Perhaps the most significant sentence I’ve encountered in my 67 years is Justice Anthony Kennedy’s assertion that the issuance of a permit by a government agent is “not a matter of grace.” By that he means, if I’ve understood his definition of the rule of law correctly, that the tasks assigned to the agents of government aren’t to be performed at their discretion. If the agents of government are given the authority to issue permits for actions, which the community has determined require particular expertise (like knowing how to drive an automotive vehicle) or a special condition (like dumping waste that doesn’t cause excessive contamination), then, once the requirements or conditions have been satisfied, there’s a duty to issue the permit.
The predicate for this finding is two-fold: it presumes that every person is, by default, free to act and that, if restrictions need to be imposed, there has to be some greater public purpose that is served; and it presumes that the agents of government, who are tasked with carrying out the laws/directives agreed to by we the people, will honor the limits and responsibilities imposed on them by the law.
We’ve heard a lot about limited government in the last three decades, but the proponents of limited government don’t seem to share Justice Kennedy’s perspective. Rather, perhaps because they see government as a separate and coercive force, what they want is to reduce both responsibilities and functions in hopes of channeling the coercive forces towards just a small segment of the population that doesn’t include them. Indeed, since the proponents of a government that’s limited to the use of force don’t perceive themselves to be a target, they’re actually quite content for the level of that force to be unlimited. As a consequence of which we’ve witnessed our basic human rights being ever more restricted by rules and regulations that have no practical justification.
Part and parcel of the perception of government as a coercive force is the widespread belief that individual rights are derived from the government and “guaranteed” by the Constitution, as if they were some sort of reward for complying with government directives. Which isn’t what the Constitution is about at all. The Constitution is quite clear that every person has rights by virtue of being human and is entitled to have those rights protected. And that happens by imposing strict limit on those to whom we delegate the use of force and by insisting that their obligations are carried out.
I like to compare the Constitutional limitations to the muzzle on a guard dog. People are protected from being bitten by making sure the dog can’t bite. Similarly, the Constitution outlines duties and enumerates some actions that the agents of government may not engage in, absent really extraordinary conditions. So, in a sense, the Constitution “protects” individual rights, but it doesn’t define them and certainly doesn’t grant them, regardless of how many pundits, for example, natter on about “giving” homosexuals rights people with other sexual attractions don’t enjoy.
Permits to marry are actually a good example of Kennedy’s point. People are entitled to engage in intimate relationships and the imposition of a requirement that notice of such a relationship be provided to the public via a license merely serves as a matter of public convenience–i.e. it is better for the public to know who’s connected and responsible to whom, than not. So, if the notification has been properly provided, the license cannot be denied. That this principle hasn’t been recognized in every state doesn’t change its validity.
If people are entitled, by virtue of being human, to life, liberty and the pursuit of happiness, then it would seem to follow that, since it is necessary to eat in order to sustain life, that all people are entitled to eat. That is, there can be no conditions placed on whether they eat. Or, to put it another way, the assertion that “there is no free lunch” is invalid. Lunch (and breakfast and dinner where it’s the custom to eat three times a day) is an entitlement; not something that has to be earned. Which, of course, sets the stage for a fundamental conflict. How can people be coerced to do other people’s bidding, if depriving them of sustenance can’t be used as a threat?
This is a very important issue for conservatives. Because the ability to direct the behavior of others by providing or threatening to withhold the necessities of life is precisely what they want to conserve. The conservative social hierarchy is essentially coercive, rather than being an expression of individual talent, wisdom or even simple longevity. Indeed, one might even argue that the coercive hierarchy, one that’s based on the threat of physical deprivation and/or punishment, is the refuge of people lacking in the physical and intellectual capacities to sustain themselves on their own.
So, why do we indulge them? Why do humans put up with incompetents and sustain them in their fantasies? Is it because we find them amusing? The PBS production of the biography of John Adams includes a segment in which the newly minted Ambassador to England presents himself to King George and the latter expresses the hope that the people of the United States won’t come to miss having a king–i.e. a figurehead who exhibits a certain amount of frivolous pageantry. At present, the United States is beset by a frivolous and incompetent president. If he were a king, we might be less likely to forget that the incompetence should be laid at the feet of a whole host of others.
Why do we accept incompetence?