Terrell Carver
University of Bristol, UK
In
“Faisal Shazhad and The Right (not) to Have Rights” Sam Chambers has done an excellent job of deconstructing the current discourse about citizenship and rights, in particular so-called Miranda rights, and the outrageous proposals to revoke these in cases of suspected terrorism by revocation of US citizenship. His conclusion, that this presupposes a “right not to have rights” (an inversion of Hannah Arendt’s “right to have rights”), follows nicely from the presuppositions of the discourses involved. While it is politically important to speak to people in terms that are familiar, and ones that they (think they) understand, there is also room here – so I venture to say – for critique, looking back to first principles.
This is exactly what I aim to do, not least because current discourse seems to me to be fundamentally off-track. I am not sure where and when it went awry, but I think that it was sometime within living memory, and it surprises me that – given what I thought was the strength of the American legal system (and certainly the overwhelming number of resident lawyers) – this has happened. If anyone can shed any light on this for me (and I should say here I am an American citizen myself), I would be very grateful. Or indeed, if anyone would like to dispute the logic outlined below, or its relationship to liberal democratic or specifically American jurisprudence, I would also be very interested to hear.
I am not at all sure that a “right to have rights” is a good place to start, or that anyone besides Arendt would really choose to start there, given that it is a bit of a riddle (doubtless she had her reasons). I would start – in the present context – with the American Declaration of Independence of July 4th, 1776:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...
The passage above, and many other passages in this document, look back almost verbatim to John Locke’s Two Treatises of Government of 1689, in particular the Second Treatise, which was notably re-published in Boston in 1773. In a very Lockean way the opening of the Declaration balances reason and revelation, so whether you take these rights to be divine gift, or simply self-evident to reason as attributes of what-it-is-to-be-human, you’re there. We just have these rights. My first point is therefore that it is an error in terms of the history of liberal democracy to see these rights as granted by anyone (human anyway) and in particular by government, or even by a constitutional bill of rights.
Indeed the whole point of the Second Treatise is to argue that government (or in particular, governors) have no right to govern unless and until individuals choose to assign that right (on certain conditions) to others, and indeed – as Locke argues, and as the Declaration of Independence makes clear – individuals (as ‘the people’) can get those rights back, if and when the government rebels against them. The doctrine is crystal clear, at least in outline and at the outset: rights are not granted by government, nor by constitutions; constitutions and similar documents simply recognize and acknowledge that the rights are there already, and indeed the whole point of governments is to respect and secure those rights, not to “grant” them.
The US Constitution, and its Bill of Rights, and subsequent relevant amendments, do not “grant” fundamental rights. That is why the rights are fundamental. As it says in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Bill of Rights thus recognizes and reiterates what is the case, namely that individuals already have rights – or rather it does so when it is not actively taking (presumed) rights away – from the government.
This reverse logic is also supremely Lockean: the Second Treatise is a tract not for setting out a “social contract” as such, but for attacking – root and branch, tooth and nail –the conflation of government with absolute and arbitrary power, and the arrogation of any notion of right(s) to this foul view. The “social contract” passages in Locke are not first principles; they are a dramatization of the equality that Locke states at the outset as holding amongst all individuals, namely that no adult person has any right to govern another, rather the opposite: all have an equal right to govern themselves within God’s/moral law. Thus all have an equal right to punish offenders against it. This neatly conflates government with personal security, and makes it moral and rational to cede our individual sovereignty to another as governor, within strictly understood limits, namely the promotion of “the Peace, Safety, and publick good of the people” (and licensing no attacks on personal security without “due process” justifications).
Note then that the First Amendment takes a string of (supposed) rights away from Congress to do with religion, speech, the press and assembly. The Second warns Congress not to “infringe” the (pre-existing) right to keep and bear arms, and the Fourth, again, removes any (supposed) right that Congress might (wrongly) presume it had to quarter soldiers in private houses. The Fourth does not “grant” a right to be free of unreasonable search and seizure; it commands government not to violate it, on pain of inconsistency with its purposes. Amendments five through eight then spell out the rights that individuals already “enjoy” to a fair trial, knowledge of any charge against them, assistance of counsel, impartial jury, access to witnesses, and remaining silent, precisely so that governments don’t get funny ideas to the contrary (and, in contradiction to the Constitution, claim these as government rights). The Constitution is the way it is so that governments will have been (re)told what these rights are such that in extremis “the people” can complain about any violations and ultimately regain them from tyrants.
Far from “granting” rights to US citizens, the US Constitution – and also the historical process through which the terms of Locke’s tract became constitutional in many places throughout the world – works hard to remove (supposed) rights from governors who have lost the plot. It allows, to be sure, for public safety, military action and various emergency circumstances where a governmental power of “prerogative” can operate in cases of clear and present danger – but this is very fenced around, not simply by the terms of the discourse (which reiterate the self-evidence of rights) but by the purpose of the whole exercise, which is to secure for “the people” “the mutual Preservation of their Lives, Liberties and Estates, which I [Locke] call by the general Name, Property”. Or as it says in the Declaration of Independence: “... among these [unalienable Rights] are Life, Liberty and the pursuit of Happiness.”
Note that I have said nothing here about citizenship, and that the US Constitution says hardly anything about it (except for the famous clause about the Presidency and “natural born citizen,” and a few other matters), until the Fourteenth Amendment of 1868, which was introduced to deal with the civil status of former slaves. The Constitution’s view of humanity was and is interesting: “persons,” “free persons,” “all other persons,” “Indians not taxed,” and “sex” (i.e. women). Here I come to my second quarrel with the tenor of contemporary discourse, where the distinction between US citizens and “non-citizens” is deployed to create a sharp and evidently convenient point of discrimination. This distinction supposedly applies to the fundamental rights which the founding documents attribute to “the people” (wholly and severally), but mistakenly presumes that they apply to US citizens only. And it apparently follows that those who are said to be outside this “grant,” because they are non-citizens, are therefore .... [I break off here as I am reluctant to finish the sentence detailing in exactly what sort of inhuman hell non-citizens are supposed to exist]. After Guantanamo Bay, Abhu Ghraib, reported US gulags and “renditions,” not to mention drone attacks on all and sundry who have been “targeted,” maybe even “death lists,” the mind boggles as to how to complete that sentence.
Here is where we really get into the (twisted) logic of current discourse, where the argument runs from conclusion to premise: because only American citizens have rights, it follows that these have been (specially) granted to them, so it follows that others who are non-citizens can’t have those rights (in America, or anywhere that the American government feels it’s empowered in), so it follows that to revoke those rights from an American citizen requires the revocation of American citizenship, which, because it’s a grant – like all rights – is the government’s to revoke, so rightlessness is the only way to deal with terrorist (on some definitions) suspects.
It is certainly true that within American jurisdiction US citizens have some rights – of abode, for instance – that some non-citizens do not enjoy. Some non-citizens are of course legally resident aliens, though subject to deportation, which US citizens are not. Other non-citizens are not legally resident, and are also subject to deportation, but on rather less elaborated grounds, but still within due process of law. Locke’s discussion distinguishes between those who are “perfect members” of political society (through which rights are assigned to, and recoverable from, governments) and those who are not (para.119). Those who are not, are nonetheless subject to the will of the legitimate government where they happen to be. But it also the case that – though not part of “the people,” they are far from rightless. As human individuals they are subject to the same moral requirements as “perfect members” and enjoy the same rights to personal security, which is, of necessity, going to include the right not to be subject to absolute and arbitrary power. To be in that position would make them slaves, in the sense that their lives, persons and property (and happiness) would be at the mercy of another.
Locke’s notion of equality thus applies both ways: no one, prior to government, has any more right to command another than anyone else, because all have an equal right to govern and defend themselves; and no one has any less right to life, liberty and (even) property than anyone else (given Locke’s view that the state of nature prior to government includes property rights vested in an individual’s own labour). It would be a total travesty to imagine that the institution of government in Lockean terms resulted in the protection of life, liberty and property for “perfect members” only and the precise opposite for those who – passing through or otherwise – were not of that status. The Lockean government is not legitimated to be a government limited by “the people” to act in their individual and collective interests and at the same time to be an absolute and arbitrary tyrannical power over and against others who are “Men” (but not of “the people”) who are within its jurisdiction. In Locke’s scheme of things, of course, “perfect members” was unlikely to include women, servants or the poor, but on the other hand he is quite clear that Englishmen in France or vice versa (paras 9, 73), while subject to foreign laws (because they are in a foreign jurisdiction), are not by definition rightless and liable to be treated badly to the point of slavery (and instant or delayed death).
How would American citizens feel, on entering Canada, if they were held to have no rights, and to be subject to incarceration and interrogation indefinitely and merely on suspicion? How would American citizens feel if the government of Mexico declined to protect them from robbery and assault on grounds that they had no rights, and certainly no right to bring accusations in Mexican courts? Given that American drug dealers (and consumers, most of whom are presumably US citizens) are clearly posing a threat to the civil peace and personal security of many Mexican citizens and residents, perhaps the government there is contemplating drone attacks on targeted persons to “take them out”? How would Americans, citizens, resident aliens and illegal aliens alike, feel about that?
In contemporary terms I doubt that many people in the US seriously imagine that their “green card” nanny or illegal gardener have no rights to due process, fair trial, personal security, immunity from torture etc. etc., even if they have no right to vote, or could be deported (through one procedure or another). And indeed in practice, and in the history of American jurisprudence, this is exactly the case. Or at least it has been until recently.
I am not sure that the reactions (governmental and public) to 9/11 are entirely responsible for this weird construction of rights enjoyed by citizens exclusively, and rights enjoyed by everybody generally – which liberal democracies are there to promote and protect within their jurisdictions in both cases. Perhaps the most pertinent place to go to see where things went wrong (other than back to 1619 with the arrival of slaves in Virginia) is the internment of “the Japanese” in the western US in 1942, US citizens (62%, according to estimates) and non-citizens alike (over 100,000 total), merely on grounds of suspicion. Liberty, property and the pursuit of happiness were summarily taken off the menu for them, and many died, one way or another, in the harsh conditions and shame-filled hopelessness. The US government has since said “sorry” in 1988, but I feel that the lessons were not learnt.
Rights are not “granted” by governments only to be revoked, whether citizenship is revoked or not (which the courts have rightly made increasingly more difficult for governments to do). Governments have acquired the limited rights they have because rights that are held by individuals – everyone, everywhere – have been ceded by them (or at least constitutional documents say so) to create governments on condition that the rights and all their bearers are not abused, and that no governments should ever exercise absolute and arbitrary powers, and even worse, pretend that they have some “right” to do so. “A (Governmental) Right to Revoke (Fundamental) Rights” is precisely the opposite of what liberal democracy is supposed to be about.
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