The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [9]
One of the nation’s leading conservative constitutional law scholars, Steven Calabresi, has taken a similar view. He has written that the gay rights issue should be handled by having gays move to “secular” cities, while “Americans of faith” should “form and live in communities” where they can discriminate openly. Following Rousseau, he suggests that “those who choose to live in a part of the country where their views on homosexuality are in the minority should learn to gracefully put up with a prevalence of opposing views.”14
That is not the correct answer. Mere presence in a jurisdiction cannot really mean that a person agrees with everything that goes on there, and probably does not even mean that every law is justly applied to her. Your presence in a community should not mean that you’ve waived your right to protest what you consider a violation of your rights. If simply being in a polity means that you consent to be governed by whatever laws then exist, then “consent” has little genuine meaning. We may want to assume that people have freely chosen their location, because it makes the theory of governance and state legitimacy work better, but it has little to do with what people actually have in their heads. It is often impossible to see from outside a person’s head any difference between free choice—I am here because I want to be here—and coercion—I am here because I have no other choice. More profoundly, it may even be difficult to figure that out from inside a person’s head.
Of course Rousseau and Calabresi are correct to say we need a theory of choice and consent to make democracy legitimate. But we don’t really know what choice looks like.
The concept of political consent is so elastic that even Osama bin Laden tried to use it to excuse his attacks on American civilians. The 9/11 attacks were justified, he said, because “the American people are the ones who choose their government by their own free will,” and they “have the ability and choice to refuse the policies of their government.”15
Choice is an issue in religion as well. Tatian the Syrian explained in A.D. 170 that “the just man [is] deservedly praised for his virtuous deeds, since in the exercise of his free choice he refrained from transgressing the will of God.” A couple of centuries later, St. Augustine wrote, “The commandments of God themselves would be of no avail to man unless he had the free choice of the will whereby by fulfilling them he could attain the promised reward.” Twentieth-century Christian thinker C. S. Lewis said, “All that are in Hell, choose it. Without that self-choice there could be no Hell.”16
In my family’s Baptist faith, one is “saved” when one affirmatively chooses the spiritual path after the “age of accountability,” which is when one can make choices for oneself. I was “born again” when I was eight. Looking back on it, I’m not sure I made that decision with any more thought or understanding than my choice of DC comics over Marvel. I certainly have different beliefs now about both religion and comics.
There are hundreds of other examples of the difficulties surrounding choice. Consent transforms an illegal police search into a legal one. A person injured in an accident can sue the person responsible, unless the victim had chosen to accept the risk. (Hence the waivers we all have to sign when we do anything from hiring a scuba instructor to joining a health club.) With “informed” consent, a doctor can perform life-saving surgery; without consent, the patient dies (unless he or she is somehow unable—rather than unwilling—to give consent, in which case consent is assumed).
So the notions of choice are everywhere, but what we mean by those words and the impact they have vary across situations. One purpose of this book is to examine the different ways we think