A Tale of Two Rights

INTRODUCTIONAre individual rights a danger to civil society? For almost forty years now, critics of individual rights have argued that such rights damage, rather than support, our national aspirations for equality, community, and democracy. According to civic republicans, these rights insulate the rights holder from communal criticism and legal recourse for the harmful consequences of his rights-protected actions; atomize the rights holder's sense of self, thus limiting his circle of concerns to only his immediate entitlements; and isolate him from the suffering and well-being of his neighbors and co-citizens.1 Critical legal theorists add that, while an individual's rights may enhance his liberty, they may also compromise the equality of others and rhetorically legitimate - or even valorize - the subordinating consequences of the individual's rights- protected behavior.2 According to both groups of critics, individual rights, whatever good they do, also cast democratic processes and democratic outcomes - including those that promote equality - as a source of oppression from which individuals must be protected. These are now familiar charges, made over the past half century by Marxists, legal realists, critical-rights theorists, and civil republicans all. Individual rights, according to their critics, come at some cost to equality, community, democracy, or all three.3 For all of these reasons, on balance, individual rights harm rather than benefit civil society, and do violence to our democratic aspirations.In this Article I hope to complicate these familiar critiques of individual rights. Throughout I contrast two emerging rights paradigms and their effects on our shared civic life, institutions, and projects. The first paradigm is exemplified most vividly by some of our most modern constitutional rights. I argue that these rights do indeed pose a threat to civil society. The second paradigm, however, is rooted not in the Constitution, but in our civil-rights traditions. Our modern civil rights, in contrast to most modern constitutional rights, not only support but are necessary for civil society. Consequently, civil rights pose no threat to civil society, and indeed constitute its legal architecture. I conclude that we should not respond to the critique of rights by jettisoning rights or the idea of rights, but by refocusing and expanding upon our civil-rights traditions.In Part I of this Article I identify and criticize a cluster of constitutional rights, which I argue do tremendous and generally unreckoned harm to civil society, and do so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that I believe these rights exemplify is a "right to exit." On this conception of individual rights, a constitutional right is a right to "opt out" of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades after civic republicans and critical legal theorists mostly had formed their respective critiques of individual rights. Consequently, such thinkers failed to incorporate the notion of constitutional rights into their critiques. The particular exit rights that I enumerate - that is, the rights to exit from the benefits and responsibilities of public projects, including public education, publicly funded policing, civil rights commitments, and public health projects - harm civil society in profound ways not appreciated by rights critics in the 1970s and 1980s. The harm these rights do, to borrow language from the title of Thomas Mann and Norman Ornstein's recent book,4 has turned out to be even worse than it might have seemed in the heyday of our rights critiques. I urge a reinvigorated rights critique that centers on these new rights and new harms.In Part II I discuss a countertrend: the expansion of civil rights beyond those enumerated in the Civil Rights Act of 1964. …