No Escape

Freedom of Speech and the Paradox of Rights

Paul Passavant

• Publisher: NYU Press
• Year: 2002
• ISBN:
  9780814768358
• Topic: Politics & International Relations
• Subtopic: Constitutions
• Index: Politics & International Relations

Conventional legal and political scholarship places liberalism, which promotes and defends individual legal rights, in direct opposition to communitarianism, which focuses on the greater good of the social group. According to this mode of thought, liberals value legal rights for precisely the same reason that communitarians seek to limit their scope: they privilege the individual over the community. However, could it be that liberalism is not antithetical to social group identities like nationalism as is traditionally understood? Is it possible that those who assert liberal rights might even strengthen aspects of nationalism?

No Escape argues that this is exactly the case, beginning with the observation that, paradoxical as it might seem, liberalism and nationalism have historically coincided in the United States. No Escape proves that liberal government and nationalism can mutually reinforce each other, taking as its example a preeminent and seemingly universal liberal legal right, freedom of speech, and illustrating how it can function in a way that actually reproduces nationally exclusive conditions of power.

No Escape boldly re-evaluates the relationship between liberal rights and the community at a time when the call has gone out for the nation to defend the freedom to live our way of life. Passavant challenges us to reconsider traditional modes of thought, providing a fresh perspective on seemingly intransigent political and legal debates.

1

Liberal Legal Rights and the Grounds of Nationalism

Liberalism, a theory of politics beginning from the premise of individualism, and communitarianism, a theory of politics beginning from the premise of an organic social whole, define the opposed poles of “modern” political and legal understanding. While liberals seek to establish universal rights, abstracted from particular social conditions, in order to protect the individual’s independence to decide how to make his or her life meaningful, communitarians seek to preserve and strengthen their privileged community because they perceive the welfare of individuals to derive from the health of their community. The primary form of political community within the paradigm of modernity is the nation. This means that the polarity of liberalism and communitarianism is often played out as an opposition between liberalism and nationalism.¹ Many, particularly liberals, portray privileging social group ties like nationalism as “ancient” or “premodern,” and suggest that the trend of history is a movement away from such affiliations and toward universal human rights.² Communitarians, in fact, often agree with this diagnosis while bemoaning its consequences.³ Although theory posits an opposition between liberalism and nationalism, I suggest that liberalism and nationalism have coincided historically. Indeed, the very declaration that formed the American nation continues to be invoked as a basic legal document requiring the protection of individual rights. This book examines this coincidence between liberalism and nationalism in the United States by exploring a specific area of constitutional law—the right to freedom of speech.⁴ This chapter, however, sets the stage for that effort by investigating constitutional discourse of the eighteenth century more broadly.

Law and legal rights are valuable for liberals because they protect the liberties of the individual against an oppressive community. In one influential formulation, rights are conceptualized as “trumps” for the individual.⁵ To describe rights as legal forms that can “trump” community interests in unity is to suggest that rights are instrumental—they are instruments the individual can use to protect him or herself against social or political forces. In this light, liberalism understands law and legal rights in an asocial if not an antisocial manner. Law stands apart from society and can insulate the individual from social and political forces. Indeed, for law to be legitimate in liberal eyes, it must be neutral and therefore refuse to be compromised by political or social interests.⁶

For communitarians individual rights are a problem for the same reason that liberals find them valuable. The communitarian literature also considers rights to be trumps, and this is its problem with rights.⁷ When individuals assert their rights, they disrupt the social bonds that hold the community together. Excessive rights claiming can fragment the community, instill alienation among its members as they become divorced from their true identity, and thus lead to a weakening of the social organism. Indeed, for one conservative, the rights revolution in the United States has led to the “disabling of America.”⁸ Legal rights are asocial if not antisocial instruments that privilege the individual and threaten to weaken the national community.

Giorgio Agamben extends this argument by perceiving a total suspension of legal rights where nationalism is most extreme. In the drive to create a “pure” nation—which entails practices of exclusion or enforced normalization and implies Nazism and genocide generally as its logical extremes—Agamben describes the central space of the Holocaust, the concentration camp, as a place where law is meaningless. He finds contemporary analogues to the concentration camp in spaces that perform nationalism’s sifting of impurities to maintain or strengthen the health of the body politic, such as the zones d’attentes in French international airports where foreigners may be held. Agamben describes these spaces as zones outside of the legal process where law fails to rise above a factual or social situation.⁹ Agamben suggests an opposition between legality and the social practice of nationalism by declaring law’s absence from those places where the nationalist logic of inclusion and exclusion is vividly and violently materialized.

In this chapter, I challenge the simple opposition between liberal legal rights and the social formation of the nation. I do so by investigating the discursive patterns of rights claiming during the transition from the late colonial period to the early national period in U.S. history. My examination shows how the fates of liberalism and nationalism have become linked such that liberal rights and the national community are better understood as historically joined partners in justice and its lack. Before proceeding, however, I consider in more detail Agamben’s contrast between the biopolitical aspects of nationalism and the rule of law. In so doing, I suggest the possibility of a more complex relationship between law and nationalism, which in turn will become empirically manifest in my treatment of late-eighteenth-century American politics.

The Law of Peoples

In his ambitious study, Agamben describes spaces like concentration camps and zones d’attentes where national identity and difference are sifted as places where “law is suspended” in a permanent state of exception:

[The] camp is thus the structure in which the state of exception—the possibility of deciding on which founds sovereign power—is realized normally…. This is why in the camp the quaestio iuris is, if we look carefully, no longer strictly distinguishable from the quaestio facti, and in this sense every question concerning the legality or illegality of what happened there simply makes no sense. The camp is a hybrid of law and fact in which the two terms have become indistinguishable.¹⁰

For Agamben, the camp and other such zones where “biopolitics” is carried out most obviously—the Italian stadium in Bari where Albanian refugees were gathered before being returned to their country is yet another example—are places central to modern politics. Zones like the death camps, according to Agamben, are spaces where “power confronts nothing but pure life, without any mediation.” Agamben’s adoption of Michel Foucault’s term “biopolitics” refers to the way that politics no longer is just about a way of life but has centered on biological life itself (which the Greeks excluded from political space), making the life and health of the population a central political preoccupation. When mass life is a constant political question, mass death is a constant political possibility.

The dangers of biopolitics, however, are not limited to special zones devoted to such purposes. In one section devoted specifically to Carl Schmitt, the well-known German legal philosopher who became a supporter of the Nazi regime, Agamben suggests that whenever concepts such as “good morals,” “public security and order,” or a “concept such as the National Socialist notion of race” invade law, the latter becomes “indeterminate,” and a judge, civil servant, or anybody who must deal with such notions is faced with a situation in which “the distinction between life and politics, between questions of fact and questions of law, has literally no more meaning.”¹¹ Here Agamben is drawing upon Schmitt’s theory of the sovereign decision and arguing that its dangerous implications have pervaded modern political life. Agamben’s attempt to put the fear of the biopolitical devil in us, however, does not give due emphasis to some of Schmitt’s insights, and in this failure implies an inadequate opposition between law and nationalism whereby human rights can be saved and nationalism contained by a return to a formalistic rule of law. In making this critique, I am not downplaying the dangers of biopolitics; rather, I am suggesting that they are not escaped as easily as Agamben’s framing of the issue might suggest.

According to Schmitt, all law is situational law because chaos has no law.¹² The sovereign is the one who produces a factual situation or a given social order and guarantees its existence. Only when there is a “normal” situation can a norm define this state of affairs and distinguish it from other possible situations or social orders. A normal situation is therefore a prerequisite for legal validity, and the sovereign is the one who decides whether this normal situation indeed exists. Correspondingly, an “exception” is a situation of extreme peril or a danger to the existence of the state. Under such emergency conditions, the state’s sovereign will suspend ordinary law to exercise the state’s right of self-preservation. Agamben argues that during such states of exception, there is no law, only the unmediated sovereign power to decide what is necessary to preserve the state. Nevertheless, we should realize that sovereign power and decision making continue to exist in relation to law during a state of exception.¹³

Schmitt puts sovereignty and the state of exception in relation to law. In his 1922 study Political Theology, Schmitt describes sovereign power in the state of emergency as follows: “[The sovereign] decides whether there is a state of emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.”¹⁴ Moreover, Schmitt argues that because “the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.”¹⁵ Indeed, there must be an underlying rule or principle that guides decision making even in a state of exception. Sovereignty and sovereign decisions cannot be a case of “anything goes,” because that would be chaos, something incompatible with a given state or decisions made with the purpose of protecting the state’s fundamental nature. Decisions will be made in accordance with preserving a particular state. Therefore, the exercise of sovereign power in a state of exception cannot be described the way Agamben does as power un-mediated by law or as a simple suspension of law. Sovereignty must remain bound by law or else it disappears and no longer exists because only in chaos can law of any sort be lacking totally. Sovereignty is both political and juristic, but not purely one or the other. We should describe the sovereign’s existence paradoxically as being before the law—as giving the law while also having been given by the law.¹⁶

While it is beyond the scope of this chapter to engage directly with Agamben’s empirical claims or theoretical argument as a whole, this paradoxical nature of sovereignty provides a key to a more sophisticated understanding of America’s foundation than does the simple opposition of law and the biopolitical drives of nationalism.¹⁷ In many ways, the paradox of sovereignty and the complex relationship between liberal legal rights and nationalism are condensed within the American Declaration of Independence, which both founds a nation and serves as a source for ongoing rights claims.¹⁸ In what follows, we shall see that, on the one hand, Americans of the second half of the eighteenth century justified their rights claims based on their identity—as the posterity of Englishmen, they claimed the rights of Englishmen as their birthright. On the other hand, legal declarations are constitutive of the distinctiveness of the American people; Americans are born in their claim to rights. Law and society—in this case, law and nation—are not opposed categories; they are linked. This is not to say, however, that they are identical—there is a gap of difference just as there is a gap between a signifier and signified that constitutes the possibility of communication.¹⁹ This gap creates the possibility and the need to claim one’s rights because there is always the possibility, as the British Americans of the 1760s and 1770s learned, that such claims may not be successful at winning over their target audience.²⁰ Moreover, as many concerned with civil rights are learning today, unless one continues faithfully to outperform one’s detractors, one risks losing one’s hard-won audience, hence one’s rights.

The Ancient Constitution, Norman Yoke, and the Rights of Englishmen in British American Discourse

The British Americans claimed that their rights under the British constitution were being infringed upon by acts of Parliament in the 1760s and 1770s. If the British government did not recognize these rights in the colonies, then English constitutional history provided the Americans a script to follow, into which the Americans narrated themselves.²¹ The script was familiar: British Americans widely consumed the stories of the British struggle during the seventeenth century to reclaim their ancient constitution and constitute themselves properly as English by recovering their free origins against a tyrannical monarchy. Ultimately, the British Americans would invoke and extend this narrative by breaking their ties with the British government in order to preserve their identity as a people to whom freedoms are legitimately entrusted.

The rights the British Americans claimed in the period leading up to the American Revolution were “British liberties” or the “rights of Englishmen.” By claiming these rights, the British Americans were drawing upon British constitutional discourse. Constitutional argument in England from the sixteenth through the eighteenth centuries (if not earlier) was dominated by variations upon the theme of an ancient constitution, Norman Conquest, and a reconnection of the English with their ancient Anglo-Saxon liberties. In broad strokes, the story goes as follows. Before 1066 the Anglo-Saxon inhabitants of England enjoyed great freedoms and were self-governing through representative institutions. At the hands of William and the Norman Conquest, however, all of this was set at naught, and the English were deprived of their liberty at the hands of a tyrannical foreign power that brought feudal social arrangements to the island. The English, being a freedom-loving people, did not forget the rights they had lost and fought with varying success to retrieve their ancient liberties. The Magna Carta, for example, is one such instance of the English winning back portions of their heritage.²²

The Norman Conquest was thus an apparent breach in the continuity of English history. This led to struggles over how to interpret this event. These struggles, in turn, had important implications for the status of rights and privileges. Common law lawyers interested in preserving the continuity of England’s law often denied the fact of a conquest or asserted that William I had confirmed various rights rather than imposed foreign laws. Moderates and radicals, however, tended to associate whatever was not conducive to liberty with the Norman Conquest—a foreign imposition. Therefore, arguments for various liberties generally took the form of rediscovering ancient Anglo-Saxon rights and privileges while eradicating corrupt foreign (French) influences from English law. One moderate form of Whig history identified the Glorious Revolution and its aftermath of parliamentary sovereignty within a balanced constitution as the reachievement of the ancient Anglo-Saxon constitution. This, in fact, was Thomas Jefferson’s interpretation of British history. In sum, claiming rights and protecting the British constitution were linked to questions of the nation, English identity, and a hardening of boundaries between inside and outside.²³

American political science and legal scholarship conventionally interpret the process of asserting rights against the British in the period leading up to the American Revolution and culminating in the Declaration of Independence as a process of putting John Locke’s defense of natural rights in his Second Treatise into political and legal practice.²⁴ Since the publication of Bernard Bailyn’s Ideological Origins of the American Revolution and Gordon Wood’s Creation of the American Republic, however, the important influence of the Whig view of history, republican political thought, and ancient constitutionalism on the revolutionaries and framers of the U.S. Constitution has been uncovered...