WHEN YOU THINK ABOUT IT harder than we are encouraged to, the talk about "rights" that pervades our political, legal and social discussion is extremely bizarre and disconnected from the reality that we live in. The present day reality of inequality in which People of Color, Women, LGBTQ+, those with disabilities and chronic illness, those who live in families of long-term poverty, etc. live and always have lived should make that talk about things such as "equal justice under law" sound surreal but it doesn't because we consider that as an abstraction and not in terms of reality.
In terms of Constitutional babble, both learned and the pervasive common nonsense about it, we talk as if the huge fact of the Constitutional order was that "the founding fathers" "gave" "us rights" and that all we need to do is to follow their ideas when the overwhelming fact of "rights" in terms of those mere mortals was that they had no intention of there being equal rights, certainly not for those they were murdering to steal their land, certainly not for Black People they were holding in slavery of a form forbidden by even the slavery provisions in the Mosaic Law,* not for Women who, we are finding out right now, are no closer to equal rights in their daily reality unless they are quite independently rich, a condition which, in itself, defines inequality and nothing like equality even under the laws of the state. As I pointed out in the post objected to, they certainly never denominated the most obvious of necessities of maintaining even the meanest of lives as "rights" concentrating on those of most interest to those who were not at a loss for food or clothing or housing because they already had more than sufficient for themselves and those they cared about. And that is the state of the Constitution in what likes to think of itself as the premier example of "liberal democracy."
Clearly our history AND OUR PRESENT in a period after the most promiscuous talk and insistence on and struggle for and reactionary push-back against equal "rights" proves that there are deeply problematic issues with the entire framing and notion of them.
It is exactly Stanley Hauerwas's skepticism about all of this "rights" language that has led me to read and consider more of what he said and to listen to his lectures. And his skepticism is not only about the mandated secular framing of "rights" but even that which Jefferson gave in the Declaration of Independence, inherent rights endowed on us by our "Creator," something which Marilynne Robinson astutely asked what a secular framing of that idea would sound like. I will point out that that brief mention of God, in denatured "enlightenment" terms, in that document, some of the most morally potent language in our founding documents was certainly negated in the one that mattered in action and fact, the Constitution.
I am certain that those slave-holders and Indian murdering, land accumulating financiers and wage-slave-holders. those most minutely and astutely considerers of the implications and consequences of what they were setting down on paper wanted to, by ensuring secularism as a requirement in it, remove any such notions of divinely mandated equal rights which, in fact, those subject to subjugation would notice and use to argue for their equality. That struggle was already present and, in some of the States, pervasive at the time of the writing of the Constitution, it was certainly known to many of those who met in the Constitutional Convention, including those who held slaves. In every colonial and early American articulation of emancipation of slaves I'm aware of, that was made in explicitly religious terms. While agreeing that equality in a pluralistic population required the government to be "secular" in its administration, its consequences when that is read as it also requiring it to be amoral in its goals is quite another matter.
Far from it being a grantee of equality, I think the effect, intended or not, has been for the secular framing and administration of our "supreme law" the Constitution, something that has impeded equal justice, not helped it in almost all cases. I have repeatedly pointed out to atheists and those who insist that all of our political life be conducted under strict "separation of church and state" that when those held in slavery began to struggle against slavery, it wasn't the secular language of the Constitution they began their arguments with, if it was the founding documents appealed to it was exactly that statement about what God had given them in the Declaration BUT THAT THEY WERE MOST LIKELY TO APPEAL TO THE DOCUMENTS OF RELIGION claimed by those slave-holders and the large majority of other Americans, the Book of Exodus, most of all. When The Reverend Martin Luther King jr. made his argument that there was an unpaid promissory note due in the Civil Rights struggle, he went to Jefferson's claim about rights endowed by God, not to the Bill of Rights, but he really turned to the Prophets of Scripture.
When I first read Hauerwas on the topic I was a bit shocked about it until I really listened hard to what he was saying. That shock was due to the fact that the entire secular framing in which I had been educated to think about such things presented that conception of "rights" as complete and adequate in itself when that history AND PRESENT I had not only thought about but witnessed and experienced should have prepared me for the reality that that conception has failed, continually and, when the greatest steps were taken to correct that, quickly and successfully driven back by those who benefit from inequality and the denial of rights and, even more so, equal justice.**
Most noticeably it has failed in the conservative - which can safely be read, as "racist" - reaction against equal rights being mandated and made real, by the Supreme Court destroying the Voting Rights Act, attacking the Civil Rights Act, the failure of the country to adopt the Equal Rights Amendment, etc. But the fact is that even under the law there has been a continual, pervasive and abject failure of the Constitution, perhaps especially the Bill of Rights to produce anything like equality. In fact, as can be seen by Supreme Court rulings from almost the beginning, that Constitution has proven more useful for the denial of rights, the denial of equality and the promotion of privilege for exactly those who resemble the framers of it in terms of race, gender, class, moral disposition, etc. than Black People, People of Color, Women, LGBTQ+, the vicissitudes of being born into and raised in the economic underclass, etc. Far from the pious civics class myths, under the Constitutional regime of "rights" the progress has not been a steady march towards equality and equal justice, nothing like that. And we are in a period of dangerous and serious reversal of any rights so gained under the very Constitution such ill-placed faith was put in.
Hauerwases thinking about "rights" is not simple or easily completely or accurately given. There is something subtle and elusive about it, even more so to one educated into our most common and failed notions of secular rights under liberal democracy. I worry that that elusive quality will have to be made clearer before it can have any real impact. And I suspect it should have much more of an impact because it is important.
The fact is that his conception of it isn't a demotion of what is due us and, even more so, imposed on us as a moral obligation, it is an elevation of the entire matter to a higher level. I'm still in a relatively early stage of understanding what he thinks on the matter. I may try to transcribe a lecture and Q&A on the topic I've downloaded and give my thoughts on that. He does ask some extremely important questions about rights in terms of torture and sexual enslavement as not merely an assertion of "rights" which more than imply a requirement on those wronged to pursue justice for them, themselves, but which as a human possession are certainly not complete even as an endowment by God. He says that when you discuss the wrongness of torture or a young girl being forced into prostitution merely in terms of right, you are demoting the issues instead of raising them to a level where the wrong is identified and measured in terms of the need to make them right. He is far ahead of where I've been in trying to anticipate problems with even the most seemingly idealistic of abstract ideas of rights.
His argument as to the wrongness of slavery in a Christian framing is superior to that of secular talk, he puts it in terms of the body of those enslaved belonging to God not to any person, including the ones enslaved. Which, if taken seriously by Christians, would have always precluded them from enslaving others and in those not enslaved to treat their own bodies and lives with less than great care. I am a little troubled when he puts it in terms of baptism giving that status but suspect that would have to include a Christian obligation to ensure the opportunity of baptism that would grant that status, a Christian obligation to encourage in the strongest ways, such a baptism. I still would insist that our embodiment by birth would instill that status on us. But I suspect that he, also, sees something beyond the specifically Christian framing he gave in that argument against Christians participation in slavery.
One thing he talks about is what such an understanding of our bodies as being God's and not our own would call into question a right to commit suicide which I think is very important to think about. I have mentioned Barney Frank once flummoxing the rather dishonest and stupid Henry Hyde on the question of a right to commit suicide. Hyde used the anti-abortion language of "a right to life" which Frank effectively countered as to who possessed that right, that "rights" don't float around disembodied but that they had to be held by a person whose right was specific to them. I remember often being impressed by that agile use of logic even as I wasn't certain I exactly bought it, having known suicides and the devastating consequences of them killing themselves. I wasn't sure it was that simple. I am not certain that the thought-out position on "assisted suicide" that is sweeping many a liberal-democratic polity will prove to not produce some pretty bad results, coming as it is bound to with issues of economic inequality, economic utility and the other issues that surround some of our other most terrible moral failures, slavery, wage-slavery, Women's subjugation, sexual bondage and enslavement, inequality in medical care and education, etc.
My skepticism of secular thinking seems to be centering on there always and necessarily being something missing at the center of it, something which, without, the greatest intellectual strivings for equality and democracy and the common-holding of a decent life will always fall short. I don't think it's possible to get closer to that if you insist on keeping God out of the picture. It certainly has worked that way in American history, as evidenced by the actual history of abolition, the civil rights movement, etc. Eventually you have to believe what your eyes see, the testimony of others and what your experience of life has shown you. Any of the supposed Christian persons or churches who participated in or colluded with that had to ignore the teachings of Jesus and Paul, the Law of Moses in order to do that.
The framing of the struggle for equality and a decent life under a secular regime of rights has had its run and the results aren't equality. The intention to produce decency of life reached its high point about the time that Nixon began the turn back against the progress that had been achieved, even Nixon felt its pull when he proposed that still radical notion of a guaranteed income. The Constitutional order under the "Bill of Rights" has been one of the most potent tools of those who attacked that progress as the decisions doing that by the Rehnquist and Roberts Courts have proven, as have those which either found them inadequate to enforce equal treatment under law to, for example, Japanese citizens during WWII or in turning back demands of equality under Plessey while pretending segregationists were going to provide equality. It is clear that that secularist legal framing has some basic and intrinsic problems with it, it certainly has never produced what it claimed to during any of its existence as the supreme law of the land.
I'm less skeptical about some more modern Constitutions but am certain those will prove to have some basic problems, as well, some of which will turn out to be as dangerous as those contained in the U. S. Constitution. There are court rulings under the modern Canadian framing that have produced some pretty bad results. But I don't think the ultimate means of achieving equality and justice and a decent life rests on such documents but in the hearts and minds of a sufficient majority of People, sufficient to overcome the heritage of the Constitution and the Bill of Rights and Court rulings.
Our "rights" talk in which Neo-Nazis, Neo-fascists, Republican-fascists, etc. can adopt and use the very same language that they openly intend to never put into effect if they gain power to achieve their ends and which has been used by the ACLU to enable Neo-Nazis, etc., the corrupting, fascism promoting mass media, the gun industry, various other industries in their promotion of devastating addictions and other harms, etc. facilitated by judges who have no real or professional interest in justice, indeed, some of them fearing higher courts would overturn such good intentions, all of that shows that at the very least we really need to rethink hard what all of that is and has been about. And secularism lacks the means to really do that. Secularism is incapable of even identifying the superiority of equality and equal justice, in the end. In its most developed forms, it can't even support the reality of freedom of thought or choice. When pushed to its logical conclusion, its most common basis in materialist determinism requires it to debunk any notions of moral truth and even the possibility of freedom.
None of this is easy, in the lecture to linked above, Hauerwas notes, "If confidence in the language of rights it lost it is not clear what the alternative to nihilism will be." I don't think you can find that alternative in secularism, but you can in Abrahamic religion and in many other religious traditions that insist on our equality under God.
* Certainly those are some of the Scriptural laws that existed due to the "hardness of heart" that is pervasive in the human population, with some provisions that would make that Mosaic enslavement far less absolute than that experienced by the Children of Israel described in the book of Exodus and which was practiced by the Greeks, Romans and other nations in their later experience. Though I am sure that like all such law, its better intentions were often violated by those who professed them. The mention of slavery by Paul was, I'm sure, something similar, dealing with early Christians who came from and lived in a milieu of Greco-Roman style slavery with no escape to an equivalent to Canada or even, before Dred Scott, free territory possible. It was Paul's attempt to deal with hardness of heart, habits and social conventions they lived in, so he gave a commandment that slave-owners were to treat those they held in slavery as brothers. Which, if followed, would probably be better for those enslaved than the kind of rare willed manumissions issued by Madison, Jefferson, Washington, etc. If the slave-holding "Christians" had taken Moses and Jesus and Paul seriously there would have been no fugitive slave law and other such Constitutionally permitted and Supreme Court encouraged laws under our secular order, there would have been ample provision made to those who were freed from bondage in exactly the way the Constitutional order of the United States never mandated and our government representative of the male-white majority didn't enact. Slaves treated as equals and brothers and sisters are not slaves in any sense of it, whether chattel slaves nor wage slaves. About the earliest abolitionist was St. Macrina the Younger who talked her mother into treating those enslaved by their family as family members and they more or less lived as members of a household, she took the teachings of Jesus seriously, about the least among you and those who were first being last, etc. Near the end of her life those who had been servants in her house tried to talk her into sleeping in a bed but she insisted on lying on the floor as she always had. I think that kind of thing accounts for why her brilliant brother St. Gregory of Nyssa, the source of most of our knowledge about her, respected her as his teacher and, I gather from how he wrote about her, moral superior. Given their time and place in history, their thinking is rather breathtaking in its egalitarian justice.
** I think the problems of the secular, Constitutional type of framing makes even the concept of equality problematic. When a rich, racist, elitist hack such as John Roberts can use the language of "equality" to claim that the role of a Supreme Court "justice" like him is to apply the law equally, "calling balls and strikes" while maintaining and enforcing and reinstalling the monumental inequality in life that he and his Supreme Court, the Supreme Courts of the past have, that word has some problems to it.
And under even the more seemingly benign style of U.S. Constitutional advocacy, the results of "equal justice under law," are hardly ideal. When the ACLU style civil liberties law hacks can disclaim an interest in the results of their litigation that they are merely insisting on "an equal playing field" on which those with wealth, power, racism, amorality, etc. on their side will always kill the other team, the abstract concept of "equality" of "equal justice under law" such as our Constitutional system conceives things will always produce grotesque inequality in life. I have long thought there would be an interesting tale to tell if the financing of such "civil liberties lawyering" was fully revealed as I have found the financial history of some of the great figures on the Supreme Court to be a revelation in understanding their allegedly disinterested rulings.
Abstracting such virtues out of any real context of life and morality is a guarantee that they will be perverted into the kind of virtue that "equality under the law" is in the United States under the secular framing of the Constitution. It really doesn't seem to believe People really matter despite the frequently higher aspirations of many of the People who are led to put their faith in it. Secularism guarantees that there will never be an adequate moral end to produce such results. You need something more to do that, something strong enough to force you toward it.
No comments:
Post a Comment