When we realize that “rights” are not self-evident, but achieve their self-evidence within some framework that makes them intelligible and persuasive, we naturally have a burden to explain what our foundational assumptions are and why. The mistake of the early moderns, from Locke to Jefferson, is to assume that are rights are transparent to reason. In this chapter, I suggest that it is really the concept of “equality” rather than “rights” that is distinctive about our modern view.
If the concept of natural rights provides an ambiguous foundation from which to guide society, then from what moral foundation should we begin? Is it not the case that any starting point for our moral convictions is inevitably and ultimately contestable? Isn’t it true that there is no way to find a starting point for the creation of society or a political system that is not ultimately doubted by some individuals or groups? Yes. All of this is true. And that is the point.
If society can never achieve 100 percent unanimity on what its core and founding convictions are, then every society is invariably imposing some founding framework or vision on minorities who don’t agree. To find this repression at the heart of any democratic institution is a startling insight when one thinks about it. It means that by nature, any society with a rule of law has an act of repression against some minorities who don’t agree with the majorities on either the vision of truth or the specific laws. Of course, compared to systems that lodged absolute power in the divine royal right, a reliance on a majority or supermajority rule gives a much greater number of people much more say, at least theoretically, over the institutions in which they live. Still, it is important to realize that on every issue and law, some minority of people will not agree, though the nature of the repressed minority may vary depending on the particular issue and the law. The repressed minority may be people of a certain gender, color, religion, or class. But anyone with a divergent view from the majority is in a way a repressed minority, though many repressed minorities we don’t fi nd morally significant; for example, those who want to drive a tank or drive faster than sixty miles an hour could be a repressed minority too.1 Thus we are always drawing lines in our laws between those minorities whose interests we ignore and those whose interests we want to protect. The key point is that any point of view that is institutionalized with power represents an act of repression on some minority who doesn’t agree.
Let’s face it. There is only one truth upon which we can all agree: to argue and disagree is part of the nature of the human being. To live together in societies requires that we don’t all agree and that some people’s views come to win over other people’s views. It is this willingness in fact to “win some and lose some” that comes to characterize life in democratic societies. At stake first, then, is the question of which founding principles and vision should frame the to-and-fro of social life and how the assumptions that define our collective life should change and evolve.
Second, we must consider whether there are cases in which the rule by majority or supermajority is not acceptable and situations in which certain kinds of minorities should be protected. By what criteria do we distinguish those moral situations in which majorities should not be allowed to repress minorities from those in which they may? Even in the founding of America, which is one of the clearest examples of a country founded on a social contract, there was still fundamental debate and disagreement on many key principles.
The Declaration of Independence, the document that now enshrines the American collective philosophy and vision, actually papers over differences and doubts about the source and validity of natural rights as well as the legitimate right of Americans to the lands they possessed.2 The same is true of the US Constitution, which was drafted in secret over a period of four months in 1787 by a group of delegates sent from the various states to ponder the weaknesses of the then existing Articles of Confederation. Their discussion was fraught with debate over how government should be structured and where and how power was to be lodged and balanced, especially between the states and the national government, but also across economic lines, among states of different sizes, and between those with agricultural versus commercial interests. If rights were transparent and clear, there would have been no need for debate.
In the end, nearly every delegate had compromised on some strongly held position, and not all the delegates to the convention were willing to sign and endorse the final compromise, including noteworthy individuals such as George Mason, Edmund Randolph of Virginia, and Elbridge Gerry of Massachusetts.3 The subsequent ratification of the Constitution was itself hotly contested in the states, anticipating the emerging development of the Republican and Federalist political parties, which held fundamentally differing views of federal and state power, liberty, international relations, and a host of other substantive positions.4 The Constitution was hardly a document that achieved unanimous assent or had a single meaning, even from the start.5 And as soon as the Constitution was ratified, Federalist and Republican parties emerged that debated its very meaning, a debate that obviously continues today.
The claim among some that we need to revert to the “lost constitution” is thus sheer nonsense, since there was never a single understanding of what the original constitution meant.6 So even in the formation of the United States, there were winners and losers in the formation of the founding document and in its interpretation. The notion that there was a single, clear, univocal meaning of the founding principles of American life is wrong.7
To read more of Chapter 5, you can download:We_Hold_Equality_Self-Evient_Chap_5