My Brother’s Keeper?

I have always been impressed by (and, when on the receiving end, been infuriated by) the skillful use of rhetoric.  I enjoy watching the delicate art of assuming the unprovable and deflecting the indefensible.

One of the most adroit examples of rhetorical sleight of hand to be found is in the Declaration of Independence.  Jefferson blithely declares, “We hold these truths to be self-evident…” and goes on to state that “all men are created equal,” an assertion that few in his own time would have acknowledged as anything like “self-evident.”  He sugars that pill by ending with an innocuous list of “life, liberty and the pursuit of happiness,” items few would be comfortable challenging.

This is neat enough.  But his real mastery is shown is the next paragraph.  Having slipped a dubious assertion is as his premise, he goes on to redefine the origin of governments as being based upon those same “rights.”

He says, “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Wow!  In one single sentence, he manages to, 1)  Dismiss the Divine Right of Kings, 2)  Install the idea that all powers are inherently resident in the people and only “consented” to governments, and, 3)  Imply that therefore some form of democracy is the only legitimate model of government.

I don’t know of another case where such clearly revolutionary concepts are so deftly transformed into sounding like the voice of sweet reason.  When Jefferson penned those words, there was not a single case on record wherein the state (however embodied) was not understood to be sovereign and have its own inherent rights.  Majestically ignoring all such precedents, Jefferson declares that all rights originate in the people and are only ceded to the state.

So there!

Jefferson was certainly not expressing the settled consensus of his fellow Americans circa 1776.  However, his prose so concisely expressed this particular viewpoint that public opinion evolved until, by 1791, Amendment IX of the Bill Of Rights would simply say, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” while Amendment X would say, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the states respectively, or to the people.”

To really appreciate just how radical a departure from custom Jefferson’s views were in his own time, remember that this was an age where a British soldier who injured himself could be punished — For damaging Royal property!

These extremes mark the range of governments that persist to this day:  On one pole, the citizen is a chattel of the state and must be prepared to defend, on demand, the right to take some action (while the state has to justify nothing).  On the other the state derives its power from the citizen and must be prepared to establish a “compelling reason” for it to intervene in any citizen’s free exercise.

America, from its beginnings, has had a written contract that places us solidly in the camp where the state must justify its interventions.  We see our society as a collection of free individuals where our basic rule of citizen to citizen conduct is, “Your right to swing your fist stops at the end of my nose” and where the state must justify any interference it wants to make.  If we had adhered to that inheritance in its naked purity, we would today find ourselves in a very different legal world than where we actually reside.

The difference between what is in the written contract and what exists as our reality seems to me to lie in a second, unwritten contract we also accept as having entered into:  That of a moral community where each member is in some part responsible for the behavior of each other member.  This moral commitment is our other inheritance, the one from what we like to call our “Puritan” beginnings.

In the Jeffersonian logic, there can be no “victimless” crimes.  Acts which cause no harm between members of the body politic have no place in the laws of a purely Jeffersonian democracy and the government cannot feasibly show any “compelling interest” that would justify any action on its part.

In a moral community, on the other hand, a single, private act of prostitution is at once an offense against the morality of (at least) two individuals and simultaneously an attack upon the community as a whole.  It is thus everybody’s business.

I believe that it is only by examining these two strands and how they are woven together into our legal system that we can understand why laws against suicide can be both recognized as logical absurdities and enjoy substantial public support.

Whether or not we have a Right to Die is a question that can only be addressed by answering another, more basic question:  “Whose Life Is It, Anyway?”

To which simple question both the American people and the American system of justice insist on giving two answers:

First, it is clear that your life is your most intimate and private possession and no other citizen has the right to interfere with your free exercise of it as long as you do not harm others.  (Collaterally, someone who assists you in carrying out your wishes on the matter must likewise be exempt from interference.)

Second, I am my brother’s keeper and my brother’s arbitrary termination of God’s gift before His time cannot fail to be, at least partly, my responsibility.  Every man’s death diminishes me and cannot help but be my business.

I can’t offer a solution to this dilemma.  I merely note, in passing, that our maddening way of affirming two mutually contradictory visions on alternate Tuesdays is really perfectly logical.

It all depends on which part of our heritage has the floor at the moment.

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