Moral Rights vs. Legal Rights

A number of topics of public discussion in recent weeks – rights of Guantanamo Bay detainees, treatment of citizens in foreign lands, the current FISA Amendments - have touched on a significant inconsistency in the way Americans think of the relationship between legal and moral rights.

It is a consistency that is particularly blatant among the religious right, though it is not limited to them.

It is an inconsistency that makes its greatest expression in light of claims made to defend religious references in the Declaration of Independence, ‘under God’ in the Pledge of Allegiance, ‘In God We Trust’ as the national motto, and the claim that atheists cannot be moral (because morality requires God).

The importance of claiming that our rights come from God – for those who insist on this theory – is to say that our rights have a source that is outside of human contrivance. If our rights do not come from God, then they come from man – and what man gives, man can take away. If, instead, our rights come from God, then no man can take them away. Putting America ‘under God’ in this sense means putting the country under this set of external moral constraints that do not allow mere mortals to dictate the difference between right and wrong.

[Note: I argue, of course, that this is a false dichotomy. Our moral rights exist in the form of discoverable relationships between malleable desires – desires we have the power to influence through social forces – and other desires. Those relationships exist in nature. Man has no more power to ‘decide’ on a different set of relationships than he has to ‘decide’ to alter the gravitational constant or the speed of light in a vacuum. It is, furthermore, inappropriate for the government to declare that those who hold the ‘god theory’ of rights are inherently more patriotic than those desire utilitarians, but that is a matter for another post.]

Let’s take this claim seriously – that our rights come from God or some other external source, and that they are human rights. They do not come from man.

Now, let’s look at how these same people treat the rights specified in the Constitution. According to the dominant vie these rights only apply to American citizens. If a person is not an American citizen, then he has no Constitutional rights.

This Constitutional theory requires the assumption that our rights come from man, and what man can give to people, man can give away. Because man has assigned these rights only to a particular subset of people, only that particular subset of people has these rights. What man gives (in terms of rights), man can take away.

This applies to the FISA bill because of the assumption that, while the warrantless searches and seizures of American citizens is ‘wrong’ in some sense, it is not wrong’ to conduct warrantless searches and seizures of people from other countries. While rounding up Americans, torturing them, holding them indefinitely without formal charges or a trial, is considered ‘wrong’ in a sense, it is not considered wrong to inflict these harms on foreign nationals.

Please note I have noted an inconsistency. There are always two ways to resolve this inconsistency.

If it is morally permissible for a government to conduct warrantless searches and seizures of foreign nationals on foreign soil, then this suggests that the ‘right’ against warrantless searches is merely a political contrivance, and there would be nothing morally wrong with opening up warrantless searches of American citizens on American soil. That which it is morally permissible to do to others, it is morally permissible to do to Americans, and it is only made illegal as a matter of (arbitrary) legal contrivance.

On other hand, if it is morally impermissible to conduct warrantless searches and seizures against Americans – if this is no mere legal contrivance but represents some form of natural right to privacy – then it is equally immoral to conduct warrantless searches and seizures of foreign nationals. After all, they are human beings as well, and as such they have the same God-given (or external) rights that Americans have. Denying that they have the same rights is the same as denying that those rights come from God (or denying that they are something other than mere human contrivances as well).

It is surprising to note that those who allegedly view rights as coming from God (or some other external source) and as being applicable to all men (to use the Declaration of Independence's wording) tend to be the most vocal at insisting that those rights only be granted to some men while enthusiastically violating the same rights of others.

At the same time, those who allegedly view rights as mere human contrivances tend to be the most vocal when it comes to insisting that if something is a moral right – a human right – that it truly must govern our behavior towards all men.

Let me repeat, I consider this to be a false dichotomy. There is a third option. It is possible to hold that rights have no divine origin, but that they exist in nature (in the form of relationships between malleable desires and other desires). As moral rights, that which (the government claims) it may permissibly do to foreign nationals, it is saying it may permissibly do to Americans. That which we say the government may not rightfully do to an American (not as a matter of political contrivance, but as a matter of moral right), it has no moral right to do to a foreign national.

Please note, in this posting at least I have not defined what it is morally permissible for the Government to do to American citizens or to foreign nationals. I want to make it clear that this post is not concerned with supporting any particular conclusion about what is permissible and what is not. This post is concerned only with pointing out the demands of consistency – that whatever the government is morally permitted to do to foreign nationals it is permitted to do to citizens, and whatever the government is morally prohibited from doing to citizens it is prohibited from doing to foreign nationals – whatever that may be.

Only a hypocrite will argue that it is permissible to do to foreigners that which morality prohibits doing to an American citizen – that which is a moral right. Moral consistency does not allow any other option.