even of people here, has to do not with the fact that they can so intervene in disputes, but in the fact that the country, being socially in flux, keeps running up against situations that are new to it.

The Catholic parochial school system in the US is the second largest school system in the world.  It exists because Catholics objected to their children being forcd to say the Protestant version of the Lord’s Prayer in school, and to read the King James Version of the Bible.   Other non-Protestant Christians–Jews, atheists, whatever–were just shit out of luck.  They were required to pay tax money to have their government endorse religious views they did not hold, and they were required to allow their children to be forced to worship (which is what prayer is) in ways contrary to their religious beliefs.

I’m sorry, but doesn’t my Constitution say something about Congress not being allowed to establish religion?  And were we really better off–and our rights better protected–when the federal courts turned a blind eye to state and municipal violations of the rights of conscience of tens of thousands of Americans?

Actually, if the court cases had stopped with school prayer and mandatory Bible study, I don’t think there would have been such a problem with them among the population generally or in the reports that sometimes surface outside the US.  The problems come with the squishy issues.

Personally, I tend to favor an approach that allows schools to do what they want with the squishy issues, but I  do understand why some people don’t.  What do you do about a Christmas celebration in a school where a quarter of your students are not Christians?  What do you do about a Halloween celebration in a school where a quarter of your students belong to the kind of evangelical Christian family that thinks Halloween is devil worship?

There has never been, in the history of the world, a society that has attempted to maintain within the core of its citizenry the kind of diversity–racial, ethnic, religious, philosophical–we have here.  And we’re mostly doing a good job of it.   But I don’t think it’s suprising that we keep running up against people who are unable to approach their differences with their neighbors except as a matter of all or nothing.

Those people are annoying, you understand.  And eventually we’re going to have to smooth the edges out and come up with some kinds of compromise–I’m damn near an absolutist on matters of the separation of church and state, but saying that you can’t teach the poetry of John Donne in a public high school does nothing but ensure that public high school education will be second rate.

But the basic impetus is good.

As for the kissing cousines, though, and the “Europeans” generally–although freedom of speech and expression, and freedom of conscience,  is the logical evolution of a number of ideas bequeathed to us by the Greeks, the fact is that the first full-throated defense of a near-absolute freedom of the press occurs with John Milton’s Areopagetica.  It is not a pan-Western concept, but essentially an English one.   It is most characteristic of the  Anglophone sphere.

Germany,  France, and Italy never signed on to freedom of speech and have never really practiced it except in truncated versions.  Their latest forays into “hate crimes” legislation as a code for censorship are just their latest forays into censorship.  Unlike the US, Canada, Australia and the UK, there never was a time when they gave it up, or even accepted the arguments for giving it up. 

But there’s another reason why I don’t think the US in particular is at that point where Rome fell.

Here’s a curious fact:  when those polling organizations run around asking people if they think their country is the best in the world, and if they’re happy to be people of their nationality, the Western Europeans vote resoundingly no to both, and the Americans vote resoundingly yes.

The immigrants in France and  German are unassimillable not because there are a lot of them, or even because they’re systematically discriminated against.  The late-nineteenth, early-twentieth century influx of Irish and Italians to the US was far higher, as a percentage of total population, than anything the European states are experiencing now or than we are.  And we were not paragons of tolerance during that phase of immigration. 

But Americans like being Americans, and immigrants here assimilate quickly not because they’re being forced to by schools and governments, but because they want to join a mainstream that looks to them not only rich but happy.  They assimilate so fast, and so relentlessly, that the California public schools fought a losing battle for a couple of decades trying to get them to “retain their culture.”  Instead, in spite of the hammer force of “bilingual education,” Spanish speaking immigrants like all immigrants before them find that their children speak English and their grandchildren barely speak any Spanish at all. 

Robert said, in the e-mail of his I posted, that I would have no hope of implementing “such a program” as the one I suggested.

But I do not want to implement such a program.   I don’t want a single program in the US public schools.  I don’t want the Department of Education foisting “patriotic ed” on towns and cities any more than I want it foisting No Child Left Behind on the same.

That’s not how you do these things, not if you hope to be successful.

Written by janeh

November 24th, 2008 at 6:48 am

Posted in Uncategorized

4 Responses to 'Bills of Rights, and Kissing Cousins'

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  1. Not to be nit-picky, I was objecting the the bill of rights in Canada (a subject on which we will have to agree to disagree) and John was talking about the situation in Australia.

    I don’t mind the negative rights, but the positive ones especially seem to be invented on the fly and then presented as sacrosanct because, you know, they’re RIGHTS. And they also come with entire packages of how they are to be implemented, like when the right to education (and specifically, equal education in neighborhood schools) was used to dismantle a popular program for severely disabled kids because it wasn’t equal enough or neighbourly enough.

    I do agree with you on hate crime legislation – of which we have some. I think it should be enough that it’s illegal to beat someone up and it should be irrelevant if the victim is Jewish, Muslim, black, native or red-headed (I guess you’ve heard about the panic about the bullying of red-heads?)

    But it looks like that’s something I’ll have to live with, at least until it comes up as an issue in Parliament again, which doesn’t look likely in the near future.

    I don’t know if the Europeans are less into individual liberty than Anglos – they certainly talk a lot about it, especially the French. But they do love their hate crimes legislation. I can’t help thinking that ‘all people equal under the law’ is a better approach to dealing with violent crimes.


    24 Nov 08 at 9:26 am

  2. OK, this has absolutely nothing to do with today’s blog, but I couldn’t resist putting it up for comment. I just chanced across it on the CBC site.

    “I told him that universities were worried about a panic among graduating students that they would never get a job. For this reason, I gave speeches to young audiences, praising the value of a liberal arts education, saying that being able to write, understand a situation and assess its context were invaluable to any employer. But in Western Canada, the idea doesn’t go over well.

    The man looked at me. “Why don’t you say ‘the value of a conservative arts education’? That might make them more amenable.” He was serious.

    I thought about explaining that “liberal arts” is a classical term. “Liber” means “free.” It meant the education of a “freeman” as opposed to that of a slave. I thought about asking him if he divided the world into conservative and liberal, just like “pre-modern, modern and post-modern.” In other words, I thought of patronizing him. And the earlier less-polite version of me thought of telling him to consider getting stuffed.”



    24 Nov 08 at 10:24 am

  3. I’m not sure that I’m awake enough to be coherent. But I think we are approaching a core difference in philosophy of government.

    One of my professors pointed out that the USSR had a wonderful constitution in 1936. It was full of high sounding clauses about freedom of speech, freedom of religion, fair trials etc. It didn’t do the prisoners in the Gulag the slightest bit of good.

    We have seen in Zimbawee that the courts can not control a government which refuses to leave office.

    Democracy and rights do not depend on wrtten constitutions. They depend on a habit of mind and spirit – the idea that we don’t do this!

    I would say that if people are constantly going to court to enforce their rights, then that is a sign of weakness. Something has gone wrong with the way government is working. The political process isn’t doing its job.

    Jane says the sonar case is the courts cutting through a tangle of laws and treaties. Yes but that is really a legislative problem. The fact that the elected legistature let things get that tangled up is another sign of weakness.


    24 Nov 08 at 3:42 pm

  4. I think I’ve been cued. Two points:
    First, when you’ve actually won the struggle, the organizations go away. Since the American Civil War and Emancipation, the Secret Six have stopped meeting and the various American emancipation societies are pretty well out of the game. But two centuries after the First Amendment, you can still keep pretty busy trying to get a modicum of free speech on the campuses of American universities. This would seem to an outsider to indicate that the concept is not wholly accepted by the powers that be in many of our universities.

    Second, sometimes people are rightly judged by what they tolerate as well as by what they do. Speakers have been boycotted because they came from a university in a country that practiced something unacceptable to the Academy–South Africa a few years ago; Isreal from time to time now. Politicians have been in deep trouble for speaking on a campus which prohibited inter-racial dating, and the AFL-CIO refused to admit Soviet government-operated “trade unions” as legitimate counterparts. May I ask what the consequences are to a university which enforces the most draconian speech codes? Do free universities refuse to treat them as equals? Do politicians turn down honorary degrees? Seemingly censors on campus are of no concern to the other universities, or to our politicians.

    Free speech and free inquiry are core values of the English-speaking world. When the universities raising the next generation of leaders regard them as optional, the culture has a serious problem. Getting the courts involved is better than nothing, but it does not go to the root of the problem.


    24 Nov 08 at 10:23 pm

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