“[It is] a deeply rooted feature of American life, the ‘I have a right’ syndrome.” – Louis Menand
America is infatuated with rights and rights talk. The allure of rights is the trump card of our times. In the culture wars, it is often the rhetorical weapon of choice, one too often used indiscriminately and incoherently. This problem extends beyond even the possibility of truth to the reality of words summoned free of the constraints of rational thought and humane behavior. Think of them as prompts – a word or set of words is invoked to elicit a certain response, to assert some privilege, or to claim power over another. To be clear: the dilemma, in thought and action, is any notion of rights untethered from some meaningful notion of obligations owed to all people. To sever, as the United States has done, claims of rights from responsibilities flowing from obligations is to invite personal exploitation and political repression.
Case in point: The Second Amendment to the U.S. Constitution provides that “[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In 2008 a divided Supreme Court ruled that “Militia” was synonymous with “individual,” thus one could thereafter claim an individual right to bear arms. Though that ruling announced certain restrictions on that newly crafted right, since then the Court, state lawmakers, and special interest groups have expanded it beyond all rational reason. Even in the face of numerous mass shooting tragedies, the “right” to bear and wield AR-15-type assault weapons continues to be proclaimed with murderous abandon. Ironically, such mass shootings dramatically increase the demand for firearms in their aftermath. Of course, the gun mania is but one example of a far larger rights-talk problem.
What explains all this? There are several answers. First, the notion of rights, standing alone, raises the all-too-real specter of a ruthless master whose rights are immune, or largely so, from qualification. Consider the fact that the Civil War Amendments (designed to combat the “badges of slavery”) were successfully used for decades to protect the largely unqualified rights of robber barons and other vested money interests (see e.g., the infamous Lochner v. New York (1905) decision). And while the schoolbook lesson speaks of “minority” or “counter-majoritarian” rights, that is seldom the case. When it comes to the powerless, rights are slow coming and hard to retain once gained. Ever since the Court handed down its landmark desegregation ruling in Brown v. Board of Education (1954), there has been a nonstop campaign (judicial, legislative and political) to undermine the equality principle announced in that opinion. In other words, too often rights tend to be the prerogative of the powerful. (Legislative gerrymandering is yet another example of this, one that is employed to further dilute the rights of the under-represented.)
Then there is the political parties problem. “Nearly everywhere instead of thinking one merely takes sides: for or against. Such a choice replaces the activity of the mind. This is intellectual leprosy; it originated in the political world and then spread through the land, contaminating all forms of thinking [political, cultural, and religious]. This leprosy is killing us; it is doubtful whether it can be cured . . . .” Thus wrote Weil. Incredibly, what she observed in her 1943 essay about France holds true for us in modern America.
Mindful of that Weilian maxim, there is this disturbing fact: No matter how many innocent lives are claimed by assault weapons, no Republican hoping to stay in office will stand up to the gun lobby. The party-line, after all, is that owning and using a gun is an inalienable constitutional right. Blind faith in the party – or in the party leader, as in the case of Donald Trump – is the be-all and end-all. Even those who inspired or incited the 2021 insurrection take refuge in a First Amendment freedom of expression right – with party approval, of course, or at least party silence when it comes to condemning their party leader.
It is painfully true, yet so many discount it: One cannot reason with a person who does not believe in reason. Facts, logic, and the very idea of reason governing our affairs no longer seem to carry much weight in the toss-and-tumble of today’s party politics. More and more people tend to situate reality into the frames of their own partisan beliefs – a case of a verdict preceding a trial. “What we make of a given moment,” observed Jon Meacham, “is governed less by merits and details and more by the mores and demands of our particular political tribe.”
Then there is the power of words problem. Rights talk is often devoid of meaning precisely because it seeks to have no meaning beyond the purview of privilege. The idea of “the other” and some obligation owed to that person is foreign to such a claim of rights. Moreover, the vernacular of rights, if it is to be dominant, must be expandable and even immune from the rigors of reasoning. There can never be enough of such a right; it must claim the entirety of its domain. (Thus understood, the language and operation of rights are akin to the workings of a laissez-faire marketplace in which “capital” is the all-controlling king.) When it comes to such rights, words have no limits; they are invoked to end discussion not invite it, and these abuses are only compounded by their collective use and hollow repetition.
Next is the problem of rights unmoored from morality. The point here is not to deny that certain rights can be anchored in moral principles, but rather that when rights are detached from ethical obligations, prejudice will likely prevail over justice. Racial justice, for example, is a pointless principle if rights remain unvindicated as was the case of the Civil War Amendments before 1954. Stranger still, when rights are justified by the knee-jerk assertion of some constitutional entitlement ordained by black-robed partisans or duplicitous politicians, the very idea of a moral right is rendered meaningless. Where moral obligation is the measure, rights (properly understood) cease to be subjective and exploitative. The worth of moral right rooted in notions of obligation is not dependent on the conventions of constitutionalism – such a right is concerned with the dignity of the person over and above the utility assigned to it by any given social order.
Finally, there is the problem of rights in conflict. If the name of the cultural game is to champion your rights, then the rights of others soon enough manifest themselves in self-righteous opposition. “Rights are always asserted in a tone of contention,” is how Weil put it. For example, the right to be free from gun violence vs. the right to bear arms; or the right to religious freedom vs. the right to LGBTQ equality; or fetal rights vs. women’s rights; or racial justice affirmative action rights vs. “color-blind” white people’s rights; or workers’ rights vs. employers’ rights; or corporate campaign spending rights vs. fair and equal election rights.
In the Hobbesian mix of the wars of all against all, the idea of obligation is removed from the conceptual equation and political consideration. Just as there is no real sense of the true needs of the other and the obligations inferred from them, there is also no authentic commitment to community, to the common good. There is no social contract, only individual ones with self-serving demands. There is but the primacy of rights, replete with the exploitative character with which such claims are made in a society dedicated to the power principle.
In the end, we are left with a plaguing problem: what to do when rights go wrong? If this question flirts with pessimism, it does so with the aim of sounding a cultural alarm. And if it boldly scrutinizes, in whole or part, a few revered ideas, it does so with the conviction that sometimes true knowledge arrives late at the door.
- Nigel Biggar, What’s Wrong with Rights? (Oxford University Press, 2020)
- Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Mariner Books, 2021)
- Steven A.M. Burns, “Justice and Impersonality: Simone Weil on Rights and Obligations,” Laval théologique et philosophique, vol. 49, no. 3 (1993), p. 477-486.