If Democrats Did Not Worry So Much About Fake Rights, They Might Be More Respectful of Real Ones

Last week I faulted the Republicans for the selective reading of the Constitution reflected in their 2012 platform. But at least the folks who put together that platform have read the Constitution (or parts of it); I'm not sure the same can be said of their Democratic counterparts. While the Republicans have a 4,000-word section devoted to "A Restoration of Constitutional Government," the Democrats give us 1,400 words on "Protecting Rights and Freedoms"—many of which, upon closer examination, turn out to be neither rights nor freedoms. Among the alleged rights that the Democrats promise to defend: freedom from "discrimination in the workplace and other settings," "paycheck fairness" for women, "job-protected leave for specified family and medical reasons," "evidence-based and age-appropriate sex education," government subsidies for Planned Parenthood, and taxpayer-funded health care, including "free access" to "prenatal screenings, mammograms, cervical cancer screening, breast-feeding supports, and contraception."

The section does mention a few actual rights, including (as J.D. Tuccille noted last night) "the individual right to bear arms" (subject to "commonsense" regulations). Although most Republicans would not, I will also give the Democrats credit for "freedom to marry," since they argue (persuasively, in my view) that equality under the law means the government should not discriminate between gay and straight couples. Likewise, "a woman's right to make decisions regarding her pregnancy, including a safe and legal abortion," is based on a constitutional argument—not a very sound argument, at least as laid out in Roe v. Wade, but at least an argument about the proper relationship between government and the individual. True to form, the Democrats immediately lose points by adding that women have a right to obtain abortions "regardless of ability to pay," once again conflating freedom from coercion with a claim on other people's resources. To put the same issue in a less controversial context, people surely have a right to eat, but that does not mean they have a right to compel others to pay for their food.

This fundamental confusion about rights helps explain why Republican rhetoric about the Constitution is more appealing to libertarians than Democratic rhetoric. Yet even the Republicans claim their promise to "strongly enforce anti-discrimination statutes"—i.e., compel people to engage in transactions they would otherwise eschew—is "in the spirit of the Constitution," a document that applies only to discrimination by the government, not discrimination by private parties. And in practice, there is little difference between Team Red and Team Blue when it comes to respecting civil liberties. The Republican version of the First Amendment includes exceptions for sex, flag desecration, and online material deemed inappropriate for children, while the Democrats talk about amending the Constitution to restrict political speech. The Democrats, like the Republicans, say counterterrorism policies must be consistent with the rule of law, due process, and the Fourth Amendment, but neither party thinks indefinite detention without charge, summary execution by drone, or warrantless surveillance of email and phone calls crosses any constitutional lines. 

In my post last week, I noted that the Republicans' discussion of the Constitution skips over the Due Process Clause. They do at least mention "habeas corpus and due process of law" in another section, referring to U.S. citizens who "become enemies of their country." Since the Republicans have steadfastly resisted the idea of treating terrorism suspects as criminal defendants (even though the Bush administration did so from time to time), it is not clear what this ostensible commitment to habeas corpus and due process means in practice. Not surprisingly, since the Obama administration maintains that killing anyone identified by the president as an enemy of the state (including U.S. citizens) complies with due process, the Democrats are no better in this area. I count two mentions of "due process" in their platform. The first refers to protections for "struggling teachers," while the second appears in a paragraph about intellectual property.