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 Carter’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.
The 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 regulation 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 vindicate 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.