"I have sworn eternal hostility against every form of tyranny over the mind of man [and woman.]"
--Thomas Jefferson.
"The Americans are the best politically educated people in the world. It is worth one's while to go to a country which can teach us the beauty of the word FREEDOM and the value of the thing LIBERTY."
--Oscar Wilde.
My primary sources for this essay are:
Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
Ronald Dworkin, "Pragmatism and Law," Justice in Robes (Cambridge: Harvard University Press, 2006), pp. 36-49.
Mark Tushnet, Red, White and Blue: A Critical Analysis of American Constitutional Law (Cambridge: Harvard University Press, 1988).
Duncan Kennedy, A Critique of Adjudication (fin de siecle) (Cambridge: Harvard University Press, 1997).
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (New York & London: NYU Press, 2004).
Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982).
Laurence Tribe, American Constitutional Law (New York: Foundation Press, 1988), (2nd Ed., there are probably more recent editions and updates, but there is no better single treatise on American Constitutional law that I know of even today.).
Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986).
Martin Luther King, Jr., "Letter From a Birmingham Jail," in Why We Can't Wait (New York: Signet, 2000), Afterword by Reverend Jesse L. Jackson, Sr.
The Invisible Committee, The Coming Insurrection (New York & Paris: Semiotexte, 2009).
"You say you want a revolution?"
I like to think of myself as a kind of revolutionary.
I am not waging a military struggle of any kind and have no plans to do so. I do not place bombs in post offices. Such tactics are not helpful in the type of revolution in which I believe and to which I am committed. I am dedicated to non-violence as a strategy of "resistance and opposition" to social injustice. Nevertheless, I remain passionate about the struggle against oppression, in all of its forms, by the only means open to me and to persons such as myself -- through protest, advocacy, and argument. My appeal is to the "better angels of our natures." (Abraham Lincoln.)
Among the things to be protested and fought against, in fact, is the placing of bombs in post offices, trains or buses, whatever the political or other causes of those who would do such things.
For an argument from the opposition, anarchists, nihilistic enemies of American society in its entirety, I refer the reader to the pamphlet: The Coming Insurrection.
Despite all of my disagreements with Republicans I am much closer to any Republican than to the people who are absolute nihilists. I say this as a person of the Left.
No one should be permitted to commit crimes to dramatize a political ideology. For example, no one is licensed to blow up an airplane filled with innocent people or allowed to crash a plane into a skyscraper. ("American Hypocrisy and Luis Posada Carriles" and "Babalu and Free Speech Too.")
My revolution is a revolution of ideas. It is not a new revolution. They are not new ideas. Yet it is a revolution that is always threatened, especially now, and always in need of renewal and fresh commitment.
The ideas that I defend are always timely.
The key word here is, of course, "resistance." We all resist domination in the ways that we can. No form of resistance should be underestimated by anyone, since any resistance is better than none.
Some of us may resist oppression by taking dramatic action in the streets; others resist by refusing to remain silent about the contradictions and rationalizations that would have us legitimate oppression in our own minds.
The struggle for social justice begins within the self, only after one achieves a sense of one's own values does the struggle move out into the world.
Perhaps a good indication that we are engaged in a worthy moral struggle is the hostility to our beliefs and actions by extremists at both ends of the political spectrum. It is not possible to act constructively in the world if one's inner freedom is compromised. For those of us willing to state our beliefs and feelings publicly, at the risk of offending everyone and inviting reprisals, the right to think and speak freely is not negotiable.
Freedom will not be surrendered by Americans (all Americans have this much in common) under any circumstances. Duncan Kennedy writes:
" ... it is not only possible, but also meaningful to resist anywhere and at any time -- at upper middle class dinner parties and at the bank as well as in ... classrooms, faculty meetings, on the assembly line and in welfare offices. It is valid because wherever you are situated, the system of [social] hierarchy hurts you. It is valid because the other people situated as you are are also hurt. It is valid because all the different struggles are connected by the analogy of the structures of the different cells, and therefore [reinforce] one another."
Martin Luther King, Jr.'s words from a prison cell in Birmingham, Alabama will always be an inspiration for those struggling for human rights and the realization of America's promise:
"Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can stand cured."
My goal is to be an "intellectual guerilla fighter" launching verbal "hit-and-run" missions aimed at subverting the bundle of banalities that passes for a sophisticated stance among the decadent and smug "children of comfort," of all ages in the United States of America and throughout the world -- especially here and now, in Internet discussions, where we all meet. (See Stephen Spielberg's "Amistad.")
I am creating my own "bloodless revolution."
I am opposed to the stifling conformity that is the death of imagination and that is becoming nearly universal, particularly in the richest societies.
I dislike the facile self-satisfaction of intellectually comfortable people who are at ease with the suffering in the world.
None of us should be reconciled to the appalling amount of avoidable suffering in the world.
"It is better to light a candle," President John F. Kennedy said, "than to curse the darkness."
My writing is my candle.
I can hear the cynics grumbling and chuckling about my idealism and lack of sophistication. It is "all about power," or "money is the meaning of life," or "everything is a deal," are the most recent forms of this so-called worldly wisdom.
The court systems of some states -- like New Jersey -- are riddled with corruption and possibly controlled by organized crime. Reform is said to be worthless. Corporations are "known" to control the politicians that control the country. And the American population is said to be stupefied by the mass media. I am told that America is a lost cause. ("What is Law?")
I refuse to believe this about the United States of America.
I will always continue to hope that things can be made better and to believe that the United States, with all its faults, is and will continue to be the greatest society in the world.
Despite my experience of torture in New Jersey and the apathy of public officials to daily censorship and harassment efforts directed against me I continue to believe in the Constitution's guarantee of the dignity of every person in the land and in the world:
"Another mode of empowerment consists in our relative success," Roberto Unger comments, "at diminishing the conflict between the need to participate in social life for the sake of material, emotional, and cognitive sustenance and the impulse to avoid subjection to other people."
We are divided by an instinctive need for community and the temptation to reject communal pressures to "conform" and sacrifice individuality.
Community is always possible, I believe, and so is freedom. We insist on both. America, like Modernity, is a project that is still "underway."
The American experiment (like all of us) is gloriously "unfinished."
It is with regard to this Romantic aspect of the American political "adventure" that today's young people's movements for liberation from all over the world -- including Latin America -- can find sustenance in American culture, especially cinematic and popular culture.
If something were to happen to me -- if I die from an accident or some other cause -- this essay is the one that I wish to have read at my funeral because I am not the only American to put his or her life on the line today for these ideas:
"The present production apparatus is therefore, on the one hand, a gigantic machine for psychic and physical mobilization, for sucking the energy of humans that have become superflous, and, on the other hand, a sorting machine" -- like the Sorting Hat at Hogwarts? -- "that allocates survival to compliant subjectivities and rejects all 'problem individuals,' [like Mr. Jefferson?] all those who embody another use of life and, in this way, resist the machine. On the one hand, ghosts are brought to life, and on the other, the living are left to die. This is the properly political function of the contemporary production apparatus."
The Coming Insurrection, p. 51.
Today's popular "despair" is only from the point of view of the ideology that we are rejecting as a betrayal of America's and Modernity's revolutionary creed.
The original American ambition was (and must still be) to make room for differences, uniqueness, creativity, for persons with inviolable dignity coming together to define themselves against even the power of government.
The Constitution is resistance to the machine.
The Constitution is an organic entity, a living document for a changing (or evolving) society of free men and women of all races, ethnicities, religious beliefs or lack of theological beliefs, genders and sexual-orientations.
America was made by and for the free subjects that emerged with Modernity, no longer fettered to class systems, landed gentries, prescribed social roles, or "preordained" eternal destinies.
Postmodernist efforts to shirk off binding gender roles or racial identities and class systems fit right in with this revolutionary project of self-invention for a free people in a new world.
America's revolutionary theory of free and equal men and women served by (not the slaves of) government is more alive and necessary today than ever before.
Hostile perceptions of Americans are often based on definitions created by others and not ourselves. The American mythology of "the little guy or gal" against the system is nearly religious in its invocation of our Constitutional values to uphold the dignity of dissenters, individualists, eccentrics or those with unpopular opinions, rebels with or without a cause.
What a wonderful opportunity we have, right now, to bring the American revolution a little closer to completion. This is our first "invitation" in the new century to define ourselves to the world as a free people who are respectful of human rights. Thus far, we have not done a very good job in that task of self-definition.
My view of politics involves a fundamental commitment to the objectives of the unfinished American and also English revolutions -- my revolution is one that I yearn to see brought a little closer to successful completion. (For one source of my position, see Gore Vidal's essay "The Second American Revolution.")
What is the unfinished American Revolution?
In the hot summer of 1787, in Philadelphia, a group of revolutionaries initiated a struggle for human rights that was and remains profoundly radical -- much more radical and worthwhile, I suggest, than many of the revolutions that have been fought since.
These original American revolutionaries fought for ordinary persons (yes, I know that they were wealthy men, but bear with me) to be secure against the power of the State in speech and expression, in worship or in the decision not to worship, in assembly and in the choice of political structures as well as in the guarantee of democratic representation within the institutions of government, whatever the institutions of government might be in their respective states. Elected officials in America once represented ordinary people and not just corporations or organized crime. ("Does Senator Menendez Have Mafia Friends?" and "Senator Bob, the Babe, and the Big Bucks.")
All of the critical biographies and demythologizing histories of the period have failed to destroy these simple historical claims. This first Modern revolution was intended to guarantee "the rule of law and not of kings." The American revolution was, and always will be -- in its best self-understanding -- a true people's revolution.
The antithesis of the values of this American revolution is Star Chamber-like secrecy that shelters the torture of citizens and/or public censorship whatever rationale may be offered for such crimes combined with public lies and denials. ("Is truth dead?")
Americans are not "objects" subject to the desires or commands of powerful officials acting secretly upon their lives.
Americans are free persons with a moral and political dignity that must be respected by tribunals because it is protected by law. ("Is there a gay marriage right?")
The American revolution was fought in the belief that all human beings are entitled to freedom and equality. Admittedly, the framers understood the concepts of "human beings" and "citizens" in terms of white males only.
We now see that the logic of the framers principles, correctly interpreted, clearly encompasses all persons. They believed that persons are naturally endowed with a value that, today, makes torture and enslavement, for example, anathema.
The Constitutional concept of human dignity, I believe, should also be understood to make hunger and desperate poverty unacceptable in a wealthy society. Dignity under law begins not with an abstraction, but with the concrete, suffering and afflicted human being that is my neighbor, also my brother or sister. It is to insist, in other words, that even the humblest person is not expendable in a just society.
No one in America is "collateral damage."
No human being must be seen as a pawn in a secret U.S. government chess game.
The violation of one person's fundamental rights is the violation of the rights of all. Each time a letter is removed from one of my words or any other defacements of these writings take place with the cooperation of legal officials in an American jurisdiction a section of the Constitution is shredded.
Constitutional scholars -- like Professor Kathleen Sullivan now of Stanford University -- will wish to interrupt in order to point out that the word "dignity" does not appear in the text of the document and was not a prominent feature of the Supreme Court's language until after the Second World War when the full horror of the Holocaust became apparent.
On a day when many of my essays have been vandalized, again, as I struggle against censorship, it is important to remind myself of why I must persist in this effort to be heard. It is especially sad that my articulation of fundamental American values of tolerance and diversity can be destroyed, publicly, with the cooperation of corrupt officials from one American jurisdiction because the symbolic significance of this spectacle is ominous for America's future. This symbolic meaning (America's contradictions) will not be missed in many places in the world.
My view of the task of interpretation in the context of fundamental legal documents, especially the U.S. Constitution, borrows from the tradition of hermeneutics in philosophy. At issue in construing legal language is understanding the text as a whole, as a linguistic and political-jurisprudential or philosophical project, as a message from our forefathers and -mothers to ourselves and our progeny ragardless of where we are from "originally" as Americans.
This amounts to reading abstract phrases such as "due process" or "equal protection," "liberty" or "freedom of speech," in terms of the total linguistic project of the Constitution that includes the tradition of judicial interpretations and amendments of the original text.
I ask the reader to compare Paul Brest, "The Misconceived Quest for the Original Understanding," in S. Levinson & S. Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Illinois: Northwestern University Press, 1988), pp. 69-97 with Hans Robert-Jauss, Towards an Aesthetic of Reception (Minneapolis: University of Minneapolis, 1982), pp. 139-185, translated from the German by Timothy Bahti, with an excellent introduction by Paul de Man.
The underlying debate concerning interpretive rationality and jurisprudence dates from antiquity. For example, see Hans Georg-Gadamer, The Idea of the Good in Platonic-Aristotelean Philosophy (New Haven & London: Yale University Press, 1986), pp. 7-33, translation from the German original by P. Christopher Smith. American versions of the discussion of hermeneutics that began with the Greeks and continues today are plentiful: Lloyd L. Weinreb, "Kosmos," in Natural Law and Justice (Cambridge: Harvard University Press, 1987), pp. 15-42. ("Liberty and equality are normative expressions of the conflict between freedom and cause.")
This legal-hermeneutic effort is necessarily a moral project, grounded in religious traditions, and to pretend otherwise is foolish. The basis for the assertion of an ontologically special status attaching to subjects (you and me) only makes sense in terms of the "higher law background" of the American Constitution.
This point has nothing to do with public neutrality concerning specific forms of worship or religions under the First Amendment.
Why were persons or legal subjects regarded as "special" at the dawn of Modernity?
Religious ideas concerning the spiritual essence of men and women were (and remain) foundational to these beliefs that were translated into a secular language of legality or rights.
It is up to all of us to decide what these values require today.
I am sure that these values provide a right to marriage protected by the Constitution for all Americans, including gays and lesbians. Five U.S. Supreme Court justices recently agreed with me.
Ideas of tolerance and human dignity are always controversial and endangered: Dana Cloud, "The Fight for Academic Freedom in Changing Times," International Socialist Review, May-June, 2009, p. 4 and "The Eavesdropping Continues," (Editorial) The New York Times, June 18, 2009, p. A36 then James Risen & Eric Litchtblau, "Extent of E-Mail Surveillance Renews Concerns in Congress," The New York Times, June 17, 2009, p. 1. (Out-of-control security apparatus violates civil rights of Americans long before Edward Snowden.)
This interpretive theory is the opposite of "originalism" since it views the Constitution as enacting "principles" (see Dworkin's Law's Empire) which the framers themselves may not have understood in their full implications given the contexts that might arise centuries after the writing of the text. I favor a form of "interpretivism" in Constitutional jurisprudence. Professor Lawrence Tribe of Harvard Law School explains:
"Chief Justice Marshall once wrote that we must remember that 'it is a Constitution we are expounding.' It is the grand charter of a democratic republic, the philosophical creed of a free people, and it was written in broad, even majestic language because it was written to evolve. The statesmen who wrote the Constitution meant the American experiment to endure without having to be reinvented with an endless series of explicit amendments to its basic blueprint. There is a message in the common adage 'Ours is a [government] of limited powers.' ... Thus the Constitution tells us, both implicitly and explicitly, that what it does not say must also be interpreted, understood, and applied."
God Save This Honorable Court (New York: Random House, 1985), p. 45 (emphasis added).
The silences between the grand sentences in America's organic documents are as beautiful as the sounds of any English texts, including the writings of the greatest poets. In American Constitutional Law, Professor Tribe further stated:
"Such passing finality as judicial pronouncements possess is an essential compromise between constitutional order and chaos: the Constitution is an intentionally incomplete, [emphasis added] often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices. This process cannot be the special province of any single entity." Ibid.
The American project of communal "self-becoming" must remain unfinished, for it is a cultural "space" of evolution and revolution, transformation and transcendence where every person counts and must be respected.
The U.S. Constitution creates a collective space of encounter to which ALL of humanity is invited provided that persons choose reason and language rather violence as the means of communication.
If you destroy or deny the communicative efforts of others then you are forcing them to express their anger through violence rather than peaceful and rational argumentation.
Will you seek to destroy these words? Do you believe that these words and promises can be destroyed?
I think that this message is indestructible and true.
The American Constitution enacts a "hermeneutics of freedom" as a dynamic community's challenge (primarily) to itself and (secondly) to the world.
This is the "War on Terror" that matters. Choosing reason over violence.
I argue that the struggle today is between those who dismiss what I have written here as "sentimental" and reach for their weapons against those who reason and use language to express dissent (also resistance against violence or terror, if necessary).
You are either on the side of life and shared reasoning aimed at improving things or you are for death and nothingness. There are few points between these attitudes to human conflict. However, civilization is compatible with only one of these views. Trust in reason is essential to civilized life.
I am confident that most of humanity will always prefer dialogue to mutual or indiscriminate destruction.
The principles and values to which the Constitution refers may be discovered in the text. What the principles mean or require of us, in our ever-changing contexts, is for the courts to decide on the basis of the values of this document and interpretive tradition belonging to the American people and not to any one individual or corporation.
There is no final, complete, finished or "perfect" reading of the U.S. Constitution. There should not be. Anything "finished" or "complete" is incapable of development and, therefore, dead.
Those who will dismiss these remarks by placing them with Mr. Bush's so-called "simplistic" talk of good and evil are incapable of reading the English language. There are any number of nuanced positions and understandings possible -- even with extremist adversaries -- but not with those who decline all efforts to communicate ideas in favor of violence and sabotage.
Reason and words are crucial to the project of understanding and negotiation. Those who deface and censor texts rightly fear words and reason for they must live with violence and a kind of moral squalor that defines their lives. Impatience with ideas, thoughts, words usually characterizes "terrorists" or terrorism.
Hitler's mistake is repeated by tyrants always and everywhere. Hitler's blunder was to mistake a willingness to discuss complex views for weakness (or lack of resolve) in his English and American enemies. This error by bigots and terrorists is usually lethal as it was for Sadam Hussein. I am sure that the same mistake will result in the capture or eventual death of Ossama bin Laden.
Justice Breyer's view of "active liberty" in Constitutional interpretation may be invoked as, in some ways, compatible with what I say. There are no absolute rules of interpretation, but there certainly are valid, objective principles of politics and law found in our Constitution, such as freedom of speech and religion, privacy and equal protection of the laws. The TRUTH of those principles is objective, real and universal emerging from or discovered through judicial reasoning. Nihilists will never win elections in America because, in the final analysis, they offer people (literally) "nothing" but despair. ("John Finnis and Ethical Cognitivism.")
The U.S. Supreme Court is responsible for interpreting and applying or for "following" such principles in more modest language.
When the Supreme Court gets things wrong -- as it did in Bowers v. Hardwick -- this becomes obvious quickly enough.
There can be no such thing as getting a decision wrong, however, if it is impossible to get a decision right, even absolutely right.
The Constitution is not an invitation to anarchy, jurisprudential relativism or nihilism, nor is it a "suicide pact." (Oliver Wendell Holmes.)
The Constitution is also not infinitely elastic nor without constraining meanings.
There is no contradiction between saying "we are without absolute standards of interpretation" and "truthful interpretations may emerge from objective and universal canons, internal to disciplines, canons which are absolute where they apply."
I am sure that the text and tradition of this great document serve as genuine limitations on interpretation. This is most true in terms of the total vision or architecture of the document and tradition as a whole. Furthermore, I am confident that (over time) the Court and the American people, sometimes painfully, arrive at the right answers.
We find the best solutions, eventually, to the problem of government for a free people, who are concerned to preserve social equality.
If I were to say what the U.S. Constitution means in one sentence while standing on one foot I would say:
"Freedom and equality with due process of law for everyone under a government of limited powers."
The men who framed the Constitution were sometimes slave holders and blind to the historical contradiction between their Enlightenment principles and this horrible practice. However, they were products of their times, who should be credited -- at the very least -- for recognizing and formulating those principles which provided the foundations for the legal reforms that abolished slavery, even at the cost of a bloody civil war, and that set the nation on the path towards achieving full equality among all of its citizens even if this is something which has yet to be achieved entirely.
It was these principles that served as a model for the people of the world for over two centuries concerning what was possible in self-government for free people whose fundamental rights were placed beyond the reach of powerful "bosses" or governments or priests and/or clerics of any kind.
Your rights are not a "gift" of government. "Inalienable rights" are part of what it means to be a person.
The Bill of Rights contains an outline of American legal identity for each person in this nation.
We will not give up a single one of these hard-won rights.
I fear that the U.S. is in danger of losing its exemplary political status. The American people's freedoms are threatened as never before. It is important to understand when people speak of interpreting the Constitution in accordance with the intent of the framers that the framers may have intended us to be free in our interpretations today -- free even of their own original intentions in drafting that great text.
Thomas Jefferson was skeptical of any attempt to bind future generations to the letter as opposed to the spirit of any written legal text. Jefferson likened such a notion to an adult man's attempt to wear the same jacket that he wore as a child. Jefferson suggested a "revolution" in Constitutional understanding every twenty years or so.
Benjamin Franklin was approached in Philadelphia shortly after the drafting of the U.S. Constitution and asked by a young woman:
"What have you given us, Mr. Franklin?"
"A Republic, madam ..."
Franklin smiled before walking away, according to biographers, and added:
"A Republic -- if you can keep it."
Gore Vidal, Inventing a Nation: Washington, Adams, Jefferson (New Haven & London: Yale University Press, 2003), pp. 30-31 and A.J. Langguth, Patriots: The Men Who Started the American Revolution (New York: Simon & Schuster, 1988), pp. 542-564 ("1781-1783 and Beyond").
We will keep our Republic.
Respect for rights of property is no obstacle to this counsel of compassion and charity. The framers believed that with great good fortune and privilege comes equally great responsibility.
Do we still believe in this duty to be charitable if we are fortunate? Mr. Trump?
Among the most important champions of private charity and the responsibilities of wealth in this world are members of both parties in the U.S., including President George W. Bush. Despite demonizing Bill Gates and Microsoft, for instance, it was Mr. Gates who recently donated $780 million-$1 billion to health care and education efforts in Africa as one part of his charitable contributions for the year.
Do the 1% today believe in something other than tax cuts?
Many of the advances in biotechnology made possible by the enhanced calculation capacity provided by computers are the direct result of developments at Microsoft. It is difficult to argue that the world would be better off without Mr. Gates or Microsoft, or without the information explosion and technologies that make this "blog" possible.
I am very well aware that the United States, like every other human society, has its share of offficials guilty of crimes and foreign policy decisions that are subject to moral censure. I know that there is corruption, hypocrisy and evil in every nation. No intelligent person disputes these points.
I continue to believe that American ideals of human rights as embodied in the Bill of Rights, for example, which we believe are based on the unique ontological and ethical significance of all human beings -- human beings who take precedence over and above the methods and tactics of politics, over instrumental goals, over collectivist values -- that these ideals are, essentially, the right political ideals and values.
Respect for the individual is the direction for real progress in Latin America, Africa, and elsewhere in the world, including Asia.
We must move towards recognition of human dignity and respect the freedom of every person.
Americans must not forget the miracle that is this living American Constitution that is always endangered, both from tyrants or "bosses" at home and from enemies in the world.
There are many kinds of terrorism. The tyranny of opinion by powerful and (often) ignorant political bosses is among the worst of these forms of tyranny.
If the choice is between idealism and romanticism against cynicism or nihilism -- sometimes disguised under the terms "realism" and "pragmatism" -- then the most American choice is always "for" the idealism and romanticism that is essential to this youthful nation.
Does this account for the success of Barack Obama's candidacy for the Presidency of the United States?
Democrats are in danger of forgetting that "you can't beat something with nothing." To regain the White House it will not be sufficient for Democrats to oppose Mr. Trump, but it will also be necessary to articulate values that include everyone, including Mr. Trump's supporters, who often feel betrayed and abandoned (for good reason) by trendy liberals.
The party and person embodying hopefulness or optimism about the future (over and above fear of any enemy or politician) will win U.S. elections every time.
No individual political leader, no abstract ideology, no promise of a future utopia justifies the violation of the rights of a single human being, however humble that person may be, or the abandonment of the rule of law.
The fact that a person's rights are sometimes violated by particular government officials over a period of years does not diminish the validity of these principles but provides me with the basis for criticizing such violations which can never be for the "victim's own good."
Rights trump social utility; they trump the will of tyrants and kings; they are more important than money. Rights are individual "zones of MORAL entitlement" they are not based on the will of majoritites; rather, LEGAL rights result from a recognition of the unique moral worth of persons. (For opposing views on rights see Duncan Kennedy's book cited above then Ronald Dworkin's works.)
No government, legitimately, may deprive persons of the right to life or liberty (including liberty of expression and autonomy of relationships), nor of the effort to improve the material conditions of their lives, nor of the pursuit of their own spiritual quests, however they may be understood or defined, nor of the right to love as persons see fit and whom they see fit.
For this reason -- based on the religiously-based concept of the dignity and equality of persons -- I favor gay marriage rights.
I say this as a heterosexual man who is the father of an adult woman and a husband for many years. (Again: "Is there a gay marriage right?")
Government must never interfere with a person at all without good cause and/or in denial of due process of law, NEVER in secrecy, for "unstated" paternalistic reasons, nor in violation of rights to confrontation and notice.
Government always has the power to do these things and some individuals will always be tempted to do them.
The core principles of American politics always makes violations of human rights illegitimate, criminal, and evil.
I deplore and I am outraged by the events at Abu Ghraib or Guantanamo because the tortures at Abu Ghraib involving the use of psychological techniques and physical abuse of detainees in order to extract information from them are "unamerican."
Repetition of such horrors within the United States against innocent migrants and their children is just as evil or worse. No person is a "thing" or laboratory animal to be "used" or conditioned by others for paternalistic reasons, secretly, in violation of fundamental human rights.
America's Constitution does not contain a charter of trendy "politically correct" platitudes, but it does adopt into law fundamental and open-ended principles of adjudication (or government) that, when read together, place the dignity of "the" individual (however humble that person may be) above the power of the State.
Government exists to serve citizens.
Citizens do not exist as the property of government.
Persons can not be dismissed as "collateral damage" when injured by officials.
Human rights are at the heart of the Constitution. Some politicians have difficulty grasping this point:
"It is better that a thousand guilty men go free than a single innocent person be convicted falsely."
These ideas are both more threatened and more needed now than ever before in parts of the developing world but also in the nations where they originated. This is not dreamy idealism. It is not Utopian. This is not impractical.
Vigilance is always necessary to ensure that fundamental civil rights are preserved. Clarence Darrow said that concern for the individual is also "social":
"You can only protect your liberties in this world by protecting the other [person's] freedom. You can only be free if I am free."
As events in Iran and elsewhere have taught us universal principles are always timely and radical. In the words of the Cuban poet and statesman Jose Marti:
"Like bone to the human body, and the axle to the wheel, and the song to the bird, and air to the wing, thus is LIBERTY the essence of life. Whatever is done without it is imperfect."
Marti's comments concerning freedom were offered in recognition and celebration of the United States of America's political achievement which (again) is always threatened.
We also must not forget that the pre-conditions of liberty are social. They require a concern for the basic material conditions of persons' lives, so that freedom may be meaningful both for the poorest as well as the wealthiest persons in a community. To be a free person is to accept responsibility to fight for that freedom every day. Moreover, it is also to accept responsibility for the freedom of our suffering neighbors.
To be a free person, man or woman, is to be a revolutionary in a world filled with political oppression and social injustice.
Freedom requires and must be balanced against equality in every nation. It is that balance that the U.S. Constitution seeks to achieve in an ever-shifting and dynamic rather than static way.
To assert these claims of right is to find oneself dismissed as a dreamer or a fool and to have these beliefs regarded, in Duncan Kennedy's phrase from a different context, as no more credible than "a child's tortured dream."
I am sure that these assertions of human dignity remain true. They remain worth dying for in a world that is often experienced, especially by affluent young people today (as much or more than the poor!) as empty of value and without meaning. ("Whatever.)
It is not "all relative." "Might does not make right." It is not enough of a response to the reality of evil and suffering for so many people in the world to say: "whatever." There are values and meanings worth struggling for. True values make great demands of us which we must be willing to satisfy. There are genuine meanings and values "out there," but they are not easy values and meanings, only true ones. For me, these values begin with a concern for the humanity of others and the avoidance of cruelty, including a visceral opposition to economic cruelty and psychological torments and torture.
How do we live with the knowledge that at least 25,000 people in the world will die of hunger today?
Richard Rorty -- despite his skepticism about the concept of "human nature" -- writes:
"The traditional way of spelling out what we mean by human solidarity is to say that there is something within each of us -- our essential humanity -- which resonates to the presence of this same thing in other human beings."
These values and meanings are not "unrealistic." We alone decide what is realistic. They are not mere possibilities for a distant future. We ordinary persons re-make the world every day.
We are in need of a William Wordsworth to assure us that "bliss is it in [this] dawn to be alive ... but to be young [is] very heaven."
Americans believe (believed?) that others in the world can make this choice to live and fight for the future with us.
Now young people seem to feel that things will be worse for them than they were for their parents. Optimism has faded. Apathy too often is the dominant emotion. Nihilism has replaced commitment to the Constitution or to anything else.
The Constitution is always new because it is always true. Like all revolutionary manifestos or creeds America's fundamental law is future-oriented, optimistic, filled with ideals and hopeful about humanity's prospects for self-correction.
I wish there were some way to convey this truth and passion immediately to the bored, alienated, and listless young people I sometimes encounter in college campuses in the U.S. or on the Internet. I hope that they will understand that every generation lives in a "revolutionary age" and theirs (your generation) is no exception. If you are a university student or young person in the U.S. today then think of Wordsworth's poetry as a message to you to fight the evil represented by terrorism and by Abu Ghraib, over there and right here at home.
The struggle called for in America's Constitution is for the freedom that is compatible with equality for others including (especially) the least fortunate and most powerless persons in the world.
The postmodernist turn in culture (more inclusion not anti-humanism) is, arguably, the realization of promises and hopes found in the American Constitution that have to do with respect for difference (freedom) and compassion for those who suffer (equality).
At the dawn of a new century and millennium everything is possible again, believe it, because politics is being reinvented -- precisely so that everything will be new again, so that we may hope once more, recreating American society in order to "keep" our republic as the "property" of everyone in this country committed to citizenship and community.
Postmodernist thinking in theology and jurisprudence (Ricoeur and Unger) has allowed for renewal of ideas of narrative, self, and reasoned argument that take account of the acid-like critiques of the French Nietzscheans and others while seeking to transcend and overcome such critiques in a new secular or religious humanism.
We can be "Moderns" today by hoping and working for things to be better tomorrow.
Five Freedoms of a New Age.
What are the challenges facing a new generation of American revolutionaries?
There are at least five particularly worrisome challenges for all of us -- challenges that merit special consideration along with an immediate response:
1. Terrorism
2. Torture
3. Ignorance
4. Dehumanization
5. Poverty
1. Terrorism.
"Terrorism is the intentional use of, or threat to use, violence [including psychological pressure associated with the threat of violence] against civilians or against civilian targets in order to attain political aims." (Boaz Ganor.)
Nothing justifies the use of this tactic, including the sense that many persons have in many places in the world of hopelessness, of being ignored by the wealthy and powerful nations and peoples. The suffering of people should not be ignored and must be subject to redress through peaceful means. Nothing entitles a person to take revenge upon others because of their membership in a class, race, or ethnicity. No ethnic, racial, religious group or nation has an exclusive claim on moral virtue nor a sanction to injure others even if they are seen as somehow, by their mere existence, threatening American security. Even in our anger we must recall that there are no "generic" persons.
The interest of the developed world, and of all of us, in ensuring the existence of democratic and juridical institutions -- at the international level -- that actually function effectively, or at all, to respond to the grievances of the poorest nations and persons is simply the interest in avoiding future terrorism.
The international community must either address the concerns of the "wretched of earth" in a forum where these grievances and arguments are expressed peacefully, heard and responded to with seriousness and attention as well as concern, or we -- all of us -- are likely to face more incidents like the 9/11 attacks.
Dr. King struggled with these issues and expressed eloquently his passion for justice:
"Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to [African-Americans and all of us]. ... Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice?"
The angry and injured people of the world will reach for either a gun or a pen. I am suggesting that it is in the interests of all parties to make it clear that the pen will be the more effective instrument for redressing social injustices and righting wrongs. This is all the more true when, instead of a pen, the would-be revolutionary reaches for his or her computer keyboard, or a movie camera, for that matter, or a paintbrush, maybe even a basketball.
What does it say about America that these thoughts have been subjected to suppression, censorship and destruction? Are we still faithful to our Constitutional commitments? Can other countries in the world believe that our pronouncements of tolerance and freedom of speech are sincere?
I cannot blame Cubans (and others) for regarding America's public defense of freedom of speech today, much too often, as a lie and a betrayal of America's own fundamental principles of tolerance and protected free expression which, if respected, will always make us the greatest nation on earth.
Having said this it should also be clear that nothing justifies the 9/11 attacks and/or the murder of children anywhere. Those responsible for such actions, together with the States that sanction and promote such tactics -- or wink at them, as New Jersey does, and lie about having done so -- must pay a heavy price for complicity in atrocity.
I am sure that persons of good faith in the Middle East, including concerned officials in Syria, will agree with this principle. No more robot-bombs. No more suicide bombers.
The global community may still come together to stop international terrorism in the interests of global civilization. The one thing which no one must reach for is that gun or a bomb to place in an airplane. Responsible officials from the Cuban-American community must agree on this point. The real reason for killing innocent people in an airplane is that some sick people enjoy the surge of power that comes with such horrible acts. Whoever commits a terrorist action and for any reason is guilty of great evil. Such crimes cannot be tolerated anywhere in the world. They must not be tolerated in the United States of America. ("American Hypocrisy and Luis Posada Carriles.")
Terror is not compatible with civilization nor with scientific and technological achievement, nor with commercial and artistic progress; terror is not compatible with the feeding and clothing of persons, nor with the care of the sick and dying. It is everyone's responsibility to promote civilization, to feed and clothe the poor, to care for the sick and dying. Hence, terror will not be permitted to prevent the international community from striving to accomplish these humanitarian objectives.
You will certainly not terrorize, threaten, or torture me into giving up my free speech rights which is something that New Jersey officials and lawyers are still trying to accomplish.
There is too much that needs to be done in the world on the basis of cooperation and trust for a few homicidal extremists to be allowed to frustrate and obstruct global humanitarian efforts. Even the humblest and least significant persons, like me, can contribute in some ways to such efforts, if only by arguing for them at every possible opportunity, in every forum. Those who delight in ridiculing such hopefulness and all forms of social meliorism will always remain only cynical observers irrelevant to the administration of law and politics.
Ad hominem insults directed at me are only attempts to avoid the truths confronting you, New Jersey, truths symbolized by the Statue of Liberty or the Lincoln Memorial.
To express what we all know to be true is not "pointless."
We have reached a moment when persons are more concerned to avoid being seen as naive by articulating ideal moral truths than to be regarded as shrewd by voicing fashionably cynical opinions.
If ever moral truths were needed, then it is now; if ever it were necessary to say these things, then it is necessary to do so now. Please feel free to consider me an "idealist" on these issues.
2. Torture.
"Torture is deliberately causing severe suffering, whether physical or mental, to another human being for the sake of causing such suffering or for pleasure" or for any other reason, such as to gather information for the State or to control "unruly" intellectuals.
The use of torture as an instrument of State policy is condemned everywhere. Yet it continues to be used by most, if not all, nations in the world. This sometimes means physical torture: beatings, maimings, blindings and similar horrors. More often, these days, it means psychological torture: the use of hypnosis, drugging, sensory and other deprivations, the entire behaviorist arsenal, in order to circumvent conscious mechanisms of defense and reach the subconscious mind.
Sexual violations are very useful for these purposes. Frustrations and anxiety are excellent weapons in the arsenal of psychological torturers. Hence, the "errors" inserted and corrected in my writings on a daily basis. ("What is it like to be tortured?" and "Psychological Torture in the American Legal System.")
It is difficult to describe the agonies that can be inflicted on persons in such a state of mental helplessness -- agonies of self-doubt and torment, fear of harm to loved ones, humiliation, frustration, rape and far worse, can only be called unspeakable. Those who have experienced such terrors are scarred for life, but they can also emerge from such experiences both more integrated, harder than steel, and more firmly committed to their struggles -- also more compassionate -- as in the case of a great inspirational leader like President Nelson Mandela. Please see: John Miller, Aaron Kenedi, eds., Revolution: Faces of Change (New York: Thunder's Mouth Press, 2000) and Mary Joe Frug, Postmodern Legal Feminism (New York & London: Routledge, 1992).
Any nation or people indifferent to such torments or tolerant of them, despite public denials and protests, has become a lie, as I say, that will be seen as such by the world.
I will not accept that America's Constitution has become a lie.
We must fight for that Constitution to remain a reality.
Article 5 of the Universal Declaration of Human Rights, which is based on the American Constitution and French Declaration of the Rights of Man (or persons) and other similar documents, states unequivocably:
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
The United States Constitution, Amendment VIII, similarly prohibits "cruel and unusual" punishments.
All persons accused of wrongdoing are entitled to judgment by way of a fair legal process and an opportunity at a meaningful legal defense.
Secrecy and cover-ups are the enemies of legality and justice. Victims of such "secret" proceedings insist as I do:
"Tell us the truth about what has been done to us and by whom it was done, so that we may confront torturers with the moral consequences of their actions."
There is no nation or faction in the world that will admit to engaging in such practices of torture and censorship.
Most powerful entities do make use of such tactics. The result of these methods is to reduce human beings to the status of objects, "things" or "chattle" intended to serve purposes that are not their own. Torture is a reversal of the Kantian injunction, leading to the treatment of persons as "means" and not as "ends."
I am not and will not become a "means" to the undisclosed ends of others including any and all governments.
I am not a slave.
I am not a laboratory animal.
In the United States, as with any other society, there is no guarantee that individuals will refrain from such acts, but there is a guarantee under the American Constitution and legal tradition that those who can be shown to have done such things will be punished in accordance with the law.
If it is true that "America is sometimes a disappointment," as I once heard a debater express it, "then this is only because America is a hope."
I refuse to believe that torture will ever be (or will remain for long) a matter of policy in the United States of America.
I can not agree that torture will be regarded with indifference by those entrusted with responsibility for protecting the rights of all citizens. The American -- and also the global "rights" revolution -- will not be complete until such methods of torture and censorship are no longer used by anyone, not against any human being, not in any country.
"Waterboarding" will not make us safer.
The obstruction of my television signal will not change my mind on this matter.
I hope that New Jersey's Supreme Court is capable of grasping this point.
If American Constitutional principles are only a hope (I believe that they are an actuality), then they are my hope and no one will take them from me, or ridicule them to me, or prevent me from fighting so that they will be more than a hope in as many cases as possible, for as many persons as possible, in as many parts of the world as possible.
3. Ignorance.
In a world that is becoming increasingly complex and subject to technological innovation scientific training and sophistication become precious commodities:
Ignorance is a "deprivation of education or knowledge" that leaves a person in a condition of unawareness, undeveloped, intellectually immature and incapacitated for meaningful participation in the cultural, intellectual and political life of his or her society.
Ignorance is a terrible injury or harm suffered by billions of persons who are unjustly denied even basic education or literacy and also necessary scientific knowledge for the twenty-first century.
Article 26 of the Universal Declaration of Human Rights provides:
"Everyone has the right to an education. ... Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, ..."
For the United States of America to walk away from the United Nations Commission on Human Rights is a terrible blunder that harms everyone.
I fervently hope that the Trump administration will reconsider the decision to abandon America's commitment to international human rights laws.
I believe that the "liberty" interest protected in the Fourteenth Amendment of the U.S. Constitution -- together with "equal protection" under the Fifth and Fourteenth Amendments -- mandate a societal commitment to enhancing educational opportunities, especially for the African-American community which is still coping with the legacy of slavery, but also for every person in the nation.
The availability of university education for African-Americans must be seen as a national moral obligation.
It is the absence of education that often leads to problems of international crime as well as complicity by nationalist groups in ethnic and racial hatreds.
Education is the ultimate reparation for slavery. ("Freedom for Mumia Abu-Jamal.")
4. Dehumanization.
The dissemination of commodities and media images all over the world has created a situation in which persons are often identified with reified categories of objects or fantasy images. ("'Westworld': A Review of the TV Series.")
The worth and dignity of persons is made dependent upon the market value of the "things" that they own or their capacity to resemble media icons which designate (or "code") membership in one class rather than another.
Media "icons" are often generated and controlled by only a few persons, in a few centers of cultural power, located in a tiny number of enclaves within the wealthiest countries.
This lack of balance in the production of media imagery (or books) deprives entire populations of their voices, of their ability to communicate, of the legitimacy of their experiences and stories, of their forms of beauty, which may not resemble the images generated by the major "media-makers," with the result that these forms of beauty may be devalued and delegitimated.
The solution is not to censor or silence the makers of media images in the developed world, but to facilitate -- through new partnerships that are mutually profitable and educational -- the expressions of all persons in the global community.
I recently examined magazines and newspapers in a bookstore and found it impossible to discover a single Latino name on the cover of the most prominent magazines and newspapers in the United States of America.
Latinos (Muslims?) who are permitted to appear in such publications are lap dogs of political figures and anything but journalists or writers.
No wonder newspapers are losing readers.
All persons and cultures have an interest in self-expression.
World media centers should be created so that the plural images of beauty and the many mythic meanings created and shared by the human family, in all of its diversity, will find outlets and mechanisms of articulation as opposed to only those of a privileged few located in the wealthiest nations on the planet. This pluralism will enrich all of us, and not only in material ways.
5. Poverty.
Billions of persons in the world are burdened with grinding poverty that has the effect of denying them the fundamental dignity to which every person is entitled by virtue of his or her humanity and negating the meaningfulness of their right to freedom as a result of grotesque inequality. ("Innumerate Ethics.")
Article 25 of the Universal Declaration of Human Rights states:
"Everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood ..."
No one should be permitted to starve to death as tons of food are wasted.
No one should be denied access to health care because of a lack of ability to pay large sums of money for such services.
No one should be denied access to education through the university level exclusively on the basis of economic status or race.
Some of the great disproportion in wealth in the world should be redirected, voluntarily, to alleviate dreadful conditions unnecessarily burdening the lives of billions of persons.
It is incumbent on the wealthiest nations to contribute to redressing the balance in as "reasonable" a degree as possible on behalf of the poorest nations.
"Redressing of the balance" may be done through international mechanisms, or privately, as the United States -- which is the world's largest donor nation -- is currently seeking to do in the Sudan and elsewhere in Africa, Asia, and in the world generally.
Mr. Trump has made America far less generous and more greedy in controlling global resources.
American charitable efforts rarely receive the publicity that they deserve. They are as important as any other aspect of American foreign policy. Responsibility for wealth-sharing must also be accepted by more of the wealthiest nations.
All of these basic rights-claims are feasible.
They are not far-fetched.
It is possible for us to achieve these things within our lifetimes if we really wish to see these goals achieved.
The founding ethical principle (for me) is not an abstraction or a future Utopia, but a focus on the specific individuals that we know and with whom we interact every day, like the person on the bus or commuter train who asks for spare change, or the person we see sleeping on a park bench, or the child extending an open hand to us on the street.
We must recognize ourselves in the faces of all suffering human beings.
This recognition is the essence of the religious insight found in Judaism, Christianity, Islam and all of the great religions of the world.
Identification with others is one lesson derived from the scientific account of the common origins of the human species. ("Drawing Room Comedy: A Philosophical Essay in the Form of a Film Script.")
"A Specter is Haunting the World."
The first edition of "The Communist Manifesto" appeared in Germany in 1872. In concluding that pamphlet Marx and Engels said:
"We shall have an association in which the free development of each is the condition for the free development of all."
From our perspective more than a century later, the crucial word in that sentence is "FREE."
The freedom and rights or the moral and legal dignity of every person must come before the grandest plans of States or collectivities of all sorts, especially the right of persons to security and to their creative development.
Nearly a century before Marx and Engels Thomas Paine -- who was both an Englishman and an American revolutionary -- spoke of the human need for liberty and the unwillingness of individuals in any society to give up on their yearning for it:
"Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph."
In the final analysis it is that fundamental freedom to struggle for a better world (or revolutionary impulse) that is a person's kernel of humanity whose protection is the purpose of a legal system. ("A Commencement Address by Secretary of State Hillary Rodham-Clinton.")
Viktor Frankl wrote of his experience in a Nazi concentration camp:
"We who lived in concentration camps can remember the men who walked through the huts comforting others, giving away their last piece of bread. They may have been few in number, but they offer sufficient proof that everything can be taken from a man [or woman] but one thing: the last of human freedoms -- [freedom] to choose one's attitude in any given set of circumstances -- to choose one's own way."
Our "interpretive" freedom that is concerned with meanings is indestructible and irremovable from our lives.
This indestructibility of freedom is more true than ever in an age of images and spectacle when the ultimate responsibility to decide on truth and value rests with us.
The films we see, books we read, societies we create must belong to all of us as equal recipients of the greatness we inherit and to which we must contribute for the sake of our children.
The increasingly global rights revolution that, I believe, is expressive of the deepest values of the United States of America as expressed in the U.S. Constitution will be complete only when no one is deprived of the right to choose his or her own "meanings" in life and has an equal chance to acquire the tools with which to do so.
The American Revolution will be fully "successful" or complete only when each of us can count on the support of our neighbors in seeking self-realization through love in a community of equal citizens.
This ultimate individual and communal "self-realization" is what Thomas Jefferson meant by "happiness" in the Declaration of Independence.
