Individual Rights – Our Gift and Our Curse

I’m a liberal. When those disgruntled ranchers in Oregon stormed and occupied federal land, I agreed that they should be arrested and tried. When gay marriage was legalized in the United States, I cheered – and only mumbled displeasure that Americans didn’t do it back when Canadians did. I’m clear about my opinions – but then there’s great hypocrisy in what I believe, in rejecting one brand of activism while supporting another. Something crucial is shared by libertarian Oregon ranchers and urban gay-rights activists alike, and although few of us acknowledge that shared belief, it can’t be denied. We all love our individual rights.

The American legal system is based on Enlightenment values, which boldly declare the sanctity and integrity of the individual. The vast majority of Americans believe that the US Constitution defines us as discreet individuals, with inalienable rights possessed from the moment we’re born (or earlier, some say), who have – after that fact – agreed to join together in a nation and society. Each person is a castle, this interpretation says, with particular walls (or rights) that cannot be legally breached. For hundreds of years we’ve argued over the relative boundaries of those walls, but few of us ever question their existence in the first place. Some of us believe our individual rights apply most profoundly to our property and our guns – those ranches and arms that the government can never take away without exercising extreme tyranny. Others believe our individual rights apply most importantly to our bodies, lovers and voices – the human integrity that can never be infringed without the government exercising extreme tyranny. Both positions are grounded in a sacred respect for individual rights that isn’t, in fact, an objective truth, or even a 100% clear postulate of the Constitution. It’s an Enlightenment principle – an ideological position – that we have internalized and accepted as the foundation of our law.

In short, we didn’t have to structure our society as a gathering of castle-like people, each with isolated, impenetrable walls – but we did. That historical choice has made us individually strong. It has also made us hypocrites.

Our collective hypocrisy (or, more generously, knowing irony) was made most clear to me recently during the Oregon standoff, when mischievous Americans sent the self-sequestered ranchers boxes and boxes of sex toys. One rancher, in disgust, and in a hilarious video, mocked and dismissed the gifts by sweeping them off the table – as if the individual rights implied by sex toys had nothing to do with the individual rights he was willing to fight for. In response, the merciless mocking of the ranchers on twitter and other social media – while understandable to me – also showed a similar blindness. In terms of legal theory, those ranchers are not so dissimilar from radical progressive rights activists – they are each arguing vociferously, sometimes violently, for the sanctity of their declared castle walls. Personally, I think one set of individual rights should be limited (our access to guns and 100% sanctified property) while another set should be untouchable (our marriage and abortion rights, and free speech) due to their relative impact on other people. But, philosophically, isn’t that argument suspect? Isn’t it an act of ideological hypocrisy to chose one set of individual rights over another, simply because I think they’re better, because my life experience has taught me that?

The greatest gift of Enlightenment law is also its greatest curse. There’s an arrogance and belligerence in our voices whenever we declare our individual rights: Back off, government, I am allowed to say whatever the hell I want to say. I can own my ranch and my own gun without you taking it away. I get to marry whomever I want and it’s none of your damn business if that person is a man or a woman. I have integrity as an individual – that’s what we’re all saying. The draw bridge is up, and you’re not allowed to breach my castle wall. It should be obvious, then, that for every individual right we claim – whether conservative or liberal – there is a corresponding violence exercised on our community.

In some societies and cultures, especially historical and non-Western, the community trumps the individual. In those societies, people don’t live in individual castles; they are more like porous shelters adjacent to one another, with the only impenetrable walls those surrounding the entire community. Individual rights, in these societies, can be subordinate to the needs of the group. This, or course, exercises a kind of violence on the individual – excommunication, exile, burning at the stake. There can be an oppressive demand of conformity (sexually, socially, politically), and fidelity to community that we, as an Enlightenment society, have largely rejected.

But even in Western societies that enshrine the individual, there are cultures that lean towards one side of the spectrum or another. Americans, as we all know, legally and culturally, are (in theory) at one extreme of that spectrum, profoundly locked in individual castles. A striking comparison to Americans can be seen when we look at the ‘duty to rescue’ in the French civil code (and other countries’ civil codes, too). In American tort law, if you’re running alone on a beach and you see a person drowning – and you think you could save them without hurting yourself – you are still not legally required to come to their aid. There is no duty to rescue. Ultimately, your individual castle wall is sacred, and you do not have to breach it. In French law, however, in that same scenario, you are required to come to the endangered person’s aid. You are liable for tort damages if you don’t help someone when you can. In short, the French person’s castle wall is more porous than the American person’s wall. Certain situations require a citizen to breach his or her boundaries. This cultural and legal difference in individuality is why, I suspect, French café and communal life is so famously robust compared to the English. It is also why English speakers in France (and plenty of Algerian immigrants) can sometimes feel subsumed and oppressed by the communal beast of French culture.

The irony seen in that video I mentioned earlier arises when we, who have all agreed to live inside our individual walls, criticize other members of our larger cultural/legal community for living inside the wrong type of walls. Both libertarian ranchers and human rights activists have largely sanctified the individual over the community. We have built precarious ‘communities’ made up of discreet individuals, who are only called a community because they have all accepted one set of rights while rejecting another. That’s certainly not a ‘community’ in any old fashioned sense. And because of the utter disgust we have for each others’ politics, and our attempts to distance each other from the positions we find repugnant, we have largely refused to acknowledge the shared Enlightenment values that have led to our fractured communities in the first place.

Here’s another example: both Oregon rangers and Michael Moore are enamoured with individual rights. Moore cherishes his free speech right – and all the ways in which that right sanctifies him personally. He uses the sacred wall of free speech to garner respect and integrity for himself (by waving the flag ironically, by featuring himself as a celebrity in his every documentary, by acting as a potent commentator and relevant pundit on issues that matter to Americans). But there’s a discernable arrogance and belligerence in his voice; that tone often comes up when someone stakes a claim. Moore’s arrogance reminds me, strangely enough, of those ranchers, puffed up proudly with delusional fantasies of their own integrity.

It’s true, of course, that some political movements and leaders double down on the building of sacred walls (ehm… Trump), while others actively try to breach those walls in an attempt to connect us to each other with rickety bridges (Sanders). Either way, in Enlightenment-based, American law, hypocrisy is never far from the surface. Personally, I’m willing to acknowledge my hypocrisy boldly, and to stick with the still relatively precarious bridges of a Bernie Sanders movement (unless we want to start rethinking what an individual is, in law, from the US Constitution on up). But I’ll never do that in a strident tone. Acknowledging hypocrisy should have the effect of making us understand those we disagree with, even those we vehemently disagree with, instead of hating and ostracizing them. We are not necessarily ideologically pure; they are not necessarily ideologically corrupt. Of course, there is little desire for introspection of any kind on the right these days, and that’s a crime we’re all paying for. I only fear there is less and less of a desire for introspection on the left as well.

We should face the ugly facts: the Enlightenment, as we’ve interpreted it, enshrines us each in our individual castles. We have long decided that the walls surrounding us are sacred, and we’ve largely believed and internalized our lesson. The substance of those walls might look radically different to one group or another – whether it means property and gun rights, or sexual and social rights – but structurally they’re the same. The first amendment is one line away from the second. We are all children of the Enlightenment, and nothing is gaining by denying our shared parentage.