The right's revolution?: Conservatism and the meaning of rights in modern America

• Date: 02 September 2009
• Published date: 02 September 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000048005
• Pages: 43-67
• Author: Thomas Hilbink

THE RIGHT’S REVOLUTION?:

CONSERVATISM AND THE

MEANING OF RIGHTS IN

MODERN AMERICA

Thomas Hilbink

ABSTRACT

While many see the 1960s as the era of a ‘‘rights revolution’’ in American

law, this article looks back from the present moment of conservative legal

dominance to better understand the ways in which conservative ideas

began to grow during the heyday of legal liberalism. Using recent histories

of post-1945 grassroots conservatism, the author argues that conservative

rights claims – while often legally questionable – constituted for many a

powerful and persuasive understanding of the Constitution. Due to this

popular conservative jurisprudence’s endurance and influence, its exis-

tence in the 1960s forces reconsideration of understandings of the 1960s

as the era of the ‘‘rights revolution.’’

INTRODUCTION

That the 1960s marked the era of the ‘‘rights revolution’’ is a widely

accepted truth, in both American jurisprudence and sociolegal scholarship.

Revisiting Rights

Studies in Law, Politics, and Society, Volume 48, 43–67

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000048005

43

Charles Epp’s widely (and rightly) lauded book The Rights Revolution

(1998) succinctly makes the case for this view. In the United States, during

the 1960s, the Supreme Court devoted nearly 70 percent of its docket to

individual rights claims. The court had ‘‘essentially, proclaimed itself the

guardian of the individual rights of the ordinary citizen. In the process,

the Court created or expanded a host of new constitutional rights, among

them virtually all of the rights now regarded as essential to the Constitution:

freedom of speech and the press, rights against discrimination on the basis

of race or sex, and the right to due process in criminal and administrative

procedures’’ (Epp, 1998, pp. 1–2). Epp carefully acknowledges that the

extent of the change brought on by the Court’s adopted role was limited

by both erosion of those rights due to opposition and the limits of

law’s power in action. Yet, he holds that ‘‘the transformation has been real

and it has had important effects’’ (Epp, 1998, pp. 1–2). Epp is correct.

The ‘‘rights revolution’’ he describes has impacted American society in some

important ways. But looking at the present landscape of American law,

I can’t help but wonder if what happened in the 1960s truly constituted a

revolution.

The decade since Epp’s book has seen a major change in the landscape of

American law, changes that suggest the celebration of the 1960s as the era of

a ‘‘rights revolution’’ needs to be reconciled with the fact that the era also

saw the birth of what might be considered the ‘‘right’s revolution.’’ The end

of the Cold War, the rise of a government dismissive of constitutional rights,

and the arrival of a Supreme Court openly hostile to ‘‘the individual rights

of the ordinary citizen’’ have all served to undermine the idea that the 1960s

changed the nation to the extent once widely believed. More significantly,

perhaps, recent events force us to ask whether it was the left or the right

who left the 1960s on the rise. From today’s perspective, it appears that the

conservative conception of rights borne out of reaction and backlash to the

era of Warren Court and civil rights represents a counter-revolution that

must be accounted for in considering the long-term impact of the rights

revolution (cf. Blasi, 1983;Schwartz, 1998).

June 2007 saw the Supreme Court hand down its decision in Parents

Involved in Community Schools v. Seattle School District No. 1 (2007),a

decision that called into question whether the ‘‘rights revolution’’ has had

the enduring power attributed to it in countless celebrations of the 50th

anniversary of Brown v. Board of Education just four years ago. In that case,

the Roberts Court all but overturned what can be considered the crowning

achievement of the Warren Court’s revolution: Brown v. Board of Education

(1954, 1955). Writing for a plurality of the Court, Chief Justice Roberts

THOMAS HILBINK44