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Stephen Breyer And The Rights of Man

Contrary to popular belief, the political differences between the parties in this country are anything but superficial.  They are not mere differences about policy preferences or disputes over the best means to achieve a happy and prosperous society.  Rather, they are deep and fundamental discrepancies, pitting two radically disparate visions of man and his role in the universe against one another.

The bottom line then is that the current severity of our broad political conflicts will not soon abate.  It is not a matter of one side needing to make better arguments, in order to convince the other.  It is a matter of neither side having any desire to hear the other side’s arguments at all, largely because the gulf between the two is so great and so structural as to render any such arguments meaningless.

A large part of this divide is manifest in the conflict between what we may call “competing moral systems,” essentially the pre-modern Judeo-Christian tradition on the one hand and the post-modern, relativist scheme on the other.  In practical terms, this is the heart of what we know as the “culture wars,” those battles focusing on that which constitutes good and evil, right and wrong, and acceptable and unacceptable behavior in contemporary Western Civilization.

There is another component to this divide, however, one that deals more with the nature of civil society, its origins, and its impact on the way in which we, as human animals, govern ourselves.  This component of the great divide is characterized by questions such as:  Who shall rule?  And how?  By what means should decisions be made?  What rights do the people enjoy as a group or individually?  Does the government itself have any rights?  How should resources be allocated?  And by whom?
Two weeks ago, we were given a rather unique and telling glimpse at the relevance of this second component of the divide, in the form of Justice Stephen Breyer’s dissenting opinion in the case of McCutcheon v. Federal Election CommissionMcCutcheon is a campaign finance case, and like many such cases, was decided on free speech grounds.  In his dissent, Breyer argued that freedom of speech is not, as the majority claims, an “inalienable” right, but rather a conditional and collective right.  Specifically, Breyer wrote:

Speech does not exist in a vacuum. Rather, political communication seeks to secure government action.  A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives….

Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

Here, Breyer declares a collective restraint on the individual right to free speech.  The collective of the people – the majority, if you will – has, in Breyer’s interpretation, a vested interest in restricting the otherwise sacrosanct individual right to speech.  And the reason for this is to ensure that “the will of the people” be done.

Breyer tries gamely to connect this conception to the Constitution and to the views of the Founding Fathers, as have the various pundits who agree with him politically.  But the fact of the matter is that they are all attempting to square the circle.

The Founders, by and large, embraced a social contract theory that emphasized the primacy of natural rights, a tradition passed down from Seneca and Cicero through Aquinas to Locke.  Breyer, by contrast, espouses a notion of the social contract that is nearly precisely antithetical to that of the Founders, a tradition that traces its roots to Jean-Jacques Rousseau.  This vision of the social contract formed the foundation of nearly every leftist movement over the past two-and-a-half centuries, including the American Progressives, the forerunners of our contemporary liberals.  Whereas the Founders believed that man’s rights are endowed upon man by his “Creator” and are therefore inalienable and must be respected by any legitimate authority, the Rousseau-ian Progressives believed that the state exists to guarantee liberty and that true liberty can only be expressed and understood in the will of the people, which is to say the “collective will.”

These two versions of the social contract are inimical to one another, which is to say that the conceptions of man, his rights, and the role of the state that spring from them are irreconcilable.

Stephen Breyer and his fellow liberals don’t just disagree with John Roberts and his fellow conservatives about the role of money in elections.  They disagree about the very nature of civil society and the rights of man.  And for all intents and purposes, Breyer allowed as much in his McCutcheon opinion.

Fortunately, Breyer’s opinion was not accepted by the majority of the court.  We say fortunately because it is a prescription for mob rule.  And in a society in which Christian principles are under daily assault, this could be a prescription for Milton’s “Chaos and old Night.”