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

• Pages: 1-41
• Published date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048004
• Date: 02 September 2009
• Author: Gerald N. Rosenberg

MUCH ADO ABOUT NOTHING?

THE EMPTINESS OF RIGHTS’

CLAIMS IN THE TWENTY-FIRST

CENTURY UNITED STATES

Gerald N. Rosenberg

ABSTRACT

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.

INTRODUCTION

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

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048004

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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.

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‘‘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.

GERALD N. ROSENBERG2

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