Is public action, that is action or policy taken by government, legitimate when the aim is to “promote the general welfare”? For most people the answer probably seems self-evident, but the religious fervor of movement right-wingers calls it into question. And it is hard to see “general welfare” in legislation written by lawyers working for one organized interest or another, or by staffers working for representatives heavily indebted to one region or class of constituency.
Is it all simply a matter of balance, balancing one group’s rights against another, or the rights of individuals against the ‘compelling interests of the state’? For if it is, anyone may become a vicitim of it, as long as legal forms are observed, there is a need, and the ‘public’ advantage great enough to ‘balance’ the damage to the victims. One may have trouble sympathizing with complaints over (often illusory) progressive tax rates, but consider the plight of people driven from their property to make way for a football stadium.
So, if ‘victim’ is not too strong a word, there are at least legal forms that may be appealed to, namely ‘rights’, as in those enumerated by the Bill of Rights. Yet, in our understanding of democracy, rights are not completely fixed in meaning. They vary in legal weight, and they are not comprehensive. Is there a right to privacy? Sometimes.
(There is another kind of safety valve, although not typically against the powers of government, and that is the legal notion of ‘equity’. Legal equity is in essence the action of a court to arbitrate fairness, especially in gray areas where a disputed contract provision may be vague or offensive to the court.)
Unfortunately, ‘rights’ as we understand them can be quite flexible. This can be the cause of understandable outrage, especially among people who take too much for granted, but the difficulty, one of them, in codifying concrete, unchangeable rights is that we have very imperfect knowledge, if any, of what the future will bring.
Suppose there were an absolute right of free speech and the press, except, naturally, in time of war. Would an 18th century framer of such a right have been wise eough to forsee the rise of completely new modes of communication?
If the mode of communication is not to be a factor, and the right is to be absolute, then new modes of communication would enable people to commit widespread fraud with impunity, as a mater of right.
And how an 18th century citizen would have understood war would not likely have included the 21st century’s state of ‘war’ as an normal condition, i.e. a national security apparatus engaged in endless ‘war’ with stateless actors. The exception of war would then render the whole idea of an absolute right of free speech and free press meaningless. And yet, no one would countenance such a right without the exception, absolute no matter what the consequences.
Extremists will usually counter, “Let the chips fall where they may!” This is easy to say when you are engaged in protest, expressing your discontent. It is a much different matter when you are actually faced with the choice, say to elect an extremist leader or vote for a reckless law. That is when most people, even the discontented, have an attack of sobriety and consider with fearful respect the panoply of unintended and unforseeable consequences.
And yet, not always.