Inalienable Rights

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

In these memorable words of the American Declaration of Independence, Thomas Jefferson set forth a fundamental principle upon which democratic government is founded. Governments in a democracy do not grant the fundamental freedoms enumerated by Jefferson; governments are created to protect those freedoms that every individual possesses by virtue of his or her existence.

In their formulation by the Enlightenment philosophers of the 17th and 18th centuries, inalienable rights are God-given natural rights. These rights are not destroyed when civil society is created, and neither society nor government can remove or "alienate" them.

Inalienable rights include freedom of speech and expression, freedom of religion and conscience, freedom of assembly, and the right to equal protection before the law. This is by no means an exhaustive list of the rights that citizens enjoy in a democracy--democratic societies also assert such civil rights as the right to a fair trial--but it does constitute the core rights that any democratic government must uphold. Since they exist independently of government, these rights cannot be legislated away, nor are they subject to the momentary whim of an electoral majority. The First Amendment to the U.S. Constitution, for example, does not give freedom of religion or of the press to the people; it prohibits the Congress from passing any law interfering with freedom of speech, religion, and peaceful assembly. A historian, Leonard Levy, has said, "Individuals may be free when their government is not."

The detailed formulation of laws and procedures concerning these basic human rights will necessarily vary from society to society, but every democracy is charged with the task of building the constitutional, legal, and social structures that will ensure their protection.

Speech
Freedom of speech and expression is the lifeblood of any democracy. To debate and vote, to assemble and protest, to worship, to ensure justice for all--these all rely upon the unrestricted flow of speech and information. Canadian Patrick Wilson, creator of the television series The Struggle for Democracy, observes: "Democracy is communication: people talking to one another about their common problems and forging a common destiny. Before people can govern themselves, they must be free to express themselves."

Citizens of a democracy live with the conviction that through the open exchange of ideas and opinions, truth will eventually win out over falsehood, the values of others will be better understood, areas of compromise more clearly defined, and the path of progress opened. The greater the volume of such exchanges, the better. American essayist E.B. White put it this way: "The press in our free country is reliable and useful not because of its good character but because of its great diversity. As long as there are many owners, each pursuing his own brand of truth, we the people have the opportunity to arrive at the truth and dwell in the light....There is safety in numbers."

In contrast to authoritarian states, democratic governments do not control, dictate, or judge the content of written and verbal speech. Democracy depends upon a literate, knowledgeable citizenry whose access to the broadest possible range of information enables them to participate as fully as possible in the public life of their society. Ignorance breeds apathy. Democracy thrives upon the energy of citizens who are sustained by the unimpeded flow of ideas, data, opinions, and speculation.

But what should the government do in cases where the news media or other organizations abuse freedom of speech with information that, in the opinion of the majority, is false, repugnant, irresponsible, or simply in bad taste? The answer, by and large, is nothing. It is simply not the business of government to judge such matters. In general, the cure for free speech is more free speech. It may seem a paradox, but in the name of free speech, a democracy must sometimes defend the rights of individuals and groups who themselves advocate such non- democratic policies as repressing free speech. Citizens in a democratic society defend this right out of the conviction that, in the end, open debate will lead to greater truth and wiser public actions than if speech and dissent are stifled.

Furthermore, the advocate of free speech argues, the suppression of speech that I find offensive today is potentially a threat to my exercise of free speech tomorrow--which perhaps you or someone else might find offensive. One of the classic defenses of this view is that of English philosopher John Stuart Mill, who argued in his 1859 essay "On Liberty" that all people are harmed when speech is repressed. "If the opinion is right, they are deprived of the opportunity of exchanging error for truth," Mill wrote, "if wrong, they lose...the clearer perception and livelier impression of truth produced by its collision with error."

The corollary to freedom of speech is the right of the people to assemble and peacefully demand that the government hear their grievances. Without this right to gather and be heard, freedom of speech would be devalued. For this reason, freedom of speech is considered closely linked to, if not inseparable from, the right to gather, protest, and demand change. Democratic governments can legitimately regulate the time and place of political rallies and marches to maintain the peace, but they cannot use that authority to suppress protest or to prevent dissident groups from making their voices heard.

Freedom and Faith
Freedom of religion, or more broadly freedom of conscience, means that no person should be required to profess any religion or other belief against his or her desires. Additionally, no one should be punished or penalized in any way because he or she chooses one religion over another or, indeed, opts for no religion at all. The democratic state recognizes that a person's religious faith is a profoundly personal matter.

In a related sense, freedom of religion means that no one can be compelled by government to recognize an official church or faith. Children cannot be compelled to go to a particular religious school, and no one can be required to attend religious services, to pray, or to participate in religious activities against his or her will. By reason of long history or tradition, many democratic nations have officially established churches or religions that receive state support. This fact, however, does not relieve the government of the responsibility for protecting the freedom of individuals whose beliefs differ from that of the officially sanctioned religion.

Citizenship: Rights and Responsibilities
Democracies rest upon the principle that government exists to serve the people; the people do not exist to serve the government. In other words, the people are citizens of the democratic state, not its subjects. While the state protects the rights of its citizens, in return, the citizens give the state their loyalty. Under an authoritarian system, on the other hand, the state, as an entity separate from the society, demands loyalty and service from its people without any reciprocal obligation to secure their consent for its actions.

When citizens in a democracy vote, for example, they are exercising their right and responsibility to determine who shall rule in their name. In an authoritarian state, by contrast, the act of voting serves only to legitimize selections already made by the regime. Voting in such a society involves neither rights nor responsibilities exercised by citizens--only a coerced show of public support for the government.

Similarly, citizens in a democracy enjoy the right to join organizations of their choosing that are independent of government and to participate freely in the public life of their society. At the same time, citizens must accept the responsibility that such participation entails: educating themselves about the issues, demonstrating tolerance in dealing with those holding opposing views, and compromising when necessary to reach agreement.

In an authoritarian state, however, private voluntary groups are few or nonexistent. They do not serve as vehicles for individuals to debate issues or run their own affairs, but only as another arm of the state that holds its subjects in positions of obedience.

Military service provides a different but equally contrasting example of rights and responsibilities in democratic and non-democratic societies. Two different nations may both require a period of peacetime military service by their young men. In the authoritarian state, this obligation is imposed unilaterally. In the democratic state, such a period of military service is a duty that the citizens of the society have undertaken through laws passed by a government they themselves have elected. In each society, peacetime military service may be unwelcome for individuals. But the citizen-soldier in a democracy serves with the knowledge that he is discharging an obligation that his society has freely undertaken. The members of a democratic society, moreover, have it within their power to act collectively and change this obligation: to eliminate mandatory military service and create an all-volunteer army, as the United States and other countries have done; change the period of military service, as happened in Germany; or, as in the case of Switzerland, maintain reserve military service for men as an essential part of citizenship.

Citizenship in these examples entails a broad definition of rights and responsibilities, since they are opposite sides of the same coin. An individual's exercise of his rights is also his responsibility to protect and enhance those rights--for himself and for others. Even citizens of well-established democracies often misunderstand this equation, and too often take advantage of rights while ignoring responsibilities. As political scientist Benjamin Barber notes, "Democracy is often understood as the rule of the majority, and rights are understood more and more as the private possessions of individuals and thus as necessarily antagonistic to majoritarian democracy. But this is to misunderstand both rights and democracy."

It is certainly true that individuals exercise basic, or inalienable, rights--such as freedom of speech, assembly, and religion--which thereby constitute limits on any democratically based government. In this sense, individual rights are a bulwark against abuses of power by the government or a momentary political majority.

But in another sense, rights, like individuals, do not function in isolation. Rights are not the private possession of individuals but exist only insofar as they are recognized by other citizens of the society. The electorate, as the American philosopher Sidney Hook expressed it, is "the ultimate custodian of its own freedom." From this perspective, democratic government, which is elected by and accountable to its citizens, is not the antagonist of individual rights, but their protector. It is to enhance their rights that citizens in a democracy undertake their civic obligations and responsibilities.

Broadly speaking, these responsibilities entail participating in the democratic process to ensure its functioning. At a minimum, citizens should educate themselves about the critical issues confronting their society--if only to vote intelligently for candidates running for high office. Other obligations, such as serving juries in civil or criminal trials, may be required by law, but most are voluntary.

The essence of democratic action is the active, freely chosen participation of its citizens in the public life of their community and nation. Without this broad, sustaining participation, democracy will begin to wither and become the preserve of a small, select number of groups and organizations. But with the active engagement of individuals across the spectrum of society, democracies can weather the inevitable economic and political storms that sweep over every society, without sacrificing the freedoms and rights that they are sworn to uphold.

Active involvement in public life is often narrowly defined as the struggle for political office. But citizen participation in a democratic society is much broader than just taking part in election contests. At the neighborhood or municipal level, citizens may serve on school committees or form community groups, as well as run for local office. At the state, provincial, or national level, citizens can add their voices and pens to the continuing debate over public issues, or they can join political parties, labor unions, or other voluntary organizations. Whatever the level of their contribution, a healthy democracy depends upon the continuing, informed participation of the broad range of its citizens.

Democracy, Diane Ravitch writes, "is a process, a way of living and working together. It is evolutionary, not static. It requires cooperation, compromise, and tolerance among all citizens. Making it work is hard, not easy. Freedom means responsibility, not freedom from responsibility."

Democracy embodies ideals of freedom and self-expression, but it is also clear-eyed about human nature. It does not demand that citizens be universally virtuous, only that they will be responsible. As American theologian Reinhold Niebuhr said: "Man's capacity for justice makes democracy possible, but man's inclination to injustice makes democracy necessary."

Human Rights and Political Goals
As a principle, the protection of basic human rights is accepted widely: It is embodied in written constitutions throughout the world as well as in the Charter of the United Nations and in such international agreements as the Helsinki Final Act (the Conference on Security and Co-operation in Europe--CSCE).

Distinguishing among different categories of rights is another matter. In recent times, there has been a tendency, especially among international organizations, to expand the list of basic human rights. To fundamental freedoms of speech and equal treatment before the law, these groups have added rights to employment, to education, to one's own culture or nationality, and to adequate standards of living.

These are all worthwhile undertakings, but when such entitlements proliferate as rights, they tend to devalue the meaning of basic civic and human rights. Furthermore, they blur the distinction between rights that all individuals possess and goals toward which individuals, organizations, and governments may reasonably be expected to strive.

Governments protect inalienable rights, such as freedom of speech, through restraint, by limiting their own actions. Funding education, providing health care, or guaranteeing employment demand the opposite: the active involvement of government in promoting certain policies and programs. Adequate health care and educational opportunities should be the birthright of every child. The sad fact is that they are not, and the ability of societies to achieve such goals will vary widely from country to country. By transforming every human aspiration into a right, however, governments run the risk of increasing cynicism and inviting a disregard of all human rights.

THE RULE OF LAW

Equality and the Law
The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, ethnic majority or religious minority, political ally of the state or opponent--all are entitled to equal protection before the law.

The democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, writes constitutional law expert John P. Frank, "Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people."

No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.

Due Process
In every society throughout history, Frank points out, those who administer the criminal justice system hold power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, and been tortured, exiled and executed without legal justification--and often without any formal charges ever being brought. No democratic society can tolerate such abuses.

Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by the state.

What are the essential requirements of due process of law in a democracy?

• No one's home can be broken into and searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police has no place in a democracy.
• No person shall be held under arrest without explicit, written charges that specify the alleged violation. Not only are persons entitled to know the exact nature of the charge against them, they also must be released immediately, under the doctrine known as habeas corpus, if the court finds that the charge is without justification or the arrest is invalid.
• Persons charged with crimes should not be held for protracted periods in prison. They are entitled to a speedy and public trial, and to confront and question their accusers.
• The authorities are required to grant bail, or conditional release, to the accused pending trial if there is little likelihood that the suspect will flee or commit other crimes. "Cruel and unusual" punishment, as determined by the traditions and laws of the society, is prohibited.
• Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self- incrimination must be absolute. As a corollary, the police may not use torture or physical or psychological abuse against suspects under any circumstances. A legal system that bans forced confessions immediately reduces the incentives of the police to use torture, threats, or other forms of abuse to obtain information, since the court will not allow such information to be placed into evidence at the time of trial.
• Persons shall not be subject to double jeopardy; that is, they cannot be charged with the same crime twice. Any person tried by a court and found not guilty can never be charged with that same crime again.
• Because of their potential for abuse by the authorities, so-called ex post facto laws are also proscribed. These are laws made after the fact so that someone can be charged with a crime even though the act was not illegal at the time it occurred.
• Defendants may possess additional protections against coercive acts by the state. In the United States, for example, the accused have a right to a lawyer who represents them in all stages of a criminal proceeding, even if they cannot pay for such legal representation themselves. The police must also inform suspects of their rights at the time of their arrest, including the right to an attorney and the right to remain silent (to avoid self- incrimination).

A common tactic of tyranny is to charge opponents of the government with treason. For this reason, the crime of treason must be carefully limited in definition so that it cannot be used as a weapon to stifle criticism of the government.

None of these restrictions means that the state lacks the necessary power to enforce the law and punish offenders. On the contrary, the criminal justice system in a democratic society will be effective to the degree that its administration is judged by the population to be fair and protective of individual rights, as well as of the public interest.

Judges may be either appointed or elected to office, and hold office for specified terms or for life. However they are chosen, it is vital that they be independent of the nation's political authority to ensure their impartiality. Judges cannot be removed for trivial or merely political reasons, but only for serious crimes or misdeeds--and then only through a formal procedure, such as impeachment (the bringing of charges) and trial in the legislature.

Constitutions
The rock upon which a democratic government rests is its constitution--the formal statement of its fundamental obligations, limitations, procedures, and institutions. The constitution of the country is the supreme law of the land, and all citizens, prime ministers to peasants alike, are subject to its provisions. At a minimum, the constitution, which is usually codified in a single written document, establishes the authority of the national government, provides guarantees for fundamental human rights, and sets forth the government's basic operating procedures.

Despite their enduring, monumental qualities, constitutions must be capable of change and adaptation if they are to be more than admirable fossils. The world's oldest written constitution, that of the United States, consists of seven brief articles and 27 amendments. This written document, however, is only the foundation for a vast structure of judicial decisions, statutes, presidential actions, and traditional practices that has been erected over the past 200 years--and kept the U.S. Constitution alive and relevant.

This pattern of constitutional evolution takes place in every democracy. In general, there are two schools of thought about the process of amending, or changing, a nation's constitution. One is to adopt a difficult procedure, requiring many steps and large majorities. As a result, the constitution is changed infrequently, and then only for compelling reasons that receive substantial public support. This is the model of the United States, whose Constitution is a brief statement of the general principles, powers, and limits of government, together with a more specific listing of duties, procedures, and, in the Bill of Rights, the fundamental rights of individual citizens.

A much simpler method of amendment, which many nations use, is to provide that any amendment may be adopted by approval of the legislature and passed by the voters at the next election. Constitutions able to be changed in this fashion can be quite lengthy, with specific provisions that differ little from the general body of legislation.

No constitution like America's, written in the 18th century, could have survived unchanged into the late 20th century. Similarly, no constitution in force today will survive into the next century without the capacity for change--while still holding fast to principles of individual rights, due process, and government through the consent of the governed.

ELECTIONS

The Benchmark of Elections
Elections are the central institution of democratic representative governments. Why? Because, in a democracy, the authority of the government derives solely from the consent of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections.

All modern democracies hold elections, but not all elections are democratic. Right-wing dictatorships, Marxist regimes, and single-party governments also stage elections to give their rule the aura of legitimacy. In such elections, there may be only one candidate or a list of candidates, with no alternative choices. Such elections may offer several candidates for each office, but ensure through intimidation or rigging that only the government-approved candidate is chosen. Other elections may offer genuine choices--but only within the incumbent party. These are not democratic elections.

What Are Democratic Elections?
Jeane Kirkpatrick, scholar and former U.S. ambassador to the United Nations, has offered this definition: "Democratic elections are not merely symbolic....They are competitive, periodic, inclusive, definitive elections in which the chief decision-makers in a government are selected by citizens who enjoy broad freedom to criticize government, to publish their criticism and to present alternatives."

What do Kirkpatrick's criteria mean? Democratic elections are competitive. Opposition parties and candidates must enjoy the freedom of speech, assembly, and movement necessary to voice their criticisms of the government openly and to bring alternative policies and candidates to the voters. Simply permitting the opposition access to the ballot is not enough. Elections in which the opposition is barred from the airwaves, has its rallies harassed or its newspapers censored, are not democratic. The party in power may enjoy the advantages of incumbency, but the rules and conduct of the election contest must be fair.

Democratic elections are periodic. Democracies do not elect dictators or presidents-for-life. Elected officials are accountable to the people, and they must return to the voters at prescribed intervals to seek their mandate to continue in office. This means that officials in a democracy must accept the risk of being voted out of office. The one exception is judges who, to insulate them against popular pressure and help ensure their impartiality, may be appointed for life and removed only for serious improprieties.

Democratic elections are inclusive. The definition of citizen and voter must be large enough to include a large proportion of the adult population. A government chosen by a small, exclusive group is not a democracy--no matter how democratic its internal workings may appear. One of the great dramas of democracy throughout history has been the struggle of excluded groups--whether racial, ethnic, or religious minorities, or women--to win full citizenship, and with it the right to vote and hold office. In the United States, for example, only white male property holders enjoyed the right to elect and be elected when the Constitution was signed in 1787. The property qualification disappeared by the early 19th century, and women won the right to vote in 1920. Black Americans, however, did not enjoy full voting rights in the southern United States until the civil rights movement of the 1960s. And finally, in 1971, younger citizens were given the right to vote when the United States lowered the voting age from 21 to 18.

Democratic elections are definitive. They determine the leadership of the government. Subject to the laws and constitution of the country, popularly elected representatives hold the reins of power. They are not simply figureheads or symbolic leaders.

Finally, democratic elections are not limited to selecting candidates. Voters can also be asked to decide policy issues directly through referendums and initiatives that are placed on the ballot. In the United States, for example, state legislatures can decide to "refer," or place, an issue directly before the voters. In the case of an initiative, citizens themselves can gather a prescribed number of signatures (usually a percentage of the number of registered voters in that state) and require that an issue be placed on the next ballot--even over the objections of the state legislature or governor. In a state such as California, voters confront dozens of legislative initiatives each time they vote--on issues ranging from environmental pollution to automobile insurance costs.

Democratic Ethics and the Loyal Opposition
Democracies thrive on openness and accountability, with one very important exception: the act of voting itself. To cast a free ballot and minimize the opportunity for intimidation, voters in a democracy must be permitted to cast their ballots in secret. At the same time, the protection of the ballot box and tallying of vote totals must be conducted as openly as possible, so that citizens are confident that the results are accurate and that the government does, indeed, rest upon their "consent."

One of the most difficult concepts for some to accept, especially in nations where the transition of power has historically taken place at the point of a gun, is that of the "loyal opposition." This idea is a vital one, however. It means, in essence, that all sides in a democracy share a common commitment to its basic values. Political competitors don't necessarily have to like each other, but they must tolerate one another and acknowledge that each has a legitimate and important role to play. Moreover, the ground rules of the society must encourage tolerance and civility in public debate.

When the election is over, the losers accept the judgment of the voters. If the incumbent party loses, it turns over power peacefully. No matter who wins, both sides agree to cooperate in solving the common problems of the society. The losers, now in the political opposition, know that they will not lose their lives or go to jail. On the contrary, the opposition, whether it consists of one party or many, can continue to participate in public life with the knowledge that its role is essential in any democracy worthy of the name. They are loyal not to the specific policies of the government, but to the fundamental legitimacy of the state and to the democratic process itself.

As the next election comes around, opposition parties will again have the opportunity to compete for power. In addition, a pluralistic society, one in which the reach of government is limited, tends to offer election losers alternatives for public service outside government. Those defeated at the polls may choose to continue as a formal opposition party, but they may also decide to participate in the wider political process and debate through writing, teaching, or joining one of many private organizations concerned with public policy issues. Democratic elections, after all, are not a fight for survival but a competition to serve.

Date: 2015-04-20; view: 1271