DON'T FIGHT FOR ALL YOUR RIGHTS



             Nothing  could be more American than fighting vigorously for

        your rights.  But maybe that doesn't always serve us well.

             Item:  Jews take to court a bland Christmas creche on a mid-

        western state capital lawn, and protest against a private person

        placing flower pots arranged like a cross with a figure of Jesus

        on the steps of the capitol, on the grounds of the separation of

        church and state.

             Item:  Catholics battle atheists and the North Carolina

        Civil Liberties Union who have gotten the federal courts to bar a

        Charlotte trial judge from opening court in the morning with an

        invocation requesting "God's justice and mercy."  At the same

        time, the Supreme Court starts the day with "God save the United

        States and this Honorable Court," and pennies are inscribed with

        "In God We Trust."

             Item:  A father in Rhode Island sues that a rabbi should not

        be allowed to give a non-denominational benediction at a school

        graduation.

             Item:  Pornography sellers litigate tooth-and-nail for the

        right to show and sell anything to anyone anywhere, on the

        grounds of free speech.

             Item:  Homosexuals insist that their bathhouses should not

        be closed even when the evidence is overwhelming that AIDS

        spreads there, on the grounds of civil liberties.

             Item:  Blacks claim the right to join any kind of an infor-

        mal group in the workplace, on the grounds that association of

        more than two people is public.

             Here is a better personal rule than always fighting for

        every possible right:  Fight to the death for your rights except

        if they are a) trivial, and b) most people believe you do not

        have a moral right to them even if they grudgingly agree you have

        a legal right to them.

             The basis for this conduct is the doctrine that became so

        maligned in the wake of the Clarence Thomas hearing -- natural

        law.  I interpret this to mean moral beliefs that are of ancient

        origin, and that are accepted by almost all groups of people even

        (or especially) where written law has not yet been enacted about

        them.  Murder and rape are the clearest cases, of course.  For

        example, even before there was formal law in the U.S. West, all

        communities considered these acts to be immoral, and would not

        countenance them.

             On this view, the existence of natural law concerning a

        particular issue is a question of fact.  This is not the same as

        the idea of natural law as doctrine flowing from sacred writings

        or a deity, though these views are not necessarily inconsistent.

             Interesting and complicated issues arise in modern society

        when there is a conflict between written law and natural law.  if

        I interpret correctly, there is natural law that a large majority

        of a community should have things its way -- the right of democ-

        racy.  This proposition is often cited as justification for the

        self-determination of ethnic groups.  And it is the basis of the

        American Revolution and the U. S. Constitution.

             But the natural law of majority right often conflicts with

        constitutional rights in the United States.  In Great Britain,

        there is no written constitution to check the majority will in

        Parliament.  But in the United States, the Congress cannot

        abridge the rights of minority groups or unpopular individuals

        just because most people want it so.

             It is destructive both for the individual group and for the

        society, however, if the minority presses its claims when there

        is natural law to the contrary and when it is not substantively

        important for the group to do so.  When a right is important, the

        rest of the community is likely to support a minority fighting

        for it, and there will be no backlash.  But when a minority

        fights for something that is not crucial to its welfare -- like

        getting rid of a bland creche, or demanding a seat at a poker

        game -- then the majority is likely to be resentful because of

        the natural-law belief that the majority should have its way.

        This leads to unproductive and unnecessary conflict.

             Goodness knows that I am not arguing that people should

        avoid conflict at all costs.  My own life shows I don't live that

        way.  What I am asking for is something like the basketball rule

        -- no harm, no foul.  That is, don't rush to argue with the

        referee when you have only been brushed by another player, though

        the written rules require no contact at all.

             A slightly relaxed attitude towards one's rights can save a

        lot of energy.  And it may also foster a habit of self-reliance

        that develops when you feel that you have to try a bit harder

        than do other people, and when you have certain handicaps that

        others do not -- which is the situation of just about every human

        being.

             What guidelines should there be for issues like these?

        Maybe it is not helpful to look for general rules.  The best one

        can do is to exercise discretion, the way good referees in bas-

        ketball go about their jobs.  Don't grab for everything you can

        get.  Two specifics as examples, however:

             I am in favor of Jews fighting for public schools not to

        have the children sing Christmas songs, because I know how pain-

        ful this can be for some kids.  But only the most touchy rights-

        jealous person will get deeply upset about a tasteful creche on

        an official lawn.

             It also makes sense to me for blacks to fight all the way

        for everything having to do with employment, to ensure that no

        one is denied a job on the basis of color.  But to raise a howl

        because there is a poker game after work that has no black

        members does not make sense to me.

             In other words -- a touch of self-restraint.  Our society

        suffers, I believe, from the belief that there need not be any

        such self-restraint to keep the feelings of others from being

        distressed, even if one has a legal right to do so.  (Of course

        this is not true of individuals toward their own neighbors.)

             One of the restraints I urge is not to use a group's politi-

        cal power to squeeze every possible benefit from the public

        treasuries.  For example, blacks would do better to ask not only

        whether they have the clout to get scholarships and contracts set

        aside for them, but whether it is wise to ask for more than is

        consistent with the natural law of equal entitlements.  The same

        is true for Jews and public funding for Israel.




             Julian L. Simon teaches business at the University of

        Maryland and is an adjunct scholar at the Cato Institute.  His

        most recent book is Population Matters:  People, Resources,

        Environment and Immigration.


        page 1 /article2 rights/September 8, 1992