What American Exceptionalism Actually Means
A response to Justice Ginsburg on positive rights and the Constitution.
February 28, 2012 - 12:00 am
Some three years ago, just a few months into office, President Obama was asked if he believed in American exceptionalism. He replied, “I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.” It was a safe, inoffensive answer, though it left open the obvious retort: If we’re all exceptional, then none of us are exceptional.
Sure, most people around the world are patriotic and proud of their own country. At least they should be. Personally, I prefer it when a foreigner or an immigrant speaks positively — romantically, even — of their home country’s history and culture. It’s attractive. It makes for good listening. It doesn’t offend me at all.
So it is a bit disappointing, this business of framing “American exceptionalism” as some sort of blindly jingoistic chauvinism. As Americans, we shouldn’t be defensive over the notion. This is an exceptional country, we should humbly tell our foreign friends, and it’s exceptional for very specific, measurable, substantive reasons. At the core of all these reasons is the U.S. Constitution.
But Supreme Court Justice Ruth Bader Ginsburg — whose job is to protect the U.S. Constitution — doesn’t seem to think so. Ginsburg got in some hot water recently for telling Egypt’s TV station Al-Hayat that the Egyptian people, who are in the process of creating a new society, should not model their constitution on the American Constitution. “I would not look to the U.S. Constitution,” Ginsburg said, “if I were drafting a constitution in the year 2012.” She continued: “I might look at the constitution of South Africa,” and other more “recent” documents, like Canada’s constitution.
This is a common sentiment amongst so-called progressives: because the U.S. Constitution is “old,” it therefore isn’t applicable enough for modern society. In 2001, Barack Obama, as an Illinois state senator and constitutional law professor, articulated this opinion on a Chicago radio show. “The Supreme Court never ventured into the issues of redistribution of wealth,” said the young Obama, continuing:
The Warren Court… wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… generally, the Constitution is a charter of negative liberties; says what the states can’t do to you, says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.
Obama went on to say in the interview that this was “one of the… tragedies of the civil rights movement,” that we lost focus on “redistributive change.” His views don’t seem to have changed much. Just recently, President Obama said to NBC, “Well, it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.”
That’s the difference. That’s the exceptionalism. The United States was founded on the idea that it ought to be difficult to allow the government to “do things on our behalf.” All of the Founders knew — from Washington and Franklin, to Paine and Jefferson, to Henry and Hancock, to John and Sam Adams — that rights must pertain to the individual, not the group, and that they must protect these individuals from the man-made entity we call “government.” The government cannot prevent your right to speech, religion, assembly, and so forth.
This is the philosophical logic for even “controversial” rights, such as the right to bear arms. Man came before government. Why would man create an entity with the authority to disarm him of the means to protect his family? He wouldn’t. He didn’t — at least in this country. “The Constitution preserves the advantage of being armed which Americans possess over the people of almost every other nation (where) the governments are afraid to trust the people with arms,” James Madison once said. “A free people must be armed,” said George Washington, adding, “Firearms are second only to the Constitution in importance… they are the peoples’ liberty’s teeth.” It is no accident that all of the worst tyrannies throughout history — Nazi Germany, Stalin’s USSR, Pol Pot’s Cambodia, Mao’s China, Amin’s Uganda, Saddam’s Iraq, Turkey just before the Armenian genocide, and many others — denied their populations the “negative right” to bear arms.
Negative rights do not come from government. They come from nature. They exist independent of government. They would continue to exist even if the government were to evaporate out of existence. The government’s job is to protect these natural rights, not to bestow them.
Of course, not everyone around the world views liberty in this manner. The South African Constitution provides “positive rights” like the “right to housing,” prompting Cass Sunstein — White House legal scholar and regulations czar — to call it “the most admirable constitution in the history of the world.” But suppose a South African citizen doesn’t have a home. They can claim a constitutional right to one. Therefore, the South African government can claim the authority to compel a South African homeowner to house the homeless. This not only destroys the homeowner’s rights, but it also destroys civil society in that it compels men and women, through the threat of government force, to lend a helping hand to one another. There should be no compulsion in brotherhood. It should be organic. A “positive rights” society undermines this aspect of human solidarity.
President Franklin D. Roosevelt once tried to create a Second Bill of Rights, full of positive rights: the right to a “decent home,” the right to a “decent living,” the right to “adequate food,” and so forth. A decent home, a decent living, and adequate food are all good things; things we should be free to pursue (what we Americans call “the pursuit of happiness”).
But all of these things, if guaranteed to us by the government as a positive right, would require the violation of someone else’s liberty. Who is to determine what is and isn’t a decent living? Who is to determine what is and isn’t adequate food? Employees would tell their bosses — consumers would tell providers — what they were getting wasn’t “decent” and “adequate” enough. They want more for free, they would say, and standing behind them would be armed “enforcers of rights” from the government. Such a society would devolve into a Hobbesian dystopia within months. It’d look a lot like Africa.
For instance, should a doctor be forced to perform surgery for free? Maybe he should do so of his own volition (and many doctors do, in fact, work pro bono for people without insurance). But if the doctor is compelled to work for free, he may go somewhere else. In short, the government cannot create anything; it can only allocate or “redistribute” it.
We are seeing the same debate today with the contraception controversy. The issue is not contraception but the forced financing of contraception. The government is violating a negative right (the religious freedom of Catholics) and imposing a positive right (mandated subsidization of contraception). These two violations of liberty are equal in consequence. Should the government force kosher delis to offer non-kosher ham on their menu? Of course not. Non-kosher customers have no positive right to ham sandwiches. As Sheldon Richman explains, “the fulfillment of positive rights requires that other people act affirmatively even if they don’t want to… if one person’s freedom depends on the infringement of someone else’s freedom, the first claim is illegitimate.” To contend otherwise is to oppose the principle of equality.
Frédéric Bastiat, the great 19th century French philosopher, once wrote of negative and positive rights like so: “These two functions of the law contradict each other. We must choose between them. A citizen cannot at the same time be free and not free….It is quite impossible for me to conceive of fraternity as legally enforced, without liberty being legally destroyed, and justice being legally trampled underfoot.”
Positive rights aren’t “progressive.” They’re regressive. They’re the oldest idea in legal history. The negative liberties of the Founders — the intellectual revolution of 1776 — was real progress, an exceptional diversion from the normal trajectory of political theory. Our adherence to these principles, when and where we do adhere, is progressive and exceptional.
The Constitution does not enslave us to 18th century ethics. It does not forbid the future. The Constitution is a dictionary with which we should define, a prism through which we may view, individual liberty, and protect it, come what the future may bring. That the future may bring indefinite detention of American citizens and 30,000 surveillance drones over American skies only underscores the importance of the Constitution.
This is how American leaders ought to speak to the world. The world would appreciate such honesty, not recoil from it. Our exceptionalism is not genetic. We are an imperfect country. But our birth song, the Constitution, and our founding principles define liberty much differently than all other democratic republics throughout human history.