“Rights” and Federalist 78 – 80
In his penultimate chapter “Rights,” Rakove’s study of “original meanings” looks into the underpinnings of American understandings of “rights.” Citing the work of other historians and theorists, Rakove’s depicts the American preoccupation with rights as a kind of inherited obsession, yet one somehow more virulent and expansive than that of its English progenitors. The term for this obsession alone, “rights-talk,” intrigues us in its emphasis on declaring or articulating one’s entitlements, making them known verbally in one form or another. Englishmen – with their reverence for tradition and their comfort with an unwritten constitution – were content to leave their rights implied, if philosophically grounded in complex treatises of a more epistemological character. But Americans had to talk about rights, make them a matter of public conversation, and ultimately, get them listed in terse bullet-point format. “To such critics as Mary Ann Glendon, rights-talk impoverishes ‘our political discourse through ‘its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities’” (288).
Working from Glendon’s critique, we can easily ascertain how frequently Americans tend to confuse right with privilege in speech and feeling. We are so entrenched in the language of rights that we begin to deploy the term promiscuously, speaking of the right of way on a road, tenant’s rights, right to work, and even the right to life. In our behavior, we claim the right to consume certain resources in ever more prodigious quantities, the right to protect our interests (“at home and abroad” goes the phrase), even the dubious right of self-defense through preemptive war. There’s not much, indeed, to which Americans don’t feel they have a right, when the term serves as a substitute for what are essentially privileges of a historical moment and place. In American usage, rights are merely privileges moralized. And thus the Bill of Rights ends up looking like a very strange document: “Yet for all its merits, a clause-bound approach to the Bill of Rights skews our understanding by implying that the original challenge the revolutionaries faced was to identify, enumerate, and define with textual precision the rights that Americans most valued” (289). On the other hand, unstipulated rights – let’s say the right to grow up with relatively clean air, water, and soil – are never likely to ascend to the level enjoyed by gun owners, for example, simply by dint of the fact they aren’t constitutionally enumerated.
And so an almost comical paradox obtains: “Adhering to traditional notions, Americans saw themselves defending a body of customary rights that common law, precedent, and history had all secured” (293). In one sense the old idea of American exceptionalism that persists today is evident in these early debates, but with a layer of noteworthy irony: Americans wanted to believe themselves special, and yet at the same time, attached a certain universalism to their various truth claims. Rakove’s discussion of rights-talk tries to reckon with that quirk in our national character. On the other hand, despite the American tendency to cast a notion of rights as vaguely “traditional” or “customary” – and thus, inherited, inalienable – Rakove cites historian John Phillip Reid in identifying “no fewer than ten sets of plausible authorities or justifications” in substantiating these rights: their rights as Englishman; natural law; the emigration contract; the original contract; the original American contract; the emigration purchase; colonial charters; equality with other British subjects, especially with Protestants in Great Britain and Ireland; principles of the British constitutional and principles of the customary American constitution (293). In other words, as in so many matters, Americans wanted things both ways: rights were natural, inherited, and automatic and rights were eminently grounded in layers of legal documentation and precedent, indeed, textually undeniable.
You can’t beat the Federalist writers for at turns making an arguably very simple and brief Constitution seem elaborate and nuanced to an extreme and simultaneously rendering complex relationships among branches of government seem very simple and stark. Hamilton’s Federalist 78 presents a splendid example of the latter strain. His explication of the judiciary’s role in the overall scheme of balance of powers is elegant and punchy, a self-contained civics lesson. Operational words are reduced to three, one for each branch of government: force (executive), will (legislative), and judgment (judiciary). Hamilton’s secular trinity has a mnemonic power to it, but also significant explanatory, if simplistic, charm, worth quoting at length: “The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacy of its judgments (465). As far as goes what we would now call “legislating from the bench” – as “activist judges” from California to Wisconsin are accused of practicing – Hamilton is clear that courts must never do it: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body” (469). As a particular branch of government loses its character and usurps that of another, the entire system is subject to breakdown and distortion of authority, a fact well worth remembering.