Rights and our common life
Courts know this and nothing more
Now it's my rights versus yours
--A.C. NEWMAN (THE NEW PORNOGRAPHERS)
I know my rights!
And that requires conversation.
Each of the problems of our common life in the 21st century--economic opportunity, environmental sustainability, accommodation of diversity, and so forth--require sustained and ongoing conversation, with everyone involved and contributing. This is hardly a new idea; in the 1830s Alexis de Tocqueville was struck by the vigor of American political discussion.
In certain countries, the inhabitant only accepts with a sort of repugnance the political rights which the law grants him; it seems that occupying him with common interests takes his time away from him, and he likes to shut himself up in a narrow egoism whose exact limit is formed by four ditches topped off by a hedgerow.
From the moment, on the contrary, that the American was reduced to being occupied only with his own affairs, half of his life would be taken from him; he would feel as if there were an immense emptiness in his life, and he would become incredibly unhappy. (Vol. I, Pt. 2, Ch. 6, from the 2000 Hackett abridged edition translated by Stephen D. Grant, p. 99)Individual rights are part of the conversation, but they exist and are exercised in a context that is a community. In her 1991 book, Rights Talk, Mary Ann Glendon argues that America's strong tradition of individual rights has mutated into a political speech that is predominantly self-regarding. Our legitimate concerns with individual autonomy and limiting the power of government has begotten a people that can only talk in terms of "the lone rights-bearer" (p. 47), without regard to any mutual responsibility, the social nature of human life, or "the sorts of broad-based, free-ranging, reasoned processes of deliberation that our constitutional order both invites and requires" (p. 179). The capacity to negotiate among diverse interests to achieve "win-win" solutions is destroyed when those interests are stated as absolute rights.
By indulging in excessively simple forms of rights talk in our pluralistic society, we needlessly multiply occasions for civil discord. We make it difficult for persons and groups with conflicting interests and views to build coalitions and achieve compromise, or even to acquire that minimal degree of mutual forbearance and understanding that promotes peaceful coexistence and keeps the door open to further communication. Our simplistic rights talk regularly promotes the short-term over the long-term, sporadic crisis intervention over systemic preventive measures, and particular interests over the common good. It is just not up to the job of dealing with the types of problems that presently confront liberal, pluralistic, modern societies. (p. 15)Glendon provides a number of examples of the problem, including abortion, where we struggle with an unsatisfying (if opinion polls are to be believed) dialogue that pits the non-negotiable right of the unborn child to life against the non-negotiable right of the pregnant woman to decide the use of her own body. To this I might add the very successful efforts of the National Rifle Association to forestall discussion of gun violence by asserting a non-negotiable right to be armed; the widespread rights of property owners to build regardless of compatibility with the surrounding context; and the power of the states to give energy interests (fracking, pipelines) absolute rights over affected property owners. All this serves to create a winner-take-all political arena that increases anger and probably alienation.
I think it's helpful to distinguish between types of rights. First and foremost on my list is the right to participate in the conversation. That would certainly include voting rights, but also non-discrimination: No religious tests for office, no poll tax, everyone gets to get married, join the military, and so forth. There can't be an open conversation or a common life at all if we have first- and second-class citizens. These rights are so fundamental to our common life that I wouldn't accept any limitations on them, except where they impact the ability of others to participate. (I think of our current campaign financing rubric which allows a few rich people to out-shout the rest of us.)
A second category is the rights essential to quality of life. The U.S. Constitution doesn't address these, but some state constitutions do, and the 1948 Universal Declaration of Human Rights includes the rights to education (Art. 26), rest and leisure (Art. 24), "just and favorable" pay for work (Art. 23) and, in Art. 25, the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Without getting into the weeds of what level of material comfort is adequate, I think extreme poverty blocks the access to economic opportunity which is fundamental to a functional society. Health care, as envisioned by the Affordable Care Act of 2010, is one element of that opportunity.
Another important category would be protections against governmental power (which John Stuart Mill, in On Liberty (1861), would extend to protections against majority power however it is exercised). The Bill of Rights explicitly protects religious conscience, the right to bear arms (however understood), property, the rights of criminal suspects and the jurisdiction of state governments, and by implication personal privacy as well. None of these has historically been understood to be inflexible. I see them as important protections for individuality that should be part of any conversation, but not so absolute as to shut off that conversation. Accommodations to religious employers under the Affordable Care Act seem to me not only appropriate, but important. The assertion currently before the federal courts by the Little Sisters of the Poor that even requiring a religious employer to certify to the government that they're claiming a religious exemption is an infringement of religious liberty, on the other hand, seems to be claiming a privilege to cut off conversation altogether.
Finally, there are assertions of right to some benefit, often but not exclusively material in nature, which I would I would term privileges. Pretty much this means the right to do or have what I want to do or have, against some real or proposed restriction. A number of European countries provide a "right to roam" for walkers on private land. Most American metropolitan areas have considerable areas devoted to free public parking, which might not be stated as a right but certainly has become an expectation. This weekend's Go Topless Day asserts the right of women not to cover their breasts in public. I would include calls for public school prayer in this category, being the desire for some religious tradition to get official blessing or recognition. Some of these ideas might be beneficial, but they strike me as clearly part of the collective conversation rather than precedent to it.
This has been an awfully abstract post, but I think this needs to be set out prior to discussion of other, specific issues that affect (or afflict) our common life. In short, I follow Glendon in arguing that "rights talk" is way overused in American politics, often with the effect of precluding rather than participating in conversation about our common life. That is a luxury we no longer have.
SOURCE: Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (Free Press, 1991). On joint gains or "win-win" solutions, see Paul J. Quirk, "The Cooperative Resolution of Policy Conflict," American Political Science Review 83:3 (September 1989), 905-921. More generally see Roger Fisher, William Ury and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In (Penguin, 3rd ed, 2011); Dean G. Pruitt, Negotiation Behavior (Academic Press, 1981); and probably bunches of books that have come out since I encountered this concept back in the day.