The Sanctity of Dissent
by Paul James Toscano
Liberty and Justice for All
“Liberty and Justice for All” was originally presented as an informal lecture for the Brigham Young University honors program colloquium in February 1987. Each year thereafter, it was updated, rewritten, and redelivered—always informally—until February 1993. The version here is a formal essay drafted from the lecture notes.
[p.39]I wish to discuss eight values of a free and open community which I believe are not only indispensable, but often underrated or misunderstood. These are: (1) paradox and irony, (2) the rule of law, (3) democracy of the majority, (4) inalienable human rights, (5) the containment of power, (6) the common good, (7) spontaneous order, and (8) the restraint on criminalization.
Paradox and Irony
We are citizens of the modern, western world, at the end of the twentieth century, at the end of the second millennium. And we want it all. We want to be rich, and we want leisure. We want power, and we want privacy. We want technological progress, and we want a clean environment.
[p.40]We want freedom, and we want a well-ordered society. What is not clear to many of us is that these wants are paradoxical and that we can achieve some only at the expense of others.
We cannot have a free market that functions within our total control. We cannot have equality and also have privilege. We cannot have freedom and also eliminate indecencies. We cannot have creativity without threatening traditional values. We cannot earn high returns and avoid risk.
Our conflicting desires give rise to many of the palpable tensions of our culture that we cannot relax in spite of all our efforts. This is so because all life and all the disciplines of life are interrelated. This interrelatedness is the source of the paradoxes we encounter in the world. These paradoxes are often manifest to us as insoluble problems arising out of the interplay of such polarities as male and female, passive and active, culture and nature, tradition and progress—even good and evil. These tensions cannot be eliminated without eliminating something essential, something irreplaceable, something of consummate value. In short, they cannot be eliminated without eliminating one or the other of the rival elements that comprise the paradox. Even what may appear to us as merely nominal opposites, such as Republican and Democrat, are often but superficial manifestations of deeper level conflicts that can be stated as questions: Can an economy be free and moral? Can a free people be economically secure? Can social equality be achieved through authoritarianism? Can morality be achieved by the use of force?
Though many such conflicts present themselves to us as polarities, contraries are not always two-sided. They can be many faceted. When they are, we perceive them as ironies: The world is full of these:
• [p.41]The more money we print, the greater the inflation, the less valuable the money, the more money must be printed.
• The more comforts we demand, the greater the supply of technological advancements, the greater the risk to the environment, the greater the risk to our level of comfort.
• The more powerful a nation, the greater its army, the more advanced its weapons, the greater its need for defense, the greater the risk of destruction.
The tensions these ironies embody are, perhaps, even more important than the issues themselves.
Paradox and irony appear to be essential to liberty. For freedom itself seems to arise out of the paradoxical or ironic nature of our being and the tolerance we, as individuals and as communities, demonstrate for the development and expression of the divergent views suggested by the contrarieties of life. Freedom has less to do with arriving at solutions than with struggling with tensions. Freedom is threatened not by problems, but by the denial of paradox and the imposition of the “one, true, final solution.” In a free society whose government is of the people, by the people, and for the people, the dogmas of the quiet past will always be seen to be inadequate to the stormy present. Thus, one of the chief characteristics of a free people is the high estimation placed by its members on rival values and on the effort to solve the unsolvable, attain the unattainable, and reforge the orthodox out of paradox. Practically speaking, free and open societies will always be in a state of flux—revisiting traditions and changing rules [p.42]based on changed interpretations of truth and justice. In short, freedom, paradox, and irony are inseparable.
The Rule of Law
Equally essential and indispensable to a free society is objectivity in the creation of rules of behavior. This concept is expressed as the “rule of law.” The idea of the rule of law is that members of a community should be governed by predetermined, fixed rules of behavior rather than by unpredictable, arbitrary fiat. The power of the “rule of law” concept is derived from the fact that, though the general effect of such rules can be known, the specific effect on particular individuals or groups cannot be foreseen nor can such rules be used to foreordain specific outcomes for specific members of the community. An example of such a rule is the 55-mile-an-hour speed limit. Its legislators foresee only the general effect: vehicular speed will be limited to 55 miles per hour-probably with fairly vigorous enforcement. However, it will not be possible to determine the specific effect such a rule will have on public transportation systems, the environment, or traffic patterns either in the densely-populated, compact townships of the northeast or in the sprawling, open spaces of the far west. Because it does not mandate a specific outcome, this rule is a true law, rather than an order or a command, such as a court order requiring a specific defendant to pay a particular fine.
The benefit of the rule of law is that it protects against arbitrariness. It allows individuals to make specific important decisions within predetermined known rules of the game. In fact, game rules are a good example of genuine objective laws. They are predetermined, they apply to all players, and they do not mandate outcomes. The rules are fixed at the start so that the winners and losers cannot be foreknown. In a game played by arbitrary commands, the game is fixed. The [p.43]rules are not known at the beginning, but the winner is preselected. The rules keep changing to force a certain predetermined outcome. Manipulating the rules undermines the game because it prevents achievement by merit, strategy, or even luck. A fixed game renders all actions pointless because no action will achieve any result other than that willed by those manipulating the ever-changing rules. The will, talents and luck of the players are nullified in favor of the will, talent, and luck of the rule-makers. This is the essence of tyranny.
Democracy of the Majority
The rule of law alone is insufficient to create and maintain an open society. To be truly open, its members must participate in the process of lawmaking. Democracies are limited when they do not allow all adult members to participate equally in the political process. Though most democracies are open societies, this is not always the case. A tyranny of the majority can be as real as a tyranny of the minority. The ancient city states of Greece were governed by limited democracies, as were some of the Italian city states of the Middle Ages. But a democracy limited to the elite is itself limited. It cannot advantage itself of the full range of the experience and knowledge possessed by all its members. This is the recurring problem in all communities in which the many are governed by the few. Eventually ineptitude, inexperience, inbreeding, inability to understand the minute details and operations of the small networks, patterns, and systems that fit together into the larger social fabric expose such communities to destruction, either by conquest from without or by collapse from exhaustion from within.
Democracies of the majority have proved quite successful, over the long term, at structuring and managing complex societies, even if they appear inefficient at mustering a quick [p.44]consensus to accomplish short-term goals. Oligarchies and dictatorships, while immediately efficient, do not seem capable of coping with the political and economic tensions of complex societies over long periods of time.
The strength of a democracy of the majority lies, in part, in the fact that the majority is always in a state of flux. Individuals align themselves differently on different issues. Thus, we might find liberal protestants and Jews aligned in support of the separation of church and state; and conservative Mormons, Protestants, and Catholics aligned against abortion or in favor of the ritual use of peyote by native Americans. This churning of the constituencies comprising the majority increases the larger community’s ability to cope with complexity and political tension. It does not eliminate all problems. Large democracies can only function practically through elected representatives. Often the rules that govern the elected bodies (the legislature, the executive, etc.) are undemocratic. It is not unusual to find that elected politicians of a democratic government organize themselves according to quite undemocratic principles. Thus, we see even in the most democratic countries politicians whose power is derived not from the electorate but from seniority, privilege, family, other special interests, or wealth. The tendency is to evolve into democracies of cartels, in which the government draws its authority not from the individual members of society, but from enclaves of privilege. When this occurs, the society that results, though based on the rule of law and on democratic principles, will not be a genuinely open society because the interest of its individual members will not be seen apart from special-interest groups. To prevent this deterioration, a society must be committed to something deeper than rule of law, deeper than democratic principles.
Inalienable Human Rights
[p.45]The founders of the United States understood that a majority can act as tyrannically as any king. The question, then, was how to govern by rules created by an ever-changing and ever-reconstituting majority while still protecting the interests of the minority—even a minority of one. The answer cannot be found in the processes of democratic elections, or of democratically elected legislatures and executives. Nor can it be found in the due process required by courts. The answer is substantive, not procedural only. It lies in a society’s commitment to the sanctity of the individual, to the belief that each individual is endowed, by God or by nature, with certain inalienable rights that cannot be abridged by any sovereign, be it a potentate, a parliament, or the people themselves.
Many of the most important rights appear in the first ten amendments to the Constitution of the United States—the Bill of Rights. The most famous of these rights are the freedom of religion, of conscience, of speech, of the press, of peaceable assembly. Less well-known is the right to due process—the right to notice and hearing before judgment— including a fair trial, by competent evidence, before an impartial judge or jury, with a full opportunity to call, to cross-examine, to rebut witnesses, to contextualize facts, argue law, and obtain an appellate review of the decisions and actions of the lower court. Some individual rights—like the right to privacy, and a woman’s right to an abortion in the first trimester of pregnancy, are not articulated in the Bill of Rights, but grow out of judicial decisions. Obviously, some rights are in conflict with others: a woman’s right to liberty conflicts with a fetus’s right to life; the right to make and rely on private contracts conflicts with the right to have one’s debts discharged in bankruptcy; the right of free speech [p.46]conflicts with the right to bring an action for libel and slander.
The question of which are legitimate rights and which are not will never be answered. But an answer is not as important as the debate over the question. The existence of the debate itself and the freedom to participate in it constitute the most important rights of all. The content of our rights is, perhaps, less critical than our belief that such rights exist, and our commitment to an ongoing public dialogue with respect to the nature of those rights.
This is not to denigrate the process of naming and claiming rights not specifically so denominated—the right to dissent, the right to be able to inform ourselves of facts and opinions, the right to express our personhood and individuality in how we behave, speak, dress, arrange our hair, the right to privacy, the right to sexual and other voluntary, consenting, personal relationships, the right to have and rear children, the right to teach them beliefs and values, the right to break away from parents and create a life of our own.
In a free society, these rights are seen to be inalienable from the individual. They are freedoms inseparable from the personhood of each living soul because without them, that personhood would be threatened, diminished, or snuffed out. Because they are not derived from the group or the elite, these attributes of freedom cannot ethically be abridged by either the masses or the leadership.
The Containment of Power
An open society allows its members to participate freely and fully in the process of identifying, testing, accepting, and discarding values and processes of all kinds—religious, domestic, economic, political, social, etc. Among free peoples, this process is conducted in a way that preserves the power and dignity of private persons and, yet, unites them as [p.47]members of a community within a framework of received but constantly changing perceptions of reality. The rules of such a society maximize the private sphere and minimize the sphere of government control.
An open society’s commitment to individual freedoms and rights depends on the regulation of power among the organs of government and the various communities that make up the society. Without such regulation, power will shift in favor of the few and, if unchecked and uncorrected, will result in the erosion of the rights of the powerless and the aggrandizement of the rights of the powerful.
To prevent this, the power of government must first be limited, divided and balanced. It must be limited so that it leaves a large private sector in which individuals may live, believe, think, speak, write, interconnect, and develop. It must be divided so that not all power gravitates to one or another organ of government, where it will eventually corrupt and subvert the ideals of the open society. And power must also be balanced, not just once, but again and again, day after day; if slight adjustments are not constantly made in the balance of power, the balance will not hold.
In the United States, we are committed by the Constitution to a government of limited powers. The limits of the Federal government are set out in Article I, section 8. But from the beginning of our Republic, these limits have been expanded. Few are the decisions of courts or the enactments of Congress that result in limitations on government power. The problem is that there is no quick and easy way to limit governmental actions. If the government oversteps its bounds, an action must be brought, litigated, appealed until a decision is reached that the action of government is unconstitutional. This works, but it is expensive and time-consuming. The idea of a limited government is a powerful one, but [p.48]the mechanism for achieving it is elusive. Because we believe in a separation of powers, one branch of government cannot reform the procedures of another. Thus, reforming Congress is in the hands of Congress. The executive branch is charged with restraining itself. And, if limits must be set on the courts, the courts must pass judgment on their own procedures. If an ombudsman were created with power to initiate these reforms, the ombudsman’s office would soon become more powerful than the government. It would become the government. Then who would limit the ombudsman?
Ultimately, it is the concept of a limited government and the commitment of the community to that concept that works best to enforce limitations. Popular opinion, the popular press, the opinion of intellectuals and celebrities, the perspective of academicians and experts all come into play to correct governmental overreaching. Unfortunately, all this usually happens too late to avert the damage—the Vietnam War, the Watergate scandal, the Iran-Contra affair, the secret nuclear testing done without warning or public consent. But it often comes into play later to expose and correct the imbalance of power that caused the problem. Our belief that government is not all-powerful, all-good, all-knowing, or all-trustworthy and that the word “government” is but a label for the activities of quite fallible individuals like ourselves may be the most effective protection against the worst aspects of an overreaching government. Limitations on government include limitations of jurisdiction and venue of a court, the ripeness, mootness, or standing of a case, limitations created by public hearings and public censure, economic limitations, and the limitations created by community standards, aspirations, and expectations. Other limitations include political infighting, inefficiency, and fear of exposure.
In a free society, however, limitation on power is not [p.49]enough. Power must also be divided and balanced. In civics classes, we learn that power is divided among federal, state, and local governments, and balanced among the executive, legislative, and judicial departments of those governments. This is true. The decisions of courts effect the enactments of legislatures. The orders of the executive can be challenged in court. Legislatures can pass laws to close loopholes opened by courts and executives. The balancing process never ends. And, of course, the people themselves may participate in the balancing act. Scientific studies, investigative reports, demonstrations and civil disobedience can all bring pressure on government and the organs of power often for the purpose of resetting the balance. Perhaps, most effective of all are the demands of the ever-shifting majority, itself, which can serve to counter the accretion of power in the hands of the few. At one time the U.S. space program seemed above criticism. But after the explosion that killed seven space shuttle volunteers, public opinion shifted. The space program lost prestige. Its inefficiency and lack of performance exposed it to scrutiny. Its power was questioned, then limited.
The Common Good
[p.50]Power, in a free society, must not only be limited, divided, and balanced, it must be directed toward the common good. It is difficult to define the common good because it is often confused with the agendas and aspirations of special interest groups. This it is not. The common good is not the good of the government. It is not the good of the majority or of the minority. It is not any specific result or outcome such as improving health care, fighting crime, eliminating poverty, drugs, or improving the environment. Obviously, intelligent legislation along these lines would clearly be beneficial to the society as a whole, but it is not what I mean by the common good.
The common good has to do with process not substance. It has to do with how government works, not what government achieves. The common good is advanced whenever government acts to decrease the disparity between the powerful and the less powerful, when it works to level the playing field for all, to create greater accessibility of information, to enlarge the borders of any dialogue, to increase knowledge and participation in decision-making, in self-definition, and in diminishing the influence of those wielding arbitrary power and seeking to subvert the organs of government to promote or preserve privileges for the few at the expense of the many. The first business of government is to ensure that government itself remains fair, open, even-handed, and uncorrupted by processes that improperly empower special interests.
A free society is an ordered society. But its order arises out of the voluntary arrangements entered into among private individuals or groups. If a free society is to flourish, its order must grow organically out of the multifarious contracts of its citizens, rather than being legislated and mandated by the few. In short, imposed order is inimical to a free people. An open society cannot remain open if it impedes, as a matter of policy, the interchange of skill and knowledge among its members. Thus, it cannot rely only upon the expertise of a small body, even if such experts are indispensable to its survival. The vision of a closed society is limited to the vision of the small clique of authoritarians who lead it. For strength and flexibility, a free society depends upon the knowledge and skill of all its citizens as they go about making private arrangements for themselves, creating thousands of networks—domestic, economic, religious, intellectual, social, etc. The point is that order in a free society is essentially [p.51]spontaneous, flexible, and self-adjusting, arising out of innumerable interactions of its members under impossibly complex and subtle circumstances. In a closed society the order is imposed, rigid, limited, and usually extrinsic to the nature of the society itself. Eventually, a closed society must either progress by revolutionary convulsions that break open the narrowly defined categories of its leaders, or else it must succumb. The open society, however, can adjust by means of an innumerable succession of paradigm shifts—often painful, often resisted—that will allow the society to adapt to meet both internal and external challenges. In a closed society, the many rely upon the wisdom of the few; in an open society, the many rely upon the wisdom of the many.
This is another way to say that dissent is essential to freedom. Diversity, division, discord are the daily bread of a free people. The closed society despises divergence and seeks to smooth and homogenize, to make the citizens tractable and obedient, suitable for their predetermined assignments within the larger social apparatus. For this reason, the lubricant of a closed society is propaganda, disinformation, and secrecy, while in an open society it is news, information, and open debate.
The Limitation on Criminalization
The fabric of an open society can be unravelled by the power of the majority to criminalize certain actions, omissions, or conditions. In the same way the Nuremburg laws penalized Jewish participation in both private and public sectors of the Third Reich, democracies can make crimes of unpopular behaviors such as the use of alcohol, the practice of polygamy, polyandry, or polygyny, the establishment of home schools, the burning of draft cards in protest of the government, anti-abortion protest, anti-war protest, the leaking of sensitive but not secret government [p.52]information, the publication of erotic materials, and the like. The majority may even seek to criminalize, not behavior, but mere status or condition: the condition of being gay or lesbian, the condition of being mentally unstable, the condition of being ill with a fearful disease. Adding to the list of crimes is always done in the name of community morals, for the sake of the “common good” if you will. But the problem with such legislation is not its motive, but its adequacy.
In a free society, the mere agreement of the majority that an act or omission should subject a citizen to criminal penalties should not be enough to add to the list of crimes. There must be more. In fact, there is more. Laws are regularly struck down by the supreme courts of states and of the United States because they constitute misguided or inept attempts by the state to create crimes.
Crimes fall into two major categories: malum in se crimes and malum prohibitum crimes. Crimes that are malum in se are criminal because the action or omission involved is, in itself, reprehensible or evil. Crimes that are malum prohibitum are criminal only because the action or omission contravenes an interest of the state (such us the requirement to file one’s tax return by April 15 or get an extension).
To be a crime, it must at least be demonstrable that the action or omission to be outlawed involves one or more of the following: (1) the use of arbitrary force (such as terrorism, murder, mayhem, rape, ritual or sexual abuse, incest, kidnapping), (2) the perpetration of a material deceit either by falsehoods, disinformation, or fraudulent nondisclosure (such as conducting medical experiments on patients without their informed consent, or insider trading of securities), or (3) the act of trafficking in contraband (smuggling) or a controlled substance whose addictive effect on individuals is [p.53]deemed by the majority to constitute a grave threat to the fabric of society.
If none of these can be shown, then the state must demonstrate that it has a vital and compelling interest in requiring its citizens either (1) to avoid the activity prohibited (such as demonstrators’ blocking a highway during a protest) or (2) to undertake an activity they would otherwise not do (such as registering for the draft). The problem, of course, is establishing the state’s vital and compelling interest. Just what does this mean? Does the state have a vital and compelling interest in coercing, under penalty of fine or imprisonment, the compulsory attendance at school of children under age fourteen? Or seat belt use by passengers in motor vehicles? Or crash helmet use by motorcyclists? Or fingerprinting children in gang-infested school districts? Or the rating of TV shows, movies, books, and CDs?
The question of the state’s compelling interest is always debatable, and its determination is susceptible to abuse by the majority. It is very often during the process of creating such malum prohibitum crimes that the good, plain people of any community are tempted, for the sake of preserving morality, decency, economic equality, to abuse the power of the state. For this reason, communities often find themselves groping through a briar patch of conflicting philosophies, political ideologies, and special interests. There appear to be no clear, fixed rules on how to make good rules. However, there are some general guidelines that can apply:
• Before creating a criminal statue, other, less drastic options should be considered first. For example, rather than create a law that defines a crime punishable by the state such as a fine for selling indecent materials, it is possible instead to create a civil cause [p.54]of action—a tort or an action for breach of contract— that can serve as the basis for a private law suit brought by an aggrieved plaintiff against the perpetrating defendant.
• If no other options exist, and a criminal statute must be enacted, it should be one that does not inadvertently encourage the police to violate human rights in the process of gathering evidence for the prosecution—which would happen if the state were to criminalize nudity, adultery, or fornication.
• If a criminal statute must be enacted, it should—like all other laws—apply to all similarly situated members of the society. A law that prohibits mail fraud should not have exceptions for the politicians making the laws. To do so would be to favor incumbents over challengers in elections. Moreover, laws should be reciprocal with respect to the powerful and the powerless. If courts are empowered to hold people in “contempt of court” for in-court demonstrations of lack of respect, judges themselves should be chargeable for “contempt of the people” if they manifest in-court disrespect to the persons who appear before them.
• If a criminal statute is enacted, it should be applied even-handedly, not against any particular group or individuals. It should not be possible to foresee which specific individuals will be affected by the law or how precisely that impact will be felt on each.
• [p.55]Criminal laws should not be passed either to promote or proscribe any ideology.
• Criminal laws should not be passed for the purpose of outlawing a human condition or characteristic, a sexual preference, an illness, a desire, fear, hope, or any scientific, intellectual, artistic, or spiritual assumption, expectation, aspiration, or communication.
Any society dedicated to both liberty and justice for all must necessarily be involved in tension and conflict. There will be no fixed and certain answers, but over time there will emerge from the experience of its members a set of values—procedures, expectations, traditions—for preserving liberty without sacrificing order and preserving order without sacrificing liberty. Some of these values will be embodied in writings, others will not, some will consist of assumptions that run so deep they remain imperceptible or defy precise definition.
The chief business of a free society is to preserve its freedom. To do this it must repeatedly re-examine its received traditions, recall its original aspirations, examine its expectations, challenge its aspirations, question every use of power, create new and preserve old ways of ensuring a level playing field for all.
Order achieved at the expense of liberty is tyranny. Liberty achieved at the expense of order is discord. Justice without liberty is not just. Liberty without justice is not free. For a free and just society to cohere and endure, its citizens must work everyday to preserve the paradox that gives it life.
[p.56]Everyday they must rededicate themselves again and again to liberty and justice for all.