RightsTalk: The Impoverishment of Political Discourse
by Mary Ann Glendon
(Free Press, 288 pp., $22.95)
The Bill of Rights has now been part of the American Constitution for 200 years, In the very recent past, that short document has helped to inspire reform movements throughout the world — not merely in the Soviet Union, Hungary, Romania, Poland, and East Germany, but in such places as South Africa, China, and Taiwan as well. It is nothing short of remarkable, therefore, that this bicentennial year for the Bill of Rights has come at a time when the very concept of rights, or of a polity pervaded by rights, is under sharp attack in America.
The attack is growing in influence, and it cuts across ideological lines. Many of the Supreme Court's recent decisions embrace the idea that the creation of rights can be destructive to democratic governance. In their recent deliberations, Congress and the executive branch have been increasingly attentive to the view that government, instead of recognizing rights, should encourage people to exercise greater responsibility. On this view, those who are disadvantaged should take their welfare into their own hands; and those who are advantaged should respond not to rights laid down by the state, but to their own sense of responsibility to people in need. If the 1960s and the early 1970s were an era of rights, it seems likely that the 1990s will be a period in which responsibilities move increasingly to the fore.
Of the many recent challenges to rights-based thinking, Mary Ann Glendon's book stands out for its clarity, its moderation, its appreciation of the good things that rights do, its sense of history, its compassion, and its use of comparative materials. Glendon defies easy categorization as a "liberal" or a "conservative," and crosses disciplinary boundaries, too. Her book provides an especially good occasion for a general assessment of an important new movement.
Glendon's basic claim is that American political debate, especially since the New Deal, has come to center on a bewildering and proliferating array of "rights." These include "preventing the abuse and neglect of children, improving the treatment of the mentally and physically disabled, eliminating discrimination based on lifestyle, protecting consumers from sharp practices, preventing cruelty to animals, and safeguarding the environment." Some people think that the growing list of rights is an important or precious social achievement, supplementing a catalog of protected interests started but hardly finished in the founding period. Glendon disagrees. She believes that America's transformation into "the land of rights" has had harmful, even disastrous consequences.
She offers three objections. First, she complains that rights have a strident and absolutist character, and for this reason impoverish political discourse. They do not admit of compromise. They do not allow room for competing considerations. They impair and even foreclose deliberation. Rooted in nineteenth-century ideas of absolute sovereignty over property, they are ill-adapted to what we usually need, that is, a long discussion of trade-offs and competing concerns. If rights are (in Ronald Dworkin's phrase) "trumps," they are for that very reason harmful to the difficult process of accommodating different goals and considerations in deciding about such thorny problems as, say, abortion and plant closings.
Glendon's second objection is that rights are overly individualist. They miss the "dimension of sociality" and posit selfish, isolated individuals asserting what is theirs rather than participating in communal life. They neglect the moral and social dimensions of important problems. The right of privacy, for example, has emerged as an individual right, rooted in the "property paradigm" and loosened from connections to others. Inattentive to the unborn or to the situation of mothers, American law has truly left the pregnant woman alone, without people "willing to help her either to have the abortion … or to keep and raise the child…." Similarly, American law is unequipped even to describe the harms faced by a community destroyed by the closing of a plant employing most of its members, which include the loss of "a rich neighborhood life; shared memories and hopes; roots; a sense of place." On Glendon's view, Americans face a crucial "linguistic and conceptual deficiency," and rights talk is a principal culprit. And because rights are claimed by individuals, they promote and encourage a community whose members think of social problems in the most narrow, self-interested terms.
Glendon's third objection is that an emphasis on rights lends to crowd out the issue of responsibility. In our law and our public discourse, it is rare to find the idea that people owe duties to each other — or that civic virtue is to be cultivated, prized, even lived. Glendon devotes a good deal of space to the "duty to rescue," a duty not recognized by American law. If a person ignores someone who is drowning, he will not be held accountable, even if rescue could occur with little effort. Glendon deplores this result, arguing at a minimum for a statement, in law, that such a duty exists.
Along similar lines, Glendon challenges the view (on which the current Supreme Court is increasingly insistent) that the Constitution imposes no affirmative duties on government. She suggests, though with some ambivalence, that police officers should be obliged to protect people from serious threats, and that social workers should be under a duty to protect children from domestic violence when they are on notice that such violence will occur. Above all, she is concerned that judicial decisions that fail to recognize these duties have had harmful effects on public discourse and social understandings.
Glendon is saying much that is true and important. References to rights sometimes do stop discussion in its tracks. Even worse, they can be conclusions masquerading as reasons. Consider, for example, the current debates over violent pornography, hate speech at the university, or advertising for cigarettes. To say that any restriction on these forms of expression violates the "right to free speech" may in the end be correct; but this requires a long and complex argument, not a shorthand phrase. Often it is necessary to be detailed and concrete about the social consequences of competing courses of action. The invocation of "rights" can be a serious obstacle to this process.
Moreover, efforts to think about social and economic problems in terms of rights can obscure those problems. A claimed right to clean air or water, or safe products or workplaces, makes little sense in light of the need for close assessment, in particular cases, of the advantages of greater environmental protection, or more safety, as compared with the (sometimes) accompanying disadvantages of higher prices, lower wages, less employment, and more poverty. To the extent that the regulatory programs of the 1970s were billed as vindications of "rights," they severely impaired political deliberation about their content. And it seems correct, too, to say that civic virtue — responsibility to one's neighbors and to one's nation — is an important part of citizenship, and an aspect of citizenship that is currently neglected in public discussion or social practice.
And yet, for all its virtues, Glendon's discussion, and the current devaluation of rights in general, seem to me to suffer from two very serious problems. The first is that many rights encourage precisely the forms of deliberation and communal interaction that Glendon favors. A wide range of protected interests count as "rights," and Glendon does not make some important distinctions. The second problem is that she seems to think that the explosion of "rights talk" accounts for a failure of social responsibility. In fact, the opposite is more nearly true.
Often Glendon writes as if rights and duties are opposed, or as if those who favor the former are completely different from those who favor the latter. As she has it, rights are individual, atomistic, selfish, crude; responsibilities are collective, social, altruistic, nuanced.
But all such adjectives are inadequate. The right to freedom of speech is a precondition for democratic deliberation; it keeps open the channels of communication; it is social in character; it ensures that people can speak with each other. The right to associational freedom is meant precisely to protect collective action and sociality. The right to a jury trial is hardly atomistic: quite the contrary, it ensures a role for the community in adjudicative proceedings. The right to vote protects collective processes of governance. The right to be free from racial discrimination is not anti-social; it ensures communal decency by protecting against the exclusion of subordinated groups. Even the right to property can be understood not as a method for protecting self-interested acquisition, but instead as an indispensable condition for citizenship. If your property can be taken from you at the government's whim, you will not have the independence and the security that will permit you to criticize the government openly.
In an important sense, moreover, rights and duties imply each other. They are correlative. To say that someone has a right is to say that someone else has a duty. It I have a right to property, other people have a duty not to trespass on what I own. If I have a right to be free from racial discrimination, you have a duty to ignore the color of my skin. The right not to be murdered imposes a duty on people not to take the lives of others. Not only do rights create duties, but the imposition of a duty also serves to create a right.
Consider, in this connection, one of Glendon's particular concerns, the question of whether we should create a duty to help others. Glendon's discussion comes close to an argument not only for a new duty, but also for a new right: a right to assistance, to be granted to vulnerable people and held by them against both other people and the government. Glendon herself refers to Franklin Roosevelt's proposed "Second Bill of Rights," which included the right to adequate food and clothing, to a decent home, to adequate medical care, to good education, and to a useful and remunerative job. Now, these are rights, and their invocation represents a form of rights talk; but they certainly reflect a sense of collective responsibility. Since rights imply duties simply as a matter of logic, and vice versa, it is not easy to understand the claim that we need duties rather than, or in addition to, rights.
That claim faces some related difficulties as well. Rights of the most traditional sort (including property) may be the necessary condition for enabling a sense of collective responsibility to flourish. Moreover, a principal characteristic of totalitarian states consists precisely in the endless cataloguing of responsibilities owed by citizens to the state.
This point suggests a broad conclusion about the recent criticism of rights. Those who believe in more reflective public deliberation should not make such a general criticism, but instead offer a fine-grained inquiry allowing us to identify the sorts of interests that cannot be intruded on without special justification. Surely such an inquiry will justify a redescription of certain interests in terms that have nothing to do with rights: consider environmental protection or plant closings. But equally certain, many "rights" will survive the inquiry.
Of course these basic claims would not entirely satisfy Glendon, or other critics of rights. For them, the problem consists partly in the constant resort to the legal system, rather than the use of public deliberative processes and, best of all, of self-help and non-governmental entities. It may be the peculiar interaction between American individualism and "rights talk," rather than rights themselves, with which Glendon is most concerned. On this view, the problem is not so much rights in general, but rights that are highly individualist and associated with personal self-interest and the short term. And to the extent that Glendon is seeking to revive a richer and more differentiated kind of public debate, and capture greater attention for the possibilities of private organizations, she is entirely persuasive. The mind-numbingly familiar oppositions of matched legalistic rights — pro-life vs. pro-choice, associational freedom vs. non-discrimination, business autonomy vs. employment rights — are part of the culture of the sound bite, which provides no help to those seeking to think through, or to assist people with, complex realities.
But I do not think that Glendon has sorted out the relationship between "rights talk" and "the impoverishment of political discourse." She suggests that political discourse is in significant part a creature of courts and law. But this is an empirical claim, and it may not be true. Political discourse is often impoverished, and correctives for the current situation should be a principal concern of current reformers. If one looks at the prominent places for political discussion — say, the television and most popular radio stations — one will find little attention to public issues, and such attention its there is appears sensationalistic, prurient, sentimental, and banal.
But I wonder whether this phenomenon can be attributed to "rights talk." It is, far more plausibly, a product of the demands of the broadcasting market. If Glendon's concern is with impoverished political discourse, she might focus on the norms and the practices of those who impart political information — on their responsibilities, and on the legal framework, or rights, under which they undertake those responsibilities. There is enormous room for reform here, drawing on experience in other nations and involving changes both in private sector practices and in the regulatory system governing the media. For example, the government might offer larger subsidies to high-quality broadcasting or encourage more attention to public issues through licensing policies. "Rights" are hardly the major culprit.
Finally, and most important, Glendon suggests that our emphasis on rights has caused a weakened sense of social responsibility. This claim is plausibly true in many settings; but in an important respect Glendon seems to have things backward. We might look again at the abortion problem, which, for Glendon, exemplifies the hazards of rights-based approaches. She persuasively shows that it is unhelpful to think of abortion in terms of a right to "privacy" — a word that does not appear in the Constitution at all, and that in any case fails to come to grips with the abortion question. To oppose the abstract "right to life" with the equally abstract "right to choose" is for her entirely inadequate. We need instead to develop methods with which to protect unborn life while simultaneously providing help and support for mothers.
Surely it is correct to say that in a society ill which duties to the vulnerable were taken seriously, the case for a right lo abortion would be far weaker. In such a society, men as well as women would be required (by social norms, if not by law) to devote their bodies to the protection of their children — through, for example, compulsory blood donations or kidney transplants. In such a society, women who need help would get help — before, during, and after pregnancy. Most important, in such a society restrictions on abortion would be based on a general and neutral form of compassion for the vulnerable, rather than the now pervasive desire — prominent, though not universal, in the pro-life movement — to control women's reproductive capacities, and by means of that control to continue a system of discrimination that is based of sex.
This is not, of course, the society in which we live. If one looks at the context in which restrictions on abortion take place, at their real purposes and their real effects, then the abortion right is most plausibly rooted not in privacy but in the right to equality on the basis of sex. Current law nowhere compels men to devote their bodies to the protection of other people, even if life is at stake, and even if men are responsible for the very existence of those people. Study after study has shown that current restrictions on abortion could not be enacted without the active support of those who believe that such restrictions are an important means of reasserting traditional gender roles. And under current conditions, women who need social assistance or help from fathers do not get nearly enough — not merely during pregnancy, but before and after as well.
If all this is the case, the very existence of the abortion right can be seen as a response to a failure of social responsibility. And in this lies a very large lesson. Often rights emerge precisely because of the refusal of private and public institutions to recognize and to carry out their duties. When the environment is degraded, or when the vulnerable are simply left to fend for themselves, it should be unsurprising to find vigorous claims for "rights." The claims for a right to clean air and water, to food, to a decent place to live, to a safe workplace, or to "free reproductive choice" — all these must be understood in their context, as responses to failures of social responsibility.
Glendon is entirely persuasive in asserting that rights-based arguments often obscure the problems at hand. Still, it would be unfortunate if her strong argument were taken as a reason lo ignore or to disparage those who are proclaiming their rights, rather than to improve the conditions that have made it necessary for people to resort to proclamations of rights in the first place.
Cass R. Sunstein, Karl N. Llewellyn Professor of Jurisprudence at the University of Chicago, is the author of (Harvard University Press).
By Cass R. Sunstein