Human Rights Versus State Needs: The Franco-American Celebration

Two epochal events in the course of human rights happened almost simultaneously 200 years ago.

The French National Assembly approved the Declaration of the Rights of Man on Aug. 26, 1789, shortly after the Bastille had been stormed by mobs looking for weapons. On Sept. 25 that same year, the new Congress of the United States approved the Bill of Rights, in the form of 10 amendments to the Constitution. One document marked the beginning of a revolution, the other ratified the resolution of a revolutionary war.

Throughout 1989 various bicentennial celebrations are planned, to commemorate the common concern for civil rights in both the United States and France, but differences are worth noting, too. Governing philosophies affect nations, just as revolutions do.

The French National Assembly did not include common people, but clerics, aristocrats and bourgeoisie. And the declaration they framed was written with some apprehension about the coming terror in the streets. Consequently, many of the rights proclaimed were qualified by duties expected of citizens. First and foremost, men were declared both free and equal, but social distinctions were said to be acceptable when useful. And to this day privileged Parisians proudly accept their social standing as the patrimony of the nation. Otherwise, who would set the poor a good example? Freedom of religion was guaranteed, but not to the extent it might disturb the public order, as defined by government. Freedom of speech was similarly subject to constraints imposed by law, to guard against abuse.

Sovereignty was taken from the sovereign and given to the nation as a whole. But there were provisos written into the rights of man, to keep individuality constrained. Equality before the law replaced arbitrariness of government but government would evaluate the interests of the people and impose limits on freedoms and on fairness whenever necessary. The nation’s interest, under law, superseded that of the individual.

The common welfare of the nation has generally prevailed as the governing philosophy in France. Elected officials and well-educated functionaries are guided by what they take to be the best interests of the state. So, nuclear weapons are exploded on Pacific atolls, without the consent of native islanders, and Greenpeace warriors are murdered in the name of France. Actions that foreigners abhor are seen to be a duty, serving the interests of the nation. It is a philosophy that has proved popular to Francophiles. It has also inspired chauvinism. Every philosophy of government is double-edged; this is France’s sticking point.

The U.S. Bill of Rights was founded on a different, “don’t tread on me” philosophy, where the rights of man superseded duties to the nation. Unlike the French declaration, Congress imposed rights without restrictions. No laws would be countenanced constraining religion, freedom of the press or speech. The right of persons to assemble peaceably--even to complain about the government--was absolute. The right of citizens to keep and bear arms was not to be infringed. And the Ninth Amendment endorsed all other rights belonging to the people, in addition to those not spelled out in the Constitution. The Constitution could be changed, of course, but short of amending these amendments the welfare of the nation could not take precedence over the privileges of persons.

The remaining items in the Bill of Rights were largely procedural protections, guaranteeing individuals their day in court, similar to legal rights being guaranteed in France. Finally, the 10th Amendment insisted that except for powers explicitly written into the Constitution, the powers of the people and of the separate states were sacrosanct. This same philosophy was soon embraced by the American philosopher Ralph Waldo Emerson as self-reliant conservatism--a philosophy suspicious of officials.

Our unrestricted freedoms have come to include far more than the Founding Fathers bargained for: pornographic movies, Nazis marching in the streets and ghetto gangs packing submachine guns. The result of such excesses has produced a philosophic friction.

Today’s conservatives enthusiastically embrace self-reliance but seek to override the Constitution when it comes to pornography and unwelcome demonstrations, while at the same time invoking constitutional protection to sell weapons. And the American Civil Liberties Union, which favors an interventionist philosophy, finds itself engaged in defending self-reliance, with lawsuits over creches, crosses and menorahs displayed in public places, not to mention defending the right of the Ku Klux Klan to demonstrate. Both conservatives and liberals invoke “don’t tread on me” selectively. It’s getting hard to tell who is on the side of what.

About the time Emerson was writing “Self-Reliance,” Alexis de Tocqueville observed how our form of government enhances the political power of those lawyers who “do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means which are foreign to its nature.” Certainly, our procedural freedoms have been abused by those who can afford sufficiently enterprising lawyers to exploit their clients’ Fourth through Eighth Amendment rights, just as our freedoms of religion, speech and assembly sometimes turn democracy into a circus of con men all petitioning the courts. It can even make you want to emigrate to France.

Homespun philosophies never exactly fit the individuals they’re designed to suit; the same is true of ideologies. What is required is not to abandon all political philosophy, but to recognize the limited vision of our principles and to compensate for them with some common sense.

France faces the problem of sufficiently ignoring the nation’s interest to respect the rights of individuals, to counter state chauvinism, to be tolerant of human differences. The United States faces an opposite dilemma, to protect whole segments of society against the power of self-interested individuals, be they common criminals or financiers.

Just as France must restrain its intervention, we often need to intervene through legislation to accommodate the limitations of the Bill of Rights. “Don’t tread on me” does not do much for those who are already trodden on: the ignorant, the homeless, the disabled and the poor--those who cannot rely upon themselves. The Bill of Rights does not include economic guarantees to live the kinds of lives that would make those rights worthwhile. For this reason, the 14th Amendment intervened to provide equal protection under law to supplement equality before the law. Compassion is the common cure for ideology.

There is a certain naivete to any grand design of government. When the Declaration of Independence proclaimed “Life, Liberty and the Pursuit of Happiness,” it also chastised the king of England for not suppressing insurrections among the “merciless Indian savages.” Unfortunately, perfect social progress cannot be mandated by courts or guaranteed by legislation or brought about by manifesto and revolution. It is, after all, a government of men.

Emerson’s self-reliance sided with the skeptics. France’s National Assembly took the opposite approach and thought of the state as a god. Neither philosophy faced up to the limits of its vision. Neither the Declaration of the Rights of Man nor the Bill of Rights addressed the difference between civil liberties and those rights that know no borders and no country.