The Ten Ammendments

If it is wrong to treat a person in a particular way, then a decent respect for morality requires that we recognize that people who are not Americans are still persons, in the moral sense.

I would like to invite each reader to decide how to categorize the principles embedded in the Bill of Rights -- the first 10 Amendments to the Constitution.

There are two possibilities.

(1) Contrivances. The Bill of Rights represents a political contrivance. It is a bargain made among Americans that applies only to other Americans. People have a 'right' to freedom of speech, for example, in the same way that, before 1865, they had a 'right' to own slaves.

(2) Principles. The Bill of Rights represents a set of moral rights that Americans have written into their Constitution. As moral rights, Americans would still have these rights even if they had not been written into the Constitution. Indeed, it would make sense to argue that we need no bill of rights, because true rights do not need to be written down. In this sense, people have a 'right' to freedom of speech, for example, in the same sense that blacks had a right to their freedom even while slavery was legal.

There is actually a third possibility. It could be the case that the Bill of Rights embodies a set of moral rights. However, Americans are the only beings that qualify as ‘people’ in the moral sense. Anybody who is not an American has a moral rank somewhere between human and animal on this standard, which means we may do to them things that would be wrong (in the sense of ‘immoral’) if they were done to an American. In this sense, Americans have a 'right' to freedom of speech in the same way that they once had a 'right' to buy and sell Africans.

This third option obviously has nothing to do with morality. A part of the very essence of morality is that it is universal – applying to all people equally. If it is wrong to murder, then it is just as wrong to murder a German as it is to murder an American. If slavery is wrong, then it is just as wrong to enslave an African as it is to enslave an American. If theft is wrong, then it is just as wrong to pick the pocket of an Albanian as it is to pick the pocket of an Alabaman.

Option (1): Political Contrivance

So, let's look at Option (1); the option that says that the Bill of Rights is a political contrivance. This model invites us to look upon the Bill of Rights the way that we would look upon the rules to a card game.

For the most part, these rules are arbitrary, and no rule has any particular merit in relation to any other rule. One rule says that you can only discard a card that matches the suit or the number of the top card on the discount pile. A different rule in a different game says that you can only discard a card of the same suit but the next highest value of the card on the discount pile. The rules themselves have no particular merit; they only exist to define the game.

If our Bill of Rights is a mere contrivance, like the rules of a card game, then we can replace a rule granting freedom of the press as casually as we can replace a rule governing the number of cards initially dealt to each player. If our Bill of Rights is a mere contrivance, then it does not matter that the people sitting at the next table are playing a different game using different rules. Ultimately, the rules are not that important.

Option (2): Moral Principles

If we take the Bill of Rights to be a set of moral principles that we happened to put into our laws, then we get a different result.

This differs from the previous option primarily in that a moral right does not depend on whether it is enumerated in the Constitution or any law. If the government were to repeal the First Amendment, the people will still have a right to freedom of speech. That right is theirs, not in virtue of living under this specific Constitution, but in virtue of the fact that humans have a basic right against this type of behavior.

On this conception, constitutions cannot grant or take away rights, they can only express the government's intention to respect or abridge rights that exist independent of government.

The problem is, if we look at the Bill of Rights as a set of moral principles defining rights that we have even if they were not written into the Constitution, then one does not have to be an American to have these rights. The Courts may decide that the government may freely abridge these rights when the victims are not American. Yet, the Courts cannot change the fact that the acts that violate these principles are immoral. They are just as immoral when the victim is German, or Egyptian, or Indonesian, or Russian, as they are when the victim is American.

If these are moral rights, then they are human rights, not American rights.

The person who says that citizens of other countries may be murdered, imprisoned without trial, or subject to cruel and unusual punishment, is somebody who says that the principles in the Bill of Rights are like the rules of a card game -- rules that can be accepted or discarded at will, that the rules have no real value.

The person who treats people from other countries in ways that would wrong if an American were the victim says that there is nothing particularly wrong with treating an American the same way. He is saying that the act is not particularly wrong, but is simply something we have decided (for some trivial reason) not to do to Americans.

The person who says it is wrong – really, morally, deeply wrong – to violate free speech, or to imprison an American without a trial, to subject an American to cruel and unusual punishment, has to be saying that it is wrong to do this to any person, even if that person is not an American.

That is, unless the person holds the completely pathetic view that only Americans are ‘persons’ in any moral sense, and that all other nationalities count as something less than human.

Security Requires Violating these Principles

There are some who argue that we cannot live according to the principles embodied in the Bill of Rights and apply them universally to all humans. We cannot do this because we would then be living in far of the next monster who would want to enslave us. These rules – these principles – make us weak and vulnerable. Our government needs the power to violate the Bill of Rights when it comes to foreigners because it is the only way to keep our country safe, they say.

Those who think this way have to think that America is a failed nation. If we cannot have a successful society governed by the Bill of Rights, then American cannot be a successful society.

My question is: Why is it that the government does not need to violate the rights of Americans to keep this country safe? What is the big difference between somebody in Colorado giving a right to be secure in one’s persons and possessions to a Pennsylvanian versus a Peruvian? If we are not saying that the Pennsylvanian is more of a ‘person’ than the Peruvian, then on what basis that we do things to the Peruvian that would be morally objectionable if we did them to the Pennsylvanian?

Our nation has done quite well respecting and obeying the principles within the Bill of Rights for the last two hundred years. This fact alone gives us reason to reject the claim that a society that respects individual rights to freedom of religion and the press, to peacefully assemble, to be secure in their persons, houses, papers, and effects against unreasonable search and seizure, or be deprived of life, liberty, or property without due process, and the like. A society does live under these principles; therefore, a society can be formed under these principles.

The rules that I am talking about – the moral principles embedded in the Bill of Rights – allow that there are exceptions in times of war or public danger. These factors can be taken into consideration while still avoiding the hypocrisy of doing to others in times of war or public danger that which would be considered wrong if it were done to Americans in time of war or public danger.

That only goes to show how good these rules are.

Conclusion

So, I ask the reader to decide. Is the Bill of Rights a political contrivance of no particular significance or value? Or is it a list of moral principles that define rights that people have regardless of whether or not they were actually written into the Constitution – moral principles that we have in virtue of being human, and thus moral rights that all humans have, regardless of whether or not they are American?

I suspect, in all honesty, many Americans actually accept the third option. This is the option that states that the Bill of Rights identify moral principles. However, only Americans are fully moral 'persons'. People from other countries have a moral status that is less than that of humans, comparable to that of animals, and have no right to the same treatment.

There is one last question to ask. Do you want to keep these rights? Do you want to promote respect for these principles as moral rights? This means getting as angry when others are subject to treatment that these principles would forbid, as you want others to be if you were the victim of these violations. Otherwise, do not be surprised if others are as apathetic about your own victimization as you were at theirs.