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Our rights are always up for a vote

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There are two candidates for school board on my ballot who believe books should be banned.

Neither Brooke nor Colleen Westlake, candidates for Washoe County School Board, went into any specifics about which books they wanted to see banned. They also didn’t explain under what statutory authority the school board could or would ban a book (there isn’t one because, per existing board policy and administrative regulations, all books and other media used in Washoe County schools must be selected and approved before they’re used in the classroom or school library — in other words, all books are “banned,” inasmuch as Washoe County schools aren’t permitted to purchase and distribute them, by default).

Even so, their relatively forthright honesty in their belief that the government has a legitimate role in deciding what people are permitted to read — their circumspection regarding the details of that role notwithstanding — serves as yet another unwelcome reminder that many of the rights we were taught were politically untouchable in school have, in fact, been politically touchable all along. This, with the benefit of hindsight, shouldn’t be surprising. Every right defined in the Bill of Rights — that hallowed set of 10 amendments which should implicitly remind everyone that the Constitution was so “divinely ordained” upon its construction, it required immediate revisions before Americans would accept it — has always been open to political pressure and modification.

The First Amendment, which now protects this publication’s freedoms of speech and press, originally only protected Americans against congressional intrusion against those rights, and even then only dimly. States and local jurisdictions could and routinely did infringe on every right listed in that amendment, including the freedom of religion, for over a century.

New Hampshire, for example, required elected officers to be “of the protestant religion” until 1877. Even the federal government wasn’t originally reined in much by the First Amendment — less than a decade after the adoption of the First Amendment, President John Adams signed the Alien and Sedition Acts, which criminalized making ‘false statements’ against the government of the United States. The expansive view of freedom of speech we’re currently familiar with is a modern invention, one which didn’t begin to emerge until Gitlow v. New York established that the prohibitions against congressional lawmaking defined in the First Amendment applied to the states through the Fourteenth Amendment. Gitlow, meanwhile, was only the first of many steps which eventually led to our modern understanding of freedom of speech and the press — it took another fifty years for the Supreme Court to protect the right to wear profanity on a jacket in public.

The rest of the rights listed in the Bill of Rights, meanwhile, have endured a similarly flexible political interpretation through the years. The Second Amendment wasn’t interpreted as providing an individual right to bear arms until District of Columbia v. Heller in 2008, and wasn’t incorporated as binding against state and local governments until McDonald v. Chicago in 2010. The Third Amendment, which prohibits soldiers from occupying your living room without your consent, doesn’t prohibit the military from taking your living room if they need more land for a bombing range — just ask anyone who lived in Dixie Valley before Fallon Naval Air Station turned the place into an electronic warfare range. As for the protections offered by the Fourth through Tenth amendments, the less said the better — the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”), didn’t meaningfully stop a single state or federal government from restricting anything until 1965 when the Supreme Court ruled in Griswold v. Connecticut that the Constitution protected a fundamental right to privacy even though the word “privacy” isn’t used once in the entire document.

To be clear, the internet is a modern invention — without it, writing, publishing and reading this column would be much more challenging. Modern inventions are great, actually, and we should look forward to more of them. As for the rest of our rights, I’m not particularly interested in whether they’re “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty,” to quote from Justice Alito’s leaked opinion which may overturn Roe v. Wade. Like many Nevadans, when I read the claim that:

These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

My immediate thought was that’s right — our right to autonomy proves we do, in fact, have fundamental rights to illicit drug use, prostitution, and the like, and I’m grateful to live in a state which recognizes those rights, more or less. Of course, I’ll be the first to admit I don’t exercise any of those particular rights at all — my lifestyle is actually quite boring. Even so, it’s reassuring to know that’s my fault and not the government’s.

That the recognition of my rights is dependent upon geography, however, raises an uncomfortable observation. Academically and theoretically, yes, to paraphrase from the Declaration of Independence, all people are created equal and are endowed with certain unalienable rights. Sure, according to Enlightenment-era political philosopher John Locke, we can talk about natural law and natural rights — if I write a column and you want to read it, what in nature could possibly justify giving some third party the power to prevent me from sending my column to you? In theory, on paper, neither government nor society at large are allowed to infringe upon those rights.

Outside of the classroom and the lecture hall, however, we don’t live in a state of nature, if such a state ever existed in the first place. Asserting that one has a right is an assertion that one shouldn’t be coerced against claiming that right. It is not, however, an accurate assessment of whether one couldn’t be coerced against claiming that right.

In Nevada, for example, women have the statutory right to seek an abortion — except when they don’t, at which point Nevada becomes the only state in the union which currently imprisons women for seeking abortions. Statutorily, Nevada’s prosecutors are only allowed to imprison women for having an abortion if their pregnancy is terminated after the 24th week of pregnancy. From a practical standpoint, however, prosecutors would be just as effective at prosecuting that law if it were defined at the fourth week or the 40th week — where the line is drawn is ultimately up to us and what and who we’re willing to either vote for or against.

Rights, then, are best understood as stories we tell ourselves and those who seek to govern us. None of our rights exist by default. We must choose, each and every time we vote and each and every time we participate in civil society, to continue to accept, acknowledge, and defend them. Eternal vigilance, as someone once said (whomever it was, it probably wasn’t Thomas Jefferson), is the price of liberty, but our payment must not just be vigilance against the government. We must also be vigilant against ourselves, as well as those who seek to appeal to us in search of political gain.

If we vote for school board candidates who seek to ban books, sooner or later, books will be banned. There are a lot of institutional barriers and decades of court decisions preventing us from getting our way, but none of those barriers are insurmountable — not if we encourage everyone to pound on them long enough. If we’re persistent enough — if we’re not careful — we’ll get exactly what we ask for.

Be careful what you ask for when you fill out your ballot or walk into the voting booth this month. You just might get it.

David Colborne ran for office twice and served on the executive committees for his state and county Libertarian Party chapters. He is now an IT manager, a registered nonpartisan voter, the father of two sons. You can follow him on Twitter @DavidColborne
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