Is the adversarial model, associated with the state of nature and the subsequent transition from pre-social to social arrangements, still applicable once we move to consider civil societies? More importantly, perhaps, can we include the notion of compromise (and that of “taking an insurance policy”) among the ways most human rights have usually or occasionally been won? Can we construe other rights and social gains on analogy with how our fundamental rights, such as the right to life and property, have been secured in the course of said transition? Is the adversarial model still applicable once we’re past that transition?
The answer to the first question must be an unequivocal yes. Although the state-of-nature construct represents perhaps the direst in asocial or pre-social arrangements, we also know that the state of conflict never really disappears. The manner of its resolution may become more or less “civil” in the context of civil societies, but the interest in maintaining the status quo by way of the existing power structures and social hierarchy will never wane — of that, we can be sure.
Indeed, one way of understanding the development of human societies is in terms of a progression from the antagonistic to the more cooperative mode. And the primary mechanism of this progression, from societies that are less civil to those that are more so, has been “compromise.”
The second set of questions requires a more measured response. And here, we may start with the Bill of Rights serving as a prototype, if you like. Along with the right to life and property, one could lump all the rights enumerated therein as being fundamental and, in that sense, inalienable.
There is, besides, a historical reason for so doing: all those rights define a political community and inaugurate its passage from a pre-social and pre-political stage to a full-fledged polity. To wit, just as a charter guarantees certain rights and privileges to all its present and would-be members, the Bill of Rights constitutes the foundation of a political community – the United States, in this instance.
Guaranteeing those rights (again, it’s arguable) is equivalent to according them a certain innate, inalienable status – a status which predates the formation of the political community and cannot, therefore, be construed as though constituting the condition of membership.
Au contraire! The Bill of Rights serves as the precondition of the political community and the main reason why individuals in the state of nature would choose to enter a “social contract” and form a civil society (so that they wouldn’t have to fend for themselves and their inalienable rights but be guaranteed adequate protection – by the state).
Oddly enough, the Bill of Rights is conspicuously silent about suffrage or voting rights. Even the Constitution is of little help here. Section 2, Clause 1, for example (Article One), dealing with the House of Representatives and the composition and election of members, states that
the House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each state shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
In effect, therefore, the U.S. Constitution does not directly guarantee the right of suffrage to anyone [see Minor v. Happersett (1874), for instance] – the high-sounding phrase, “the People,” being (purposely perhaps) ambiguous and vague. It’s not until the Reconstruction Era that we begin to see a series of constitutional amendments extending voting rights to different groups of citizens.
These extensions state that voting rights cannot be denied or abridged based on:
“race, color, or previous condition of servitude” (15th Amendment, 1870);
“on account of sex” (gender) (19th Amendment, 1920);
“by reason of failure to pay any poll tax or other tax” (24th Amendment, 1964);
“who are eighteen years of age or older, to vote, shall not be denied or abridged by the United States or by any state on account of age” (26th Amendment, 1971).
Why are voting rights an instructive example? And how do they differ from the rights specified in the original document?
Both situations make use of the same paradigm: the antagonistic model of a society in the making and the instrument of compromise as the proven method of conflict resolution. Indeed, the very fact that each of the four amendments (extending the voting rights to approximate the perfect ideal of universal suffrage) came in the aftermath of a bitter struggle is proof positive.
[It’s worth noting that the idea of voting as a right was never in question, only its application was. What was initially construed by “the People” — to mean perhaps only the propertied class or some such — was extended in time to include more and more “citizens”: former slaves (whether of African- or another ethnic origin), women, and so forth, and do away with former restrictions.]
Consider the differences, however.
If we construe the rights listed in the original Bill of Rights as a precondition to forming the Union, the history of voting rights suggests they’re a horse of another color.
There is also another, though related difference. Whereas the forming of the Union can be viewed as transforming a zero-sum game into a win-win situation [whereby life, property, and the existing pre-social arrangements are not only preserved but also guaranteed (see the penultimate paragraph of Part I)], the same cannot be said for universal suffrage which, if anything, tends to undermine the status quo by presenting a challenge.
In the first instance, the distinction of note may well be between those rights which we regard as innate or inalienable and those which come with membership. And this is to say that whereas the first set of rights cannot be said to dissolve with the dissolution of membership and are, in that sense, extraneous to it, voting rights, on the other hand, are an integral part of what it means to be a member. They’re subject to any number of revisions and changes.
And in the second? Well, perhaps it’s only to say that while we’re still operating with an adversarial model (within civil society), the notion of compromise has yielded to a model of concession (or appeasement, if you like).
Civil rights offer another example of member-related rights. Unlike voting rights, which may be said to constitute the club’s or the society’s charter or its bylaws, they tend to address a code of conduct. They, too, are subject to change – which fact sets them a category apart from the original, inalienable rights (which are irrevocable).
Indeed, the more we move away from the original, inalienable rights, the more it looks as though concession (or forced cooperation) is the primary mechanism of conflict-resolution in an adversarial society: a win-win situation becomes a rarity since only some are the winners.
What has all this got to do with universal healthcare?
It sets the stage for introducing yet another concept to our already complex model of civil society in conflict: of (social) benefit that accrues to every member (and the reciprocal concept of social obligation).
In Part III, I shall argue that perhaps the clearest way to think about universal healthcare is not on analogy with rights but with another program already in effect – Food Stamps.