A law student friend of mine once asked, around 1973, whether I believed in a right to privacy; I somewhat uncooperatively replied that I believed in struggle.I've looked back on that conversation many times, with some regret that I had not given an answer more useful in a legal context. Of course I believed that people ought to have a right to privacy.I can see now how the question arises. Authoritarian forces currently claim that the Bill of Rights, which popular opinion tacked onto the Founders' Constitution, comprehends all the rights the Founders ever intended. The Founders, however, expressly avoided including an itemization of rights in their Constitution, precisely to avoid giving future Scalias a pretext to claim that the list is exclusive. The Founders were convinced that rights could only be properly identified in any given situation through the interplay of institutions that individually had enough power to check each other.So perhaps my answer about struggle, which had been formed by experience in confronting the war in Vietnam, actually mirrored the Founders' own mentality. To the extent that the Founders' intent is relevant to legal argument, my reply may not have been so extra-legal after all.Reinhold Niebuhr's famous book on "Immoral Society" is also written to argue that justice and ethics in public affairs cannot depend only on rational instruments like law codes but rather must depend in part on deployment of political power: the "realist" position. While rationalism can advance society a certain distance, primarily through education, the ethical ideal for society as seen by the individual is not seen the same way by society and its institutions. Bridging the distance between society's usual performance and the ideals of the ethical individual is what realistically requires the application of power to balance the coercion practiced by society's dominant forces.Niebuhr's lengthy argument is eloquent, learned, and credible in the sense that he criticizes the rationalists among whom he, as an academic philosopher, would ordinarily be found. Where he says (on page xxviii of the Introduction) that "Most of the social scientists are such unqualified rationalists that they seem to imagine that men of power will immediately check their exactions and pretensions in society, as soon as they have been apprised by the social scientists that their actions and attitudes are anti-social," he catches exactly the naïveté of the economic profession as I have known it.His logic in establishing the ethical state of individuals, and then the ethical state of societies, is very careful. The ethical sense in an individual is described as partly innate and partly rational -- an effort of the individual's mind. Society, however, is only partly formed by ethical action and cannot survive without coercion by a dominant group.In the chapter on "The Morality of Nations," we read (pages 88-89): "In other words the nation is a corporate entity, held together much more by force and emotion, than by mind. Since there can be no ethical action without self-criticism, and no self-criticism without the rational capacity of self-transcendence, it is natural that national attitudes can hardly approximate the ethical. Even those tendencies toward self-criticism in a nation which do express themselves are usually thwarted by the governing classes and by a certain instinct for unity in society itself. For self-criticism is a kind of inner disunity, which the feeble mind of a nation finds difficulty in distinguishing from dangerous forms of inner conflict. So nations crucify their moral rebels with their criminals upon the same Golgotha, not able to distinguish between the moral idealism which surpasses, and the anti-social conduct which falls below that moral mediocrity, on the level of which every society unifies its life."Niebuhr anticipates the potential impact of the authoritarian personality on national culture (page 91): "The paradox is that patriotism transmutes individual unselfishness into national egoism. Loyalty to the nation is a high form of altruism when compared to lesser loyalties and more parochial interests. ... The unqualified nature of this devotion is the very basis of the nation's power and of the freedom to use the power without moral restraint. Thus the unselfishness of individuals makes for the selfishness of nations."After a long discussion of communism and European socialism, Niebuhr returns in the book's last chapters to the basics of ethical social action, bringing the perspective that "A rational society will probably place a greater emphasis upon the ends and purposes for which coercion is used than upon the elimination of coercion and conflict" and that "It is important to insist, first of all, that equality is a higher social goal than peace" (pages 234-5).He considers how non-violence may be a morally effective social policy, largely endorsing it while insisting that it contains some elements of coercion that as a practical matter have some of the same results as violence. However: "The fact is that love, disinterestedness and benevolence do have a strong social and utilitarian value, and the place they hold in the hierarchy of virtues is really established by that value, though religion may view them finally from an inner or transcendent perspective" (page 265).Jimmy Carter is well known to acknowledge Niebuhr's influence, but it is striking on reading "Immoral Society" the extent to which Carter has succeeded in sticking to the letter of Niebuhr's precepts. Niebuhr lays out Carter's approach to dispute settlement on page 248: "In every social conflict each party is so obsessed with the wrongs which the other party commits against it, that it is unable to see its own wrongdoing. A non-violent temper reduces these animosities to a minimum and therefore preserves a certain objectivity in analysing the issues of the dispute. ... One of the most important results of a spiritual discipline against resentment in a social dispute is that it leads to an effort to discriminate between the evils of a social system and situations and the individuals who are involved in it. Individuals are never as immoral as the social situations in which they are involved and which they symbolize."The author closes, in 1932, with an historical summary that has not lost its power: "Our age is, for good or ill, immersed in the social problem. A technological civilisation makes stability impossible. ... But the tendencies of an industrial era are in a definite direction. They tend to aggravate the injustices from which men have perennially suffered; and they tend to unite the whole of humanity in a system of economic interdependence. They make us more conscious of the relations of human communities to each other, than of the relations of individuals within their communities. They obsess us therefore with the brutal aspects of man's collective behavior. They, furthermore, cumulate the evil consequences of these brutalities so rapidly that we feel under a tremendous urgency to solve our social problem before it is too late. As a generation we are therefore bound to feel harassed as well as disillusioned. ... Yet there is beauty in our tragedy. We are, at least, rid of some of our illusions. We can no longer buy the highest satisfactions of the individual life at the expense of social injustice."