Tragic rights: the rights critique in the age of Obama.

• Author: West, Robin L.
• Position: Pres. Barack Obama

TABLE OF CONTENTS INTRODUCTION I. THE RIGHTS CRITIQUE IN THE AGE OF OBAMA II. TRAGIC RIGHTS III. THE FAILURE OF COMMUNITY CONCLUSION INTRODUCTION

Rights, Mark Tushnet once opined, are positively harmful to the party of humanity. (1) Conceding some exceptions--most notably the civil rights victories of the 1950s through 1970s--Morton Horwitz observed around the same time that U.S. constitutional rights have historically overwhelmingly served to further entrench the holdings of the propertied class against attempts at democratic redistribution, thereby discrediting both the idea of equality and the processes of democracy. (2) Rights, and particularly rights to privacy, Catharine MacKinnon argued in a series of searing articles in the 1980s, do little but legitimize and protect oppression within intimate spheres of social, sexual, and economic intercourse, thus injuring women's interests in security and equality far more than could any unwanted pregnancy. (3) Antidiscrimination rights, Alan Freeman urged, do almost nothing to address, and indeed do quite a bit to further insulate, the subordination of racial minorities that is the product of private and institutional forces, which purportedly neutral government decisions then validate and further entrench. (4) Rights against government intervention into private agreements or contracts might guard the rights holder against an over-reaching or moralistic government, Bob Gordon and others argued, but by doing so they strengthen the hand of the rights holder against weaker parties within the sphere of contractual insularity constructed by the right. (5)

These claims, and others like them, constituted what came to be called in the 1980s the "rights critique." (6) It was authored by a group of scholars, sometimes referred to as the "rights critics." (7) The rights critique, in turn, was the moral heart of the Critical Legal Studies (CLS) movement. (8) It was also, for a brief moment in time, ubiquitous. It may have set your teeth on edge, but you could not get away from it even if you tried. (9) But you should not have wanted to escape exposure to these critical challenges to the moral righteousness of rights, which were then and are still the moral coin of the realm of law, as Patricia Williams poignantly argued in her influential--and unwittingly fatal response. (10) The rights critique challenged rights' moral stature. As such, it was one of the most vibrant, important, counterintuitive, challenging set of ideas that emerged from the legal academy over the course of the last quarter of the twentieth century. (11) It deserves recognition as a signature accomplishment.

The rights critique has also virtually disappeared from contemporary legal scholarship and pedagogy. We do not hear much, if anything, of rights' wrongs anymore--of their subordinating, legitimating, and alienating effects. The beginning of this silence can be traced to approximately 1990, when both founders and their critics started widely proclaiming the death of the CLS movement. (12) The rights critics have been particularly mute, however, during the age of Obama, from 2008 to the present. (13)

This muteness, I believe, is strange. The three-pronged rights critique articulated by the rights critics--that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetuate greater injustices than they address, and socially alienate us from community--is, if anything, much easier to defend and explain today than it was then, in liberal rights' heyday. Then, to so many people, constitutional rights, welfare rights, civil rights, positive rights, human rights, the very idea of rights--rights per se (14)--were seemingly a vehicle for liberation from both oppression and imperialism. Then, the gains to be had from counter-majoritarian institutions, such as individual rights, constitutionalism, judicial review, and an independent judiciary friendly to the party of humanity and ready to enforce rights, were still so palpable, so fresh, so present. Then, demanding rights still tasted so right in the mouths of the oppressed. (15) Thirty years later, in the age of Obama, it is much easier to see the harms all those cherished and lauded rights have done, as I will briefly argue below. (16)

How to explain the disappearance of the rights critique? One possibility, much endorsed by the critics themselves, is that the rights critique collapsed under the weight of responses from feminists and minority scholars, who pushed back against the critics' characterization of rights as regressive and alienating. The responders found in the liberal rights traditions a path to greater racial and sexual justice--even assuming the legitimating, subordinating, and alienating features the rights critics noted. (17)

Others have urged a different explanation: that the rise of a conservative understanding of state power has forced an alliance between critical scholars and liberal rights aficionados, in effect a temporary truce in the face of a larger menace. (18) On this account, the rights critique was a friendly or internal criticism of liberalism, and in the face of a common enemy, the differences were muted. Elsewhere I have suggested a different explanation: that the premature demise of the rights critique is best explained by reference to shortcomings internal to the critique itself. (19) My suggestion in other work, in summary, has been that there was an internal tension, and perhaps a fatal contradiction, in the original presentation of the rights critique, which it simply did not survive over time. (20) The "rights critique" was almost always paired with, and sometimes viewed as a part of, the "indeterminacy critique"--that all of law, including law that is captured in rights, is indeterminate both in meaning and application. (21) But if the indeterminacy critique is correct, then not only rights worship, so to speak, but also the rights critique, is in trouble: rights cannot harm any more than they can liberate, if they are inconsequential or meaningless. As between the critique of rights put forward on moral and political grounds--that rights alienate, subordinate, and legitimate--and the critique of rights as indeterminate, the latter simply won out. It has been completely absorbed into utterly mainstream legal thought. The moral and political critique of rights, though, has virtually disappeared.

For my purposes here, the cause of the rights critique's disappearance is not particularly important. What I argue in this Article is that whatever the reason, the disappearance of the rights critique is unfortunate. We need the rights critique, or some modernized, revitalized version of it, in the Obama era and in whatever era might follow, perhaps even more than when it was first conceived. More to the point, we need a critical way of thinking about rights that not only survives across generations but also adapts to the changing contours of rights. We need a body of scholarship critical of rights that is sufficiently robust to withstand internal disagreement, the winds of political correctness, the anger of compatriots who may feel abandoned or worse, and the rise or fall of various political alliances. The rights critique we have inherited from the 1980s, however, is virtually none of these; it did not prove robust, longstanding, or regenerative. Putting the points together yields this moral: we need to resuscitate and revise this line of thought, not bury it. In order to do so, we will have to first uproot it, shear its fading or dead branches, and then replant it in more generative soil. This task should not be so hard.

In Part I below, I first attempt a summary of the rights critique and then explain its continuing relevance to Obama-era rights. Parts II and III suggest how we might refashion the rights critique in a way that better reflects the sometimes tragic dimension of contemporary Obama-era rights. In the Conclusion I draw some general conclusions for the state of our politics.

1. THE RIGHTS CRITIQUE IN THE AGE OF OBAMA

   Rights harm us, according to the Bill of Particulars put forward by the rights critics of the 1980s, in three distinct ways. First, even apparently liberating rights that seemingly expand the sphere of individual liberty also subordinate, at least according to the first and perhaps the most important of the rights critics' charges. Rights to privacy protect not only private decision making against the prying and moralistic eye of the state but also, even if inadvertently or indirectly, private subordination of vulnerable family members. (22) Rights to liberty of contract protect private choices of individuals but also the economic subordination of laborers by employers, (23) and rights to speech protect ideas but also, arguably, pornography and private verbal, racial, or sexual harassment. (24) Whatever else rights do, Horwitz, Tushnet, MacKinnon, and other critics argued, rights that protect spheres of privacy, liberty, or autonomy against state intervention also, and by virtue of that protection, facilitate the subordination of the weak by the strong, within whatever spheres of insularity, entitlement, and nonintervention from the government the particular right in question creates. Thus, the first charge: rights subordinate.

   Second, by protecting against particularized but well-defined sorts of unfair relations in the private realm, even those rights that do operate to specify limits on a generalized liberty in the interest of equality--such as limits on our liberty to intentionally discriminate-also run the risk of legitimizing the larger unjust social world within which those particularized moments of injustice are framed. The censure of the intentional discriminator, and our right to be free of him, for example, legitimates not only structural or unintentional racism but also an unjust classism. Our condemnation of the errors in an...