When Mitch McConnell recently proclaimed that Donald Trump has every right to question the outcome of the presidential election in court, I tried to react like the lawyer I am.
McConnell was of course correct; any fool can file almost any claim whatsoever, no matter how flimsily grounded, in some court or another, and there’s essentially nothing to stop it. You might not get past the point of filing it, as there are clerks of court who regard it as their job to protect their judges from wasting precious time on particularly stupid or frivolous cases and can often find a technical ground to prevent those cases from reaching the docket. And if you get to stand before a judge and have nothing of substance to say in support of your claim, you’ll likely be tossed out on your ear, as Trump’s legal minions have been. But the fact remains that if you’re so inclined, you can readily bring suit over almost anything, as our president’s spurious efforts to overturn a national election so shamefully illustrate.
McConnell’s remark was offensive not because it was inaccurate, but because it so willfully ducked his institutional responsibility, which would have required talking less about Trump’s rights, and more about his duties. For Trump is not just any fool, though fool he be. He’s president of the United States, and if ever there were a job where one’s rights should take the back seat to one’s duties, it’s his. Yet the concept of duty is one that seems not to have been passed along in Trump’s upbringing, and his grand total of four years in public office certainly hasn’t taught it to him.
The elevation of the assertion of rights over the assumption of duty hardly began with Trump, though he’s unusual in having made a career out of it. In the arc of the last fifty years, one can trace the rise of a rights-based culture in our country, and the corresponding decline of what one might call duty culture — that collection of public and private norms whereby behavior is predicated not on the needs and wishes of the self, but on one’s obligations to others.
One of the first courses you take in law school is Torts. The joke went that it was about desserts, but it was about how the law deals with the non-criminal harms we do to one another, the car crashes and libels and trespasses, and one of the core concepts in the law of torts is that of the “duty of care.” This means exactly what it suggests – the idea that each person in a society owes each other person at least some minimal effort to take care of that other person – an unspoken social contract that has been thought since medieval times to be one of the prerequisites of civilized life. This obligation is non-optional, and much of the English and American common law is devoted to enforcing it.
Duty culture reached its American apogee during the lives of my generation’s parents and grandparents, whose experience of immigration and two world wars inculcated in them an instinct to ask not, in Kennedy’s deathless couplet, what their country could do for them, but what they could do for their country. Not incidentally, these were years in which public service was considered not just patriotic, but an affirmative legal obligation, enforced during long periods of war in the form of universal military conscription, better known as the draft. The assumption that service to one’s country would be taken up by someone else while one went about the fundamentally selfish agenda of one’s life would have been an alien and rather shameful one to my father, and to his. Yet that’s the baseline assumption of all the generations coming of age since the end of the war in Vietnam.
My generation started our adulthoods in revolt against the draft as much as against the war in Vietnam, and our distaste for that duty (however justified by what we believed to be an illegal war) quickly curdled into the abnegation of duty in general: a decline in religious affiliation, a steep rise in divorce rates and single parenthood, a skepticism toward government in general and the federal government in particular, and the greed-is-good tribalism of which Trump is the ultimate embodiment.
Of course, one of the great ironies of Trump’s takeover of the Republican Party is that Republicans were for most of the last half-century the civic face of duty culture. In their fiscal and social support of the military, their fatalist stance regarding poverty and racism, their insistence on individual responsibility and governmental neutrality in the face of human misfortune, they were, until Trump, the standard bearers of duty culture in America, as contrasted with those secular, bleeding-heart hedonists, the Democrats.
Our current rights-based culture was an inevitable by-product of broad social movements — for racial and gender equality, environmental protection, reproductive choice, gay rights (not to mention the mirror-opposite causes of gun rights, the stigmatization of homosexuality, the prohibition of abortion, and laissez-faire capitalism), to name a few — whose potency depends on the identification and legal assertion of rights specified, or at least discernible, in the U.S. Constitution.
Combine these movements with a robust, multi-layered, easily-accessible court system and a burgeoning post-War population of lawyers, and the result has been a shift toward individual rights, and away from social duty, as the ultimate expression of cultural progress. Hence our knee-jerk resort to litigation in response to perceived wrongs of almost any kind, and the rise of of identity politics, where categorical entitlement takes precedence over earned merit.
We tend to forget that the Constitution, written as it was by a bunch of rebels, is first concerned with what are called negative rights — primarily, the right to be free from government interference in a range of human activities. It doesn’t create a right of speech; it merely prohibits Congress from making laws to constrain it. It guarantees not that there will be a “safe space” for whatever outlier belief system finds expression, but rather that there will be none, just as there is none for the cherished ideals of liberalism, nor, as we’ve seen, for the historical norms of presidential speech. Likewise, it doesn’t say you have the right to express your religion in any way you choose; rather, it says that Congress can’t establish a religion as the law of the land. It says you can’t be forced to incriminate yourself, not that you’re entitled to leniency and forgiveness.
The Constitution does confer certain affirmative rights — to vote, to due process, to equal protection, perhaps even to privacy, but first and foremost it creates vacuums in our civic space. How we fill them — what duties we assume toward one another — is left to us.
What’s gone missing in our rush to assert individual rights is that sense of duty; to family, and to our descendants, and to our country as a refuge of ancient virtues, but also to our immediate communities, to the passing stranger in the street, the neighbor across the way who we barely know but who never fails to wave and say hello. The current absurd bickering over mask-wearing in the midst of a pandemic is a perfect mirror of our fetishization of individual liberty — if so trivial an obligation can be said to affect so grand a principle — at the expense of a duty of care to neighbors and strangers, to the unknowable other who, with a tweak of fortunes or chromosomes, could have been you or me.
Rights liberate; duties constrain. No wonder our self-indulgent culture prefers the former. But rights and duties are not mutually exclusive. My right of speech doesn’t absolve me of my duty to speak truthfully. My freedom from government interference with my religion doesn’t relieve me of my duty of care for my atheist neighbor. What Mitch McConnell and the rest of the Republican leadership should be saying is yes, Trump has the legal right to indulge his fantasy of a stolen election, but he also has a duty to the office he holds, and to the people and the Constitution he swore to serve. He may never have learned the sandlot ethics of showing grace in defeat and congratulating the competitor who beat him, but he needed only to have watched TV for the last half-century of elections to see how real men in his position —not to mention statesmen — behave, and the duties that true leaders honor. He’s not a free agent. None of us is, no matter how the death of duty culture, exemplified by our departing president, tempts us to believe otherwise.