A Bill of Obligations
Justice Thomas buries a jot of wisdom under a full plate of ignorance.
NOTE: Within this text, wherever gender is not key to the explanation, I am using the Elverson ey/em construction of the Spivak Pronouns.
Justice Clarence Thomas was confirmed to the Supreme Court under a cloud of shame. He had, most likely, made entirely inappropriate advances to Anita Hill who was discredited by a network of prejudiced men intent upon preserving their supremacy. Meanwhile, Thomas was revealed to the rest of us to be a buffoon and a bully. He remains so today.
All attempts to make Justice Thomas look smart have been laughably strained. Those situations wherein Justice Thomas has spoken publicly, he has typically shown himself to be an imbecile. The generous explanations around why he asks few questions during Supreme Court arguments are transparent apologetics.
Recent events have reminded me of a 2009 keynote speech given by Justice Thomas at the “Being an American” Essay Contest Awards Gala. In it he revealed his jingoistic understanding of patriotism and citizenship. He encouraged the presence of the flag and the crucifix in each class room emphasizing America as the Christian nation of his childhood fantasy. He touts the simplistic claim that hard work will earn a person wealth when poor domestics and lower class fire fighters work harder than Justice Thomas ever has. He marvels at how many young people have cars and cell phones (essential to getting a modern job). He decries this as an undeserved luxury which they see as a right. Justice Thomas seems most comfortable with the rights that only the wealthy may purchase, the rights that guarantee continued privilege.
He complains that people expect too many rights and that what is required is a Bill of Obligations or a Bill of Responsibilities. This absent-minded slip-up challenges the Right-Wing project and reveals an amazing ignorance of the purpose of the Bill of Rights which, of course, does not grant any specific rights to citizens. The subset of citizens’ rights identified in the Bill of Rights is only implied. The document has only one purpose: to forbid the federal government threatening certain specific human rights. It is a list of negative rights: rights that the federal government does not have.
Those specific ways that the government may not violate those particular assumed human rights are fairly specific. There was no attempt whatever to claim that these implied human rights were the only rights humans have, they were only the ones of greatest concern to the founding fathers at that time. They were negative rights for a very important reason: the founders defined rights in the way that John Locke defined rights.
Inherent Rights
John Locke, if I may attempt to summarize, understood a right to be an innate thing inherent to each human being. His focus was on natural rights and he saw legal rights as much less meaningful since they depend upon a social contract which Locke saw largely as a distraction from the elegant purity of natural rights. It is the purity of his reasoning that impeaches its overall usefulness.
As far as Locke was concerned, you are born with fundamental rights assigned to you by Nature itself. If you need to acquire a right from someone else, it is not a right, it is a privilege acquired temporarily through your social contract. In other words, any right you may have must be something that you have in full measure on a deserted island. You may speak as much as you want on a deserted island. You may claim the entire island as your property. You may practice any religion you invent and you may wield any weapon you may construct. So, on a deserted island without any others around you, you have free speech, freedom of religion, the right to property and the right to bear arms. On that island, there are other rights, of course, that are not mentioned in the Bill of Rights. You have the right to eat what you can find, the right to sleep when you are tired and the right to poop freely anywhere on the island. Those rights are pretty nice and they are not mentioned in the Constitution. That does not mean that they are not rights.
If health care is a right, how will you acquire this on a deserted island? If the pursuit of happiness is a right, how will you do this on an island isolated from the company of other humans? If a fair wage is a right, who will pay that wage when you have no available jobs? This is why Right-Wing politicians and their donors reject any rights that are not natural. It is to their benefit, as those who hold property and power, to assure that no human right may infringe upon their privilege. Their natural rights are unassailable because your natural rights are meaningless.
The Bill of Rights is a partial list of rights that the government may not take away from you. There was no reason to enumerate all rights since every learned person knew what they were. No rights may be given because Locke makes it clear that there are no inalienable rights other than those with which you were born. For this reason, you cannot grant anyone a right. A granted right is an artificial right (a legal right). A right that you do not have on a deserted island is not a real right. Locke’s view, in other words, is very intellectual and philosophical and pointless.
Pointless Rights
Of course, no right means anything absent a community of other people. The right to property on a deserted island is meaningless until another person finds the island and seeks to wrest some portion of the island from you. When that happens, your right to property may be taken away from you in classic Lockean fashion. In order to assert your right, you will need a community. First you will need some document that proves your ownership of the land issued by some authority. You may require a judicial system to assess your right against the other’s right. If you discover that the other was actually there first, your right to that property is simply not a right; it is an abrogation of the other person’s right and you may have to walk into the sea and drown. Deserted island rights are pointless rights.
Near the end of the Q &A period after Justice Thomas’ address, Fox News personality Andrew Napolitano asked Thomas if rights are granted by the government, by the consent of the people or by our humanity. Thomas’ answer was that rights are fundamental to our humanity meaning that he adheres to John Locke’s understanding of rights — pure, philosophical and pointless. Then he made this fascinating statement: “Our freedoms do not come from the government. The government comes from us.” This simple meme, this accidental signal elicited a rousing exclamation of patriotic fervor from the deeply conservative crowd. This was Thomas’ second slip-up.
Had no one spotted the two fundamental errors in this forty-five minute speech? Thomas had made two clumsy mistakes in this presentation which actually betrayed a clear contradiction of the philosophy espoused by the Right.
Like the claim that we need a Bill of Obligations, this statement about the government arising from the people borders on heresy but was skipped over. No one noticed that a government that arises from the people is the product of a community. It is a repudiation of Reagan’s claim that the government is the problem and not the solution. It is fundamentally at odds with the Republican Regressive view that we are lone actors and that there is no governmental mechanism we may construct which may serve us equitably.
So these two flubs (“Bill of Obligations” and “Government comes from us”) cannot exist in the world of citizens have too many rights and shouldn’t have cell phones or cars if they are poor. It cannot exist in the Right-Wing world of we should starve people into taking our low-wage jobs. It is utterly incompatible with the Regressive trope of the people’s vote doesn’t count, we want our daddy back. The speech openly challenged the Republican project.
Thomas’ Inadvertent Message
If Thomas had actually weighed his words with a precision balance rather than a few quick hefts, he may have rightly proposed a detailed list of human obligations. These would not be presented as negative obligations since the government actively repressing people’s obligations is rare. Certain governments may forbid certain ethnic groups to help other ethnic groups but that is unusual enough that a set of positive obligations should be more appropriate.
Thomas has inadvertently exposed a real problem to which we may seek a real remedy. The neoliberal/libertarian philosophy, which the Right seeks to actively promote, is the childish view that we are each isolated actors separated from each other and condemned to survive in this desolate wasteland — hauling ourselves from place to place with our ill-defined, self-propelled boot-straps and making our very selves from the illusory worthless muck of the Earth’s barren skin.
This delusion has used the concept of rights as a subterfuge for license to do as one pleases. Thomas played an important role in propagating this delusion and yet, his goofy claim that people have too many rights and should instead be motivated by statutory obligations carries real value. This naïve concept is based upon truth. We humans are herd animals. There is no evidence whatever that any individual has ever prospered without the participation of other humans. Humans prosper through cooperation and mutual support. This is how agriculture, pottery, hunting and metallurgy came to serve mankind. No one individual delivered any of these revelations, god-like, to the admiring minions. They were each a group effort. Supported by a community, the first effort was sponsored by a village elder who encouraged the new idea and a family who kept the dinner warm for the sweaty late-night return. Villagers encouraged and provided support while a few workers with an idea began the initial inklings of some new solution to a persistent problem. No human has ever prospered without the support of community.
We all survive together or not at all. Perhaps a Bill of Positive Obligations would declare obligations that should be defined for all humans in order to reinforce our life-affirming community. For example, each human has an obligation to listen to each other’s opinions and respond thoughtfully. Each citizen has a responsibility to help eir fellow citizen whenever possible. Each citizen is obliged to learn rhetoric and critical reasoning so as to better assess the real world as it is and not as one would hope it to be. Each citizen is obligated to assess eir interests and those of eir fellow citizens and vote in such a way as to optimize the best interests of all.
Of course, we see here the problem faced by our founding fathers. The explicit enumeration of human rights or obligations is really complicated and quickly devolves to gray area, which is probably what made Locke’s understanding of rights more palatable. When Justice Thomas mentioned a Bill of Obligations, what was he thinking? It seems that he may not actually think using concepts, but instead by assembling a group of familiar signals that merely approximate a concept. Other takeaways from his address:
- Dishwashers were a miracle when I was a kid, so poor people don’t deserve them.
- People shouldn’t complain, they should just be successful like I am.
- People should work hard and not express grievances.
The Justice wasn’t thinking. He merely sought to raise an eruption of primitive, self-satisfied patriotism.
The Bill of Positive Rights
Unbeknownst to Thomas, the Bill of Obligations promotes something with which he would be very uncomfortable: a government of the people by the people and for the people that may actually encourage our participation in healthy and supportive community. It describes a society from which real and healthy governance may arise as a part of our common obligations to ourselves and each other. It implies legislators who recognize their obligations to their voters and not to their contributors. It implies a citizenry who recognize their obligations to participate constructively in their government at all levels. Such a world may then reject Locke’s view as interesting but entirely obsolete. It may recognize that positive rights are now conceivable.
Switching to positive, non-Lockean rights that accept our true roles as part of a community, we may establish a Bill of Positive Rights. Perhaps the government shall promote the rights of citizens to vote by assuring that States may not restrict voting by any means but shall instead identify strict regulations in order to assure fairly apportioned districts and rank choice voting procedures.
Maybe the government could be impelled to preserve every person’s right to free speech by assuring that no individual’s personal wealth becomes insurmountable so as to quash the free speech rights of others who were less lucky. Perhaps, even better, the government could preserve the individual right to sovereignty and self-determination by denying artificial persons, such as State-sanctioned corporations, any rights equivalent to an actual human being. Would it make sense to require that the government preserve each individual’s right to life, liberty and the pursuit of happiness (not in the Constitution but clearly identified in the Declaration of Independence) by forbidding the government to pass laws which support, in any way, those corporations that profit from the suffering of humans such as fossil-fuel companies, defense contractors, for-profit hospitals, for-profit prisons and for-profit pharmaceuticals?
Oh, now we have Thomas’ Bill of Obligations and his government established by the people. It would not be built upon the dessicated deserted island of Locke but on the rich fertile ground of Sanders, Cortez and Chomsky. Now we have a government that serves and is served by an active citizenry whose obligations and rights are built into the system. We have an economy that respects the true rights of all people in community and not in isolation. We have a government and an economy which Thomas has accidentally suggested but which would serve a noble and progressive purpose.
Covid Reminder: I struggled to write this in the midst of a breakthrough Covid-19 infection — muddles the lungs, muddles the mind. Asymptomatic for several days, I am thankful I wore my mask most of the time. I should have worn it all of the time. I encourage all to wear a mask. It is a simple courtesy.
Julian S. Taylor is the author of Famine in the Bullpen a book about bringing innovation back to software engineering.
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