I am a little embarrassed by the points I propose to make in response to the Meares and Kahan critique of rights, for I am afraid of being dismissed as “abstract,” “outmoded,” “semantic,” and “scholastic.” Perhaps I should start by suggesting that we avoid that sort of dismissive rhetoric. After all, the authors acknowledge towards the end of their article that the issues they address are complex and delicate, and that no one thinks rights are altogether unimportant. If that is so, there might be virtue in not trying to discredit up-front those who wish to be a little more thoughtful about the dangers of alienating our rights than they are.
I use the word “alienating” advisedly, because the issue is whether constitutional rights-such as the Fourth Amendment right to security against unreasonable searches and seizures-should be regarded as inalienable or not. Inalienable is not just a pretty word, inserted by Thomas Jefferson into the Declaration of Independence for rhetorical effect. It means rights that may not be given away by those who have them, and therefore that no system of absolute power may ever be defended on the ground that reasonable people would have found it prudent, in certain circumstances, to alienate these rights. Meares and Kahan say that “we ordinarily think of rights as belonging to individuals,” with the implication that of course they can be sold or bargained away like any other form of property. In fact, there was a century or two of controversy in early modern rights theory about that very point. Some sixteenth century theorists defended slavery, for example, on what we would recognize as Hobbesian grounds: it would be rational for a person or a whole people to sell themselves into subjection in order to better preserve their life and security. Insistence on the inalienability of rights was a way of opposing such contracts, and it was this opposing conception-the idea of rights held in trust and the right-bearer as steward rather than owner of his rights-that triumphed in works of John Locke and the formulations of Jefferson. I am afraid this understanding is two hundred years older than the “1960s understanding” that Meares and Kahan dismiss as anachronistic, but it may be worth bearing in mind.
Alienating a right is different from exercising it or waiving it in a particular case. A police officer comes to my door and asks to look around my apartment; if I give my permission, I have waived my right. But the next time he comes, he must ask again, and if he is refused he cannot rely on my previous permission. He must have a warrant, and the grounds for his search must be reasonable. Now one can view this as a difference in degree. But from the facts laid out in the article, it seems that we are talking about an alienation of the right to be free from unreasonable searches, not just a waiver in a particular instance. The CHA tenants-or “an overwhelming majority of them”-agreed in advance that their apartments are to be open indefinitely to mass searches whenever the police or the housing authority wish to conduct them. An analogy perhaps would be the difference between waiving one’s right to trial by jury on a particular charge and agreeing in advance-say, upon graduation from high school-that one would not have the right to trial by jury for any charge or indictment in the future.
Meares and Kahan fail to notice that there is all the difference in the world between a single voluntary waiver and a general abandonment of one’s rights. They see it purely as an issue of voluntariness. They quite rightly resist any suggestion that poor people are incapable of giving consent, or that poverty undermines voluntariness or corrodes the conditions of its meaningful exercise. Those are certainly important issues so far as particular waivers of rights are concerned. But in the case of the wholesale alienation of rights, consent is not the issue. These are rights people hold as a legacy from the past and as a trust for the future. And that’s not just rhetoric either. Meares and Kahan trace a change in social circumstances over a couple of decades, by which rights that used to be important bulwarks against oppression have now ceased to be so. Do they imagine that there will not be changes in the future in the reverse direction? Do they think it unimaginable that public housing tenants will need to resume their right to security against unreasonable searches if the rather delicate safeguards that Meares and Kahan propose collapse or if racial attitudes change again for the worse? And are they asking us to believe that it will be as easy for the tenants or their successors to take these rights up again as it was to abandon them? I am not saying that the answers are obvious. But it is disturbing that Meares and Kahan do not even raise these questions, and that the only thing they have to say to the issue of inalienability is that it is unacceptably “paternalistic”-as if the indefinite waiver of a right by a whole class of persons had no effect on anyone but themselves.
I don’t mean to suggest that rights should be immutable. In fact, I agree with the general drift of the Meares and Kahan analysis: we should be less panic-stricken than we sometimes are about democratic decisions in this area. But there is an important difference between a public, legislative, or constitutional debate about what rights are appropriate for the new millennium, and the abandonment of certain rights by communities of tenants in housing projects. In a national debate, we can give some substance to the assurances that Meares and Kahan offer about equal representation and about the chance for opposing voices to be heard. But there is something disconcerting about the alacrity with which these authors embrace the informal majoritarianism of community alienation. They say nothing about the number of the minority hold-outs. They say nothing about the effect of their opposition-are the minority now liable to the searches because of majority support? And they say nothing about the circumstances in which this support is elicited and obtained. Does one sign the forms as a condition of getting a lease? Or is one’s housing secure quite independently of whether one gives permission for mass searches? Again, I don’t know the answers to these questions. But I am troubled by an article that does not even ask them, writing off any opposing voice as “a theological discourse divorced from the life of the nation.”