Much ado about nothing? The emptiness of rights’ claims in the twenty-first century United States

Published date02 September 2009
Date02 September 2009
AuthorGerald N. Rosenberg
Gerald N. Rosenberg
What does it mean in practice to claim a right? Does claiming a right add
to the persuasive power of political demands? Does it clothe political
demands with a moral urgency, setting such claims apart from the
ordinary class of interests? In examining these questions, I suggest that
in practice rights’ claims add little to political discourse. This is because
Americans equate their policy preferences with rights. I find scant
evidence for the belief that Americans have sufficient knowledge of
rights to make them meaningful or that pronouncements of rights have
persuasive power or imbue issues with heightened moral legitimacy.
Since the mid-twentieth century, various groups in the United States have
pressed political claims in the name of ‘‘rights.’’ Whether one looks at the
Revisiting Rights
Studies in Law, Politics, and Society, Volume 48, 1–41
Copyright r2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048004
civil rights movement, the women’s movement, gay rights, welfare rights,
animal rights, etc., the language and symbols of ‘‘rights’’ permeates con-
temporary American politics.
‘‘Not since the heady days of the American
and French Revolutions,’’ Waldron (1987, p. 1) suggests, ‘‘have rights been
used so widely as touchstones of political evaluation or as an idiom for the
expression of political demands.’’ Not only are claims to these various rights
made by lawyers pleading specific cases, but more interestingly, they are
frequently invoked by non-lawyers operating solely in the political realm,
and by ordinary citizens in everyday discourse.
In this chapter I ask, what does it mean in practice to claim a right?
What effects do rights’ claims produce? Does claiming a right add to the
persuasive power of political demands? Does it clothe political demands
with a moral urgency, setting such claims apart from the ordinary class of
interests? Do pronouncements of rights by governmental institutions change
citizens’ views on the underlying substantive issue?
At first glance, one might think that asserting rights is a necessary element of
progressive political change in any democratic system, particularly one like the
United States, based on a written constitution in which certain ‘‘fundamental’’
rights are enshrined. Yet even American experience suggests this is not
the case, for appeals to rights have not always been an important part of
American movements for change. Furthermore, the European democratic
experiencesuggests this view isfalse, too; the assertion of ‘‘rights’’ has not been
a significant part of the political process in most European democracies.
Why are ‘‘rights’’ believed to be important politically? In the standard
literature, the usual answer is that to assert a ‘‘right’’ is to make a special
sort of moral, principled, claim, one of heightened legitimacy. In the
United States, it is often argued that the language and symbolism of rights
originates in the Constitution and has been reinforced by the courts,
particularly in recent decades. If the United States is a nation of laws, then
these rights must be respected, because if they are not, then political
decisions will simply reflect the tyranny of majority preferences. In this view,
decisions such as Brown v. Board of Education (1954), invoking the language
of rights, greatly furthered the equality of African-Americans, and the
explosion of 14th Amendment litigation after Brown expanded the freedoms
of all Americans even further. Thus, judicial action is seen as the major
source of rights-based political change, directly linked to the basic rights
enshrined in the Constitution. The standard literature concludes that the
unique role of the Constitution and courts in the American political system
has brought the notion of rights to center stage and given rights-based
claims heightened efficacy.
More recently, rights have been understood as providing the foundation
for, and structuring, political movements (McCann, 1994;Scheingold,
2004). For example, McCann (1994, p. 6) argues that rights’ discourse can
be ‘‘constitutive of practical interactions among citizens.’’ McCann suggests
that rights’ claims can mobilize individuals to organize and engage in social
struggle, influence the substantive and rhetorical positions they take, and
transform their self-understandings. Claims of rights can influence people to
view existing arrangements in alternative ways. In his study of political
mobilization for pay equity, for example, McCann argues that rights’ claims
led some women to see the wage structure as inequitable and to join the pay
equity struggle. Claims of a right to better pay inspired these women.
In contrast to a focus on rights as coming from courts, the importance of
rights, then, can also be understood as bottom-up and de-centered, forged
by ordinary citizens involved in political movements.
Both understandings of the importance of rights assert that rights’ claims
have an independent and measurable effect on actual political behavior.
The court-centered literature has focused primarily on the rhetorical and
philosophical side of legal theory and has assumed that providing legal
sanction for rights ensures that rights will in fact be protected. But what if
these rights are affirmed by courts but violated in practice? If so, then some
of the attention that is normally paid to constitutional interpretation
needs to be supplemented. Along with exploring the moral or philosophical
justifications for particular rights, or their implications for constitutional
theory, scholars ought also to be examining how and under what conditions
the rights enshrined in the Constitution and invoked by the courts have
greater or lesser impact on political life. This includes not merely substantive
outcomes but also the way in which activists and the public alike use
rights to organize, to evaluate, and to understand politics. This must also
be the case with the bottom-up, de-centered, constitutive approach to
understanding rights. In the simplest terms, when, if ever, and in what ways,
do ‘‘rights’’ and rights’ claims make a difference?
In the following pages, I offer a three-part response. First, I suggest that
in practice rights’ claims add little to political discourse. Rather than
understanding them as claims of heightened normative power, or as
constitutive of people’s understandings of their relationships to authority
structures, I wonder if they are little more than empty rhetoric. Could it be
that Americans reflexively use the language of rights for anything and
everything they want? That claims of rights are little more than a reflexive
and empty rhetoric, the ‘‘um’’ and ‘‘uh’’ of modern American discourse?
Second, I examine Americans’ knowledge and views of political and
Much Ado about Nothing? 3

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