A Response to the Primary Right

Jeff Pierce

In his post on the Primary Right, Carter Dillard equates the right to be let alone with the right to be alone, as in, utterly and completely alone.  Up PR1Carter’s sleeve hides an unspoken premise resembling something like this: the influence of other human beings, however minor, spoils my inalienable right to be ruggedly individual.

I characterize his conception of freedom as rugged individualism because the right to be alone feels unmistakably American.  Thoreau is lurking there, skipping stones with Herbert Hoover and Paul Ryan.  To call the right “primary” suggests it’s universal.  But if a Tembu South African or a Tembé Brazilian failed to recognize herself in this concept, the right to be alone is neither universal nor primary.

PR3The right to be alone is distinctly American for another reason: Carter extracts it from a dissenting opinion Justice Louis Brandeis wrote in 1928.  This is the same Louis Brandeis who, while yet an attorney in 1890, sowed within American jurisprudence an entirely novel right when he published, with Samuel Warren, “The Right to Privacy” in the Harvard Law Review.

In Olmstead v. United States, the Supreme Court declined to apply the exclusionary rule to evidence prohibition agents acquired by bugging the phones of suspected bootleggers.  In dissent, Brandeis harvested from the bench in 1928 the fruits he had planted in 1890: “[The Framers] conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”  Brandeis thus construed the right to privacy exclusively in relation to the government, from which a right to be let alone from all human beings doesn’t automatically flow.

 That we inhabit a democracy fails to banish the daylight between private and public actors.  The state may kill combatants abroad and convicts at home, but civilians may never employ murder to advance their private interests.  Similarly, the state may grab my property to build its highway, but my neighbor can’t annex my backyard to build his pool.  Conversely, while the Boy Scouts can exclude gays, the military cannot, and while the Catholic Church may refuse to ordain women, the Senate cannot refuse to swear them in.  So I can enforce my property rights against my neighbor more successfully than against the government, and I can enforce my right to equal protection against the government more successfully than against my neighbor.

 That is to say, my right to be free of government influence (keep your ears out of my phone and your eyes out of my bedroom) may differ from my right to be free of my neighbor’s influence (alas, go ahead and sully my view with your home extension so long as you obtain the proper permits).

Even assuming Brandeis’ right applies against public and private actors alike, the primary right dissolves on its own terms, as Joe observers (Feb. 21).  We secure the ability to exit political association only under two conditions.  First, since all land already “belongs” to nation-states (excepting a small slice of Antarctica and a still smaller slice of North Africa), someone must donate these wild sanctuaries into which flee the refugees of the social contract.  Second, once donated, someone must administer them, for if the nonhuman world requires preservation, then it requires regulation and enforcement, and if PR5regulation and enforcement, then political association.

Calling the primary right an “ideal,” to be balanced against competing rights, inadequately answers Joe’s complaint.  Political non-association requires stateless places.  That’s not merely politically infeasible, it’s also (in light of their creation, regulation, and enforcement) logically impossible.  Logical impossibility – “there’s no such thing as freedom from political association” – is entirely distinct from political impracticality – “we prefer to retain our bailiwick because oil lies beneath.”

It’s logically impossible in another way, too: balancing the primary right against competing rights implies judicial review, and judicial review requires political association.  Absent third party standing, those rugged individuals who sallied forth to live deliberately will have to return, upon finding the wilderness spoiled, to appear in court, revoking the right they pursued to PR2vindicate the right they revoked.

As far as protecting species goes, a right to wilderness doesn’t amount to a right to complete biodiversity.  Carter argues that if freedom means being let alone, and if being let alone means escaping human influence, then escaping human influence means preserving wilderness free of habitat degradation and species disruption.  But that outcome depends entirely on the standard the primary right demands.

Imagine that climate change has extinguished a single ragweed, and so also the lone chigger that hid upon it.  If Thoreau were ignorant of both their prior existence and their subsequent extinction, has his primary right been violated?  If yes, the standard is objective, even thought the right is entirely premised on subjectivity (Thoreau wants to be let alone).  If no, the standard is subjective, and its enforcement requires the preservation not of biodiversity but only the experience of human absence (Thoreau wants to feel he has been let alone).  If the latter, the primary right fails as a meaningful environmental ethos everywhere that rugged individuals are superior survivalists but lousy taxonomists.

Finally, Carter tips his cards (Feb. 26, to Joe’s “Point 4”) when he suggests that, among other human rights, the right to have children must be weighed against the primary right.  I would caution against enlisting the primary right to restrict overpopulation.  Recall that the right to be let alone is one definition of privacy.  Then consider how much of our substantive due process jurisprudence defining privacy emerges from cases about reproductive rights.  It would be ironic if a right originally conceived to protect individuals from government interference were eventually recruited to grant the government a free pass back into the bedroom, something like invoking the Fourteenth Amendment to forbid affirmative action.

Carter will argue that the reproductive rights cases reinforce, rather than undermine, the right to be let alone, since they stand not for the right to have a child but only for the right not to have a child.  Besides, he will say, the Court has upheld the right of government to sterilize “imbeciles,” Buck v. Bell (1927), and the right of government to cap welfare grants irrespective of family size, Dandrige v. Williams (1970).

Considering Douglas’ holding in arguably the most famous reproductive rights case, Griswold v. Connecticut (1965) – that “penumbras” and “emanations” encircle the Bill of Rights, and that “peripheral rights” are necessary to secure “specific rights” – I remain unconvinced that privacy has nothing to say about a right to procreate.

Wherever the right to procreate may be found in law, it will likely persist as a matter of policy.  No member of the free world can willingly follow China down the path of its disastrous one-child policy.  Enforcing that policy has involved repugnant authoritarianism, including forced late-term abortions in which fetuses as old as seven months are killed in the womb and then, almost fully formed, still-birthed.

But this family-planning policy has failed not only because its implementation has required state-sponsored domestic terror.  It has also failed, well, as a matter of policy.  Like many state restrictions on liberty, this coat spreads unevenly: it has disproportionately affected the poor, who lack the funds and the connections to evade its reach (whether lawfully or unlawfully), and while it has been imposed harshly on city folk, for many rural farmers it’s life as usual.  Finally, the one-child policy has given China new problems, including childless parents, an insufficient labor force, and a collapsing tax base.

Notwithstanding its worrisome invasions on privacy and liberty, strictly as a matter of policy any coercive program of family-planning that produces problems such as these – with the federal government in sequestration, the federal deficit seemingly beyond repair, Social Security already in collapse, and European economies on the brink of ruin – will likely prove unwelcome here.

That we would invite such a policy is even less likely considering that it would exist, in the scheme of the primary right, only in service to those exceptional few who actually wished to be alone, utterly and complete alone – those few Alexander Supertramps who desire only wild company, and those fewer still who can uphold a backcountry ethos sufficient to render them eligible, vis-à-vis the needs of competing rugged individualists, for such utter and complete aloneness.

However idyllic his vision of “city-states awash in a sea of nature” might be, I’m not yet persuaded that Carter has articulated, in the primary right, a platform that will get us there.

4 Responses

  1. Excellent post.

    3 cavils 1)2nd paragraph: As Carter noted in response to something I wrote, a right is not invalidated by the failure of some or even all people to recognize it. If it is a right, it exists independently of people’s attitudes. For example, many tribes–probably most–also don’t recognize the right of women to anything approaching equal moral consideration. My understanding is that the universality of this or any other right is moral rather than empirical and doesn’t refer to universal acceptance.

    (2)I know the bulk of your argument doesn’t depend on what Brandeis said, but you do outline B’s views to substantiate your case. Maybe because I’m not a lawyer and have no legal knowledge(and frankly, little reverence for legal sanctities), my immediate reaction to this section was, “Who cares what B said. It’s very interesting as history, but needn’t be used as any kind of touchstone. Unlike jurisprudence, moral reasoning needn’t defer to precedents.” Carter’s theory may have been inspired by B’s thoughts but isn’t weakened by moving beyond them.

    (3)Subjective/objective. I wander if the apparent contradiction can be resolved by suggesting that Thoreau doesn’t just want to feel that he is alone (i.e. to be free of human influence) but actually and objectively to BE alone. I’ll take a detour to my point via the ludicrous. If the only thing involved in this right is the subjective sense of being alone (rather than an objective state of affairs), it should be possible to respect the right by hooking up an unwitting Thoreau to a Nozick fun machine ( or whatever the thing is called) before he sets off, and to program it to simulate an unspoilt wilderness. Thoreau will be none the wiser. Or take the example of the right (assuming it is that) to bodily integrity. Suppose I genetically engineer a bunch of kids to be born with one arm. I put them on a secluded island where they form a society of one-armed people and have no knowledge of normal human anatomy. They spontaneously develop a doctrine of rights enshrining the right of bodily integrity. They think they are in full possession of this right, but they’re wrong; that belief is the illusory product of their ignorance. This right, while generated, like all human desires, by a subjective preference, requires us not to adopt the (sometimes) limited vantage point of the rights holders, but the closest thing to omniscience attainable; the operation of the right is not circumscribed by the perspectival deficiencies of those it is meant to protect. Thus, while Thoreau’s primary right is based on a wish, and a wish is of necessity subjective, its fulfillment may require the preservation of objective conditions, including conditions of which he is not aware.

    “The nonhuman world requires preservation.” This and all your other points are very compelling and ingenious. I’d add that to be practically habitable, the wild may also require a good deal of destruction. The proliferation of large predators or otherwise ‘harmful’ species could make the wilderness too wild for all but the most well-armed (or in the case of pathogen-producing species, the most immuno-gifted) of the rugged types. As the practicability of entering the wild declined, the primary right would recede farther and farther into mere fancy. The preservation of the wild as a locus of the primary right may therefore require not only benignly marginal maintenance but mass slaughter. (I have in mind something like the scenes depicted at the end of “Robinson Crusoe”, a book I never think about without shuddering revulsion. There are wolves, wolves, wolves everywhere. RC and Friday kill, kill, kill, torture and kill with raucous joy.) Of course at this stage the primary right also becomes self-negating, as its conservationist end is defeated by the eliminationist means used to sustain it.

    The problem arises becasue nature just doesn’t give any thought to accommodating our rights. Many a pristine environment may be way too dangerous or even noxious for all or almost all humans.In such a case, the city-state nestled in a swathe of lush greenery becomes instead a enclave of habitability surrounded by a ring of fiery death. Step outside the social contract, and you’ll be incinerated. Remaining within the social contract therefore becomes a quasi-necessity, and not much of a choice at all. Tame the fire to create the possibility of choice, and you’ve just abolished the line that separated the human from the human-free zone, thereby abolishing choice in an effort to enhance it.

    (I still haven’t read Carter’s full article, so I really shouldn’t be commenting. Time to read…)

  2. Thanks, Joe, for rejoining the conversation. Let me address your remarks in turn, with one initial caveat: Carter himself will be returning to the ring, and he may attempt to substantiate your “cavils” when he does. So long as I hold the conch for the time being, however, let me answer your volley from my corner.

    First, I agree that a right may exist independent of our ability or willingness to recognize or fulfill it. The issue to which I think you’re responding here is my challenge to Carter that his thesis describes a “primary” right. By primary I think Carter means something like most fundamental: that is, the right is primary in the sense that it’s the most important human right. If this were true, then, in a balancing test, all competing rights should be weighed less heavily than this one, so the primary right can be properly vindicated. Or by primary he might mean most original: that is, the right is primary in the sense that it’s chronologically original. If this were true, then all other rights (including the right to life) ultimately derive from this seminal right, and we should treat the right to be let alone as a kind of Rosetta stone when we reflect on the meaning of other rights.

    I characterized the meaning of primary in terms of “universality” because I think that captures the meaning of both most fundamental and most original. My challenge to Carter, framed in that brief comparative query, is that his right can be neither most fundamental nor most original if people refuse to recognize it as such. Their refusal is important here primarily because fulfilling this right, to any useful degree, requires considerable buy-in. If people decline to treat the right as primary, then it will lose in balancing tests, it will lose as an interpreter of other rights, and it will gain no meaningful traction.

    That brings me to your second observation. Maybe my treatment of Brandeis felt a little superfluous. (It wouldn’t be the first time I used more words than the occasion demanded.) But I disagree with you on one important thing: I don’t think Carter is talking about morality at all. He’s talking about a right. Some rights might be based in morality, while other rights might be based in ethics (if you’ll allow the distinction), and still other rights might be based purely in utility, having neither moral nor ethical dimensions.

    In any event, by calling it a “right,” Carter must envision – whether it’s a moral, an ethic, or something else – that it should be vindicated, which is to say realized through the remedial powers of, well, polities. (Recall that this is one of the reasons the primary right dissolves under its own terms.) Carter knows that a widely accepted (if unfulfilled) maxim in American jurisprudence is that for every right there must be a remedy, and that without a remedy there is no right. By choosing to call it a right, Carter has purposefully dragged us out of moral reasoning and into legal or political reasoning.

    Agreed, moral reasoning needn’t – and sometimes shouldn’t – defer to precedent, but since we’re in the land of rights, understanding jurisprudence matters to the degree that it predicts the willingness of a judiciary – or a legislature – to grant a remedy for the primary right. Sure, Carter can move beyond Brandeis, just as Edie Windsor and Kristin Perry recently argued that the Equal Protection Clause protects their right to marry someone of the same sex, even though the Congresses that passed the Fifth and Fourteenth Amendments may not have conceived of equal protection in those terms. But whether equal protection affords the right of same-sex marriage is a question for a judiciary or a legislature, so that it becomes a matter not purely of moral reasoning but of judicial, legislative, or political will.

    To your third point, I appreciate your thought experiments and the way you lay out the subjective nature of a wish and the objective nature of its fulfillment. I know Carter will have something to say on the standard to apply, so mainly I will defer to him. Let me say only that an objective standard will demand the contributions of our most able scientists, contributions already seemingly insufficient in the face of climate change, and may even raise thorny ethical questions about de-extinction.

    Thanks for identifying an additional logical impossibility respecting the conflict between the means and ends. I hinted at that problem when I invoked the “backcountry ethos” necessary to belong to the ranks of the chosen, an ethos that reads something like “leave no trace.” But you may be right: if and when it comes down to a duel between himself and the lions, tigers, and bears, it may be impossible for the rugged individual to leave no trace.

    I can’t claim to be a credible student of Freud, but I think his theory about civilization turns in part on your insight that as human beings we band together to protect ourselves from nature, red in tooth and claw, that everywhere promises to kill us or render us otherwise unhappy. The problem with civilization, as Freud saw it, is that it satisfies some of our instincts (say, our desires for shelter, food, and love) at the cost of repressing others (say, our desires for incest, cannibalism, and murder). (That’s Freud, not me.) Carter’s thesis hopes to preserve enough wilderness for those “discontents” who feel that the costs of civilization outweigh its benefits, perhaps even at some sacrifice to people like you and me, who agree that the benefits generally outweigh the costs.

    Maybe Carter envisions preserving wilderness not for full-time refugees of the social contract – since that might mean certain incineration, as you put it – but merely enough that any who wish might make occasional forays into it, to recharge their moral batteries, as the Romantics would put it. But if that’s the case, we’re hardly talking about anything more demanding than our National Parks System, which again fails the riddle of political non-association.

    By now we’ve surely wounded enough straw men that Carter is pawing the earth like a bull before a charge.

  3. 2 final thoughts before I retire. If the primary right is meant to have as much significance as you suggest, it should ( as you also suggest) often, if not always, outweigh all sorts of competing rights. This may raise serious problems when it comes to resource allocation.

    Say a land is naturally divided between an inhabitable and an uninhabitable region. One can think of a river surrounded by desert or a salubrious mountain surrounded by tse-tse fly infested lowlands.etc The city-state will naturally want to appropriate the promising area and leave the wasteland for the loners. But in doing so, it will hardly be honoring the primacy of the primary right. Proper respect for the primary right would require the state to exclude its citizens from a substantial part of the best land for possible use by civilization’s discontents. A state that takes all the good land will have effectively turned what is supposed to be a voluntary contractual association into a deal you can’t refuse. OTOH, respecting the right under conditions of resource scarcity would require truly awe-inspiring self-sacrifice (imagine NOT settling along half the course of a river). To make the sacrifice even more arduous, one can imagine a situation in which an incredibly self-denying state leaves half a river unused only to find that over 100 years, no one abandons the polis’ nurturing embrace. To show their commitment–to prove a theoretical point– the thirsty citizens will still have to continue to forgo the ‘wild’ half of the river. Hard to believe anyone would be interested in maintaining such fantastic levels of asceticism.

    As for Freud etc: I take Carter’s idea at face value. I would repay him poorly for the graciousness he displayed in replying to my inept comments by psychologizing his theory. However, on the larger question of why the impulse exists to shake off the dust of human society, I think 1 of several possible motives might go as follows. We band together becuase doing so gives us great practical advantages, but also because of the deeply rooted need for recognition. However, there is something very, very troubling about this need. For recognition is really just a form of imitation, in the sense that has been brilliantly explained by Rene Girard, and insofar as we are mimes, we can hardly be said to be autonomous beings. So we set off, determi ned to be authentic and liberate ourselves from the multiplying tangles of imitativeness or mediation. The trouble is that no action can be authentic which is designed to exemplify a theory of authenticity. Going into the wild to be self-determining is itself a well-established literary topos. Thus , we lose the freedom with which it beckons us in the very act of mimetically enacting it. I am no more ‘free’ when I imitate , say Thoreau, than when I fall under the spell of a Nike commercial.

  4. There are no two sides to this argument. It is cyclical problem because human population growth is not static and the Earth’s mass is. Many, humans desire to be alone in a wilderness without government. If all people with this desire move to the wilderness there will no longer be a wilderness to move to.

    We’re longing for a “primal right” that never existed. Truthfully, humans are like a virus looking for fertile virgin ground with no immunities, resistance, or competition. It’s pathetic if you think about it.

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