12 September 2015

The Rights of Mankind; A Stream-of-Consciousness Discussion

Is America at the forefront and on the cutting edge of liberty, freedom and the Rights of Mankind? Is this powerful political Republic, for all of its little faults, truly the Home of the Brave and the Land of the Free?

And are the flag-burning, KuKluxers, Reds, Greens, neo-Nazis, God-let's-me-be-a-terrorist's, flat-earther’s, Elvis-lives folks  just wrong? Oh, of course, we should tolerate all those people, because we do have such freedom.

I wonder.

This started out as a moderate post about whether we really can preserve the Second Amendment.  My original thought was that if we do have the natural right of self defense, but that if Americans don’t have the discipline to use firearms right, maybe we no longer deserve the right.  I don’t believe it, but only an idiot will refuse to THINK about the basis of your rights.  This has been bugging me all week.

I found that there is a more basic question lurking here: Where does the concept of “rights” come from?

The Magna Carta is cited as the basis of English rights, which in turn expanded to include much of the Earth. Magna Carta came in 1215. Actually, it does not stand alone. There were at least two versions of Magna Carta, one “radical” (for the time) and one a trifle watered down. Other “charters” of various sorts – the Charter of the Forests comes to mind – followed at irregular intervals. I’m the only lawyer I know who has argued the Charter of the Forests in a Supreme Court argument. It was a wide-ranging discussion between Justice McGraw and me in State ex rel. Princeton v. Buckner, 377 S.E.2d 139.  At the time, I certainly bought into the notion that our natural rights had always been there, even though we often misinterpreted them. This is shade of St. Thomas Aquinas, that the will of God is the same, but sometime we mere humans get the wrong interpretation.   Perhaps, someday, we’ll get the absolutely right idea.

If there are natural, God-given rights, God has been singularly ignored as He tried to press them on humankind.  The established “Biblical time” roughly corresponds to the sociological establishment of human societies.  So as such, let’s say that the question of the “rights of mankind” has been significant for around 6,000 years.  The first explication of “rights” was in 1215.  What happened to the other 5200 years?

The scriptures of most religions talk about a few rights, but seem to focus mainly on duty, responsible actions, kindness, etc.  Which is fine - we’ve never  been successful at putting the “Rules to Live By” in one place.

What is the human experience with the supposed Rights of Mankind?  A dismal one, I think.

How many people have ever been free?

Egypt?  Nah.  Hey, we need volunteers to help us build the pyramids. OK, you, you and you have just volunteered.  

Athens?  It got closer, after all it had Demosthanes & Co.  Oh, but don’t get so serious about “rights” that we need to give you a brimming cup of hemlock.

Sparta?  No, not even close.

Rome?  Huh-uh.

China?  Oh, no, too many emperors and warlords.  

Japan?  Nope, the emperors and also the whole Bushido-thing.

Britain?  Too many head Druids.

Later Britain.  Think kings and Roundheads.

Actually, the American Indians got a bit closer with a sort-of meritocracy.  That didn’t do Reed-That-Bends a whole lot of good. (See Fenimore Cooper, The Last of the Mohicans.)

It really could have been Thomas Paine who was the “Father” of the Rights of Mankind.  Nobody really liked him, and he was a dour sort, but smart. Ultimately, what Thomas Paine talked about were stuck into the Bill of Rights.  The Bill of Rights is an odd thing, like something that was the product of a committee and a lot of compromises - which it was.  The glorious notions of free speech and free exercise of religion are mixed in with keeping troops from being quartered in homes in peacetime.  The freedom to escape intrusive search is mixed with property rights.  Yet, it is such an integral part of American society that you can simply say that you “take the Fifth” or “stand on your Second Amendment rights,” and people understand what you are talking about.

Where do rights come from?  What society has ever practiced respecting rights?  Who has ever had free religion?  Well, only for 250 years in a few nations, and at that it’s only been imperfectly practiced.  If for most of human history, you didn’t worship Odin, the ineffable name of God, Zeus, Jupiter, God, Allah and maybe The Force, how do you suppose that worked out for you?

If you dissed the king, the pope, the doge, the emperor, the Prophet (PBUM), the Sanhedrin, Montezuma, the Earth, the merchant class, the nobility, the priests, the brahmins, did you really think that your future was secure?

The “Rights of Mankind” are not an American thing.  The rise of the USA as a nation was the best known and least-complicated event of the Age of Enlightenment.  We had fewer nay-sayers, and they were quieter.  This “Rights” notion is assigned to America because there were a whole lot more people in the now-USA who stood to gain from it.  Great Britain did us an enormous favor by separating royalists on a different continent.

Are there “Rights of Mankind”?

Beats me.

If there is such a thing, I doubt if they are automatic, immutable, and inalienable.  Jefferson was laying claim to these “inalienable” rights, not saying that he just discovering that they already existed.  In that respect, the Declaration of Independence is a radical and beautiful departure from the past.  It’s not just an explanatory scholarly document.  The Rights of Mankind are not automatic.  If the powers of society say that they are gone, poof, they are gone.  If you don't believe that, try to carry a shotgun in England.

Self-defense?  The state/king/brigands/church sure as hell have been able to push people around without some spooky “bad thing” happening to those in power.  

Free speech?  Pull the other one.  In most places, free speech will get you an ass-whipping.

If we do have rights, they are vanishing.  We’re losing them.  They don’t have long to last.  They are vanishing back into what has existed in the 6,000 year human history - what we now call totalitarian socialism, but which has always been called “I-got-mine-and-you-don’t-so-screw-you.”  

If we keep on bleating that we are entitled to the rights of mankind, but expect someone else to assure them, we lose.

If we are unwilling to actually do something to keep them, we deserve to lose.

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