Getting it RightA response to "When Rights are Wrong" by Tracey Meares and Dan Kahan
Jean Bethke Elshtain
In the lingo of the 1960s: right on! Meares and Kahan help to expose the false and tendentious bad faith that now, all too often, animates absolutist libertarians, who seem more interested in maintaining ideological purity than in dealing with concrete troubles. In a world of abstract and nigh-absolute rights, one need not make a concrete connection to a community-any community-and its needs, values, desires, and norms. There's more than a bit of condescension and paternalism in such a perspective, and Meares and Kahan help us to nail it down.
The article is written clearly but let's just survey the main points. Residents of "Chicago's low-income housing projects"-already, then, victims of liberal social engineering that was distorted horribly from its inception-now have the "right to be free from mass building searches." But, there is only one problem: "an overwhelming majority of the residents opposed the ACLU's effort to block the building searches. " This mattered not to the ACLU, which was determined to force "self-respect" upon people it clearly regards as less-than-competent citizens. Lurking in the interstices of this extraordinary idea is an utterly banal bit of what should have been discarded long ago: the Marxist canard about false-consciousness. If "the people" make the wrong decisions, the theory went, it's because they cannot see what is right or in their own best interests-and therefore their judgment should be overridden. Meares and Kahan call this position "extremely unreasonable." It is worse than that. It is unconscionable.
From here, one could take the argument in several directions. Perhaps the fruit was poisoned from the tree-that is, the ACLU from its very inception has dedicated itself to such an abstracted, view-from-nowhere notion of rights that this is par for the course. Or, alternatively, the ACLU may have become locked into hardening categories over time, and now cannot see the forest for the trees. I would probably take the second position in a longer treatment of this issue. Either way, though, the critical point is the same. Something has gone off the rails, and that something isn't the ordinary citizens who must live in circumstances and neighborhoods where the average ACLU litigator wouldn't want to spend an hour. It is, as Meares and Kahan say, the "prevailing understanding of rights," as fashioned in the 1960s.
This prevalent view is that inner-city African-Americans need to be protected from government, especially the police. I admit that I held this view myself for a while. A wake-up call for me was hearing philosopher Cornel West insist that the overtaking of the inner-city black community by drugs and gangs pointed to malign neglect by civic authorities, including the failure to provide the protection from violence afforded routinely to white citizens. African-Americans are beset not only by episodes of "police brutality" but also by the widespread defection of civic authorities from hands-on concern for, and protection of, the African-American community. Meares and Kahan point out that this "toleration"-not-so-benign neglect-"helped to accelerate urban decay" and to bring about the situation we know all too well today.
At the heart of this supposedly liberal attitude lay deep suspicion of community or plural communities. That suspicion persists. Whenever I give a talk invoking the importance of strong, sturdy, viable communities and institutions, I inevitably get a question suggesting that I want the Ku Klux Klan to run amok (or the Montana Militia, or whatever), and that somehow my position provides no remedy for that. The logic is a kind of Gresham's law of politics and social life: bad community drives out good. It presumes that I would agree that the Klan or the Militia are serving to help constitute the basis of sturdy democratic community-which is absurd. It presumes that I want to repeal the Bill of Rights and federal law enforcement, which is equally absurd. The more interesting question is: why the suspicion of communities and the self-constitution of citizens? Why the lurking fear that somehow citizens cannot, or will not, "get it right"? This is where the ACLU displays liberal condescension so consistently and troublingly.
Locked into a position that has become a frozen ideology-unable, it seems, to rethink itself as any lively, decent, and, I would argue, liberal effort can and must-the ACLU becomes the tormentor of those it claims to serve. In her day, Hannah Arendt skewered the brokers of ideology, accusing them of what she found to be the worst of sins: thoughtlessness. People go on automatic pilot. They feel repeatedly confirmed in their own "idea." And they do careless and horrible things as a result. Why? Because they cannot take on an interlocutor. They begin from a few interlocked premises and everything flows in a kind of terrible "logical" tyranny.
This, it seems, is how the ACLU reacts in many, if not the vast majority, of cases. The upshot: residents of crime-ridden low-income housing and Chicago can be splendidly alone with their rights as they huddle for safety. This is terrible because in civil society we relate not as "autonomous" entities but as members of communities and neighborhoods and crafts and jobs and enterprises. To deny people the necessary preconditions, including fundamental physical safety, to enable them to enact and to display projects that flow from their basic sociality is to deny them their full humanity. The ACLU long ago ceased to think politically and ethically about these matters; indeed, if Meares and Kahan are right-and I think they are-it ceased to think, period. n