Rights Talk

1. American Rights Talk: A Stark, Impoverished Dialect

Our current American rights talk is but one dialect in a universal language that has developed during the extraordinary era of attention to civil and human rights in the wake of World War II. It is set apart from rights discourse in other liberal democracies by its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities.

A Pervasive Problem. Public interest in politics in the United States is at an all-time low, with widespread apathy, cynicism, and ignorance concerning government. Critical questions are difficult to define, let alone debate and resolve, largely due to the impoverishment of our political discourse. This is exacerbated by the "sound-bite" culture, which favors simplistic, strident language.

Corroding Social Foundations. This distinctive "rights talk" seeps into less public contexts, carrying a "rights mentality" into spheres where personal responsibility and civic obligation traditionally thrive. An intemperate rhetoric of personal liberty thus corrodes the very social foundations upon which individual freedom and security ultimately rest. It hinders genuine exchange of ideas about matters of high public importance.

Consequences of Simplicity. The rapidly expanding catalog of rights, extending to everything from trees to smokers, multiplies occasions for collisions and risks trivializing core democratic values. Framing nearly every social controversy as a clash of absolute rights impedes compromise, mutual understanding, and the discovery of common ground. This near-aphasia concerning responsibilities makes it seem legitimate to accept the benefits of a democratic social welfare republic without assuming corresponding personal and civic obligations.

2. The Illusion of Absolute Rights: From Property to Privacy

To speak in this careless fashion is not without consequences; in fact, it sets us up to fail twice over—first, by cheapening or betraying our own meaning (The flag “‘stands for the fact that this is a country where we have the right to do what we want’’), and second, by foreclosing further communication with those whose points of view differ from our own.

Everyday Absolutism. Americans frequently deploy the rhetoric of rights as though their particular interests trump everything else, often couching claims in absolute terms. Examples include:

• The flag-burning debate, where "right to do what we want" was a common defense.
• Property claims like "It's mine and I can do what I want with it."
• Resistance to regulations, asserting a right to do as one pleases in one's own home.
  This careless manner of speaking promotes unrealistic expectations and inhibits dialogue.

Historical Roots in Property. The exaggerated absoluteness of American rights talk traces back to John Locke's influential ideas about property, where he asserted "every Man has a Property in his own Person" and in his labor. William Blackstone further cemented this by describing property as "sole and despotic dominion," making it the cardinal symbol of individual freedom. This Lockean-Blackstonian paradigm, interpreted literally, became a template for other American rights.

Reality vs. Rhetoric. Despite the rhetoric, property rights have always been subject to reasonable regulation (e.g., zoning, eminent domain). However, the illusion of absoluteness persisted, transferring to new constitutional rights like privacy. The Supreme Court's privacy jurisprudence, particularly in cases like Roe v. Wade, initially presented the right in near-absolute terms, leading to difficulties in establishing principled limitations and fostering political acrimony.

3. The Lone Rights-Bearer: Neglecting Interdependence

Over himself, over his own body and mind, the individual is sovereign.

Individualism's Ascent. Eighteenth-century rights were preeminently those of "separated, independent individuals," a concept Marx criticized as "the separation of man from man." This notion was deeply embedded in American legal and political culture, fostering the idea of an inviolable private sphere and the "right to be let alone." This individualistic framework often overlooks the inherent social dimensions of human existence.

Privacy's Evolution. The "right to privacy," articulated by Warren and Brandeis, initially sought to protect an "inviolate personality" akin to property. However, its constitutionalization in cases like Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) dramatically shifted its focus. Eisenstadt severed privacy from marriage and family, establishing it as an individual right to be "let alone," marking a substantial acceptance of Mill's ideas about freedom of conduct.

Consequences of Isolation. This radical individualism, particularly evident in abortion rights jurisprudence, often leaves individuals "isolated in their privacy," neglecting the social support systems and responsibilities that underpin true freedom. For example, the emphasis on a woman's individual right to choose in abortion cases has made it easier to treat pregnancy and child-rearing as solely her responsibility, often without adequate social or paternal support. This contrasts sharply with European "rights of personality" which explicitly acknowledge the social dimension of the individual.

4. The Missing Language of Responsibility: No Duty to Rescue

[T]he law has persistently refused to impose on a stranger the moral obligation of common humanity, to go to the aid of another human being who is in danger, even if the other is in danger of losing his life.

The "Bad Samaritan" Rule. American tort law traditionally upholds a "no-duty-to-rescue" rule, meaning individuals are not legally obligated to aid a stranger in peril, even if they could do so without risk. This principle, exemplified by cases like Yania v. Bigan where bystanders watched a man drown, often shocks laypersons and suggests a legal condonation of irresponsibility. It distinguishes sharply between actively causing harm and passively failing to prevent it.

Governmental Duties. This no-duty principle has migrated into constitutional law, notably in DeShaney v. Winnebago County Department of Social Services. The Supreme Court ruled that the Constitution generally confers "no affirmative right to governmental aid," even when necessary to secure life, liberty, or property. This means government officials, like police or social workers, are not constitutionally obligated to protect individuals from private violence, unless a "special relationship" (e.g., incarceration) exists.

Comparative Contrast. This American legal silence on affirmative duties stands in stark contrast to many European legal systems. These systems often:

• Criminalize the failure to rescue, emphasizing law's role in reinforcing minimal moral standards.
• Include constitutional commitments to social welfare, recognizing the state's duty to promote citizens' well-being.
  This difference reflects a more integrated view of law and morality in Europe, compared to the strict separation advocated by influential American jurists like Oliver Wendell Holmes, Jr.

5. The Overlooked Dimension of Civil Society: Communities Under Siege

In a society where the seedbeds of civic virtue—families, neighborhoods, religious associations, and other communities—can no longer be taken for granted, this is no trifling matter. For individual freedom and the general welfare alike depend on the condition of the fine texture of civil society—on a fragile ecology for which we have no name.

Beyond Individual and State. American political discourse struggles to account for the social dimensions of human personhood and the vital role of intermediate groups. This conceptual deficiency makes it difficult to articulate and defend the interests of communities, especially when they face threats that are not easily framed as individual rights violations or state imperatives. The focus remains largely on individuals, market actors, and the state.

Community Interests Ignored. Communities often find themselves caught between individual rights and state power, unable to voice their collective losses. Examples include:

• Poletown: Residents couldn't articulate the loss of "rich neighborhood life; shared memories and hopes; roots; a sense of place" when their community was destroyed for a factory.
• Youngstown: Workers and community groups struggled to assert a "community property right" against steel mill closings, as American law recognized no such concept.
  These instances highlight the vulnerability of social networks when legal and political language lacks a framework for their protection.

The "War Over the Family". Debates about family policy are often polarized, focusing on "traditional" versus "nontraditional" forms, or laissez-faire versus extensive government programs. This "war of words" frequently overlooks the family's crucial political importance as a primary site for nurturing civic virtues and educating future citizens. The absence of a robust language of sociality hinders a comprehensive approach to supporting child-raising families and the broader social ecology they depend on.

6. American Rights Insularity: A Missed Opportunity for Learning

It is remarkable that we are so little inclined to give ourselves the benefit of considering how other liberal pluralistic democracies approach the many vexing legal problems that we have in common.

Global Ignorance. American legal culture exhibits a striking insularity, with the Supreme Court rarely consulting foreign jurisprudence on major legal issues, despite acknowledging internal shortcomings. This contrasts sharply with judges and scholars in other liberal democracies who actively study and adapt American legal materials, often with greater sophistication and critical awareness. This one-way "overseas trade" in rights ideas limits our own capacity for self-correction.

Bowers v. Hardwick vs. Dudgeon. The U.S. Supreme Court's decision in Bowers v. Hardwick (1986), upholding a Georgia sodomy statute, starkly illustrates this insularity. The majority and dissenting opinions largely ignored the European Court of Human Rights' Dudgeon v. United Kingdom (1981) decision, which found similar laws violated privacy rights. The European Court's analysis was more nuanced, considering:

• The "pressing social need" for such laws.
• The "margin of discretion" for national authorities.
• The "proportionality" of restrictions to legitimate aims.
  This allowed the European Court to protect privacy while acknowledging societal moral concerns, a balance largely absent in the American ruling.

The One-Way Trade. While American constitutional design and judicial interpretations have inspired other nations, foreign jurists often engage in "resolute selection," adapting elements that suit their contexts and rejecting others. They frequently integrate American ideas with their own traditions of sociality, responsibility, and inherent limits on rights. By remaining resolutely inward-looking, the U.S. misses opportunities to enrich its own rights tradition and develop more coherent, persuasive legal reasoning by learning from the successes and failures of others.

7. Refining Rights Rhetoric: A Call for Balance and Sociality

The very heterogeneity that drives us to seek an excessively abstract common language may indeed be one of our most promising resources for enriching it.

The Need for Transformation. The current strident rights rhetoric disserves American democracy by impeding reasoned discussion, eroding respect for others, and hindering long-range problem-solving. Its legitimation of individual and group egoism stands in opposition to the Constitution's goals of forming a more perfect Union, establishing Justice, and promoting the general Welfare. Language, with its powerful channeling effects on thought, is central to this dilemma and its potential resolution.

Untapped Indigenous Resources. Despite the pervasive individualistic public rhetoric, cooperative and relational patterns of living persist in America. Untapped resources for refining our discourse include:

• Family Talk: The "second language" of households, rich in lore about relationships, obligations, and long-term consequences.
• Women's Voices: Insights from women as primary caretakers and educators, emphasizing values of care, relationship, and contextuality.
• Legal Profession's Ethos: The daily work of most lawyers involves planning, negotiation, and dispute resolution, characterized by civility, nuance, and a focus on fulfilling responsibilities rather than just asserting rights.
• Immigrant and Religious Groups: Traditions of stewardship, community, and mutual aid.

Reclaiming Public Deliberation. Political renewal requires leaders to provide models of reasoned discussion and actively create opportunities for dialogue. This means fostering environments where complex ideas can be exchanged, and where citizens learn to balance individual freedom with responsibility, and personal interests with the common good. The challenge is to draw on America's diverse cultural heritage to speak to "the better angels of our nature," moving beyond the simplistic individual-state-market framework to embrace a more ecological view of society.