Tragic Rights: The Rights Critique in the Age of Obama

TABLE OF CONTENTS INTRODUCTION I. THE RIGHTS CRITIQUE IN THE AGE OF OBAMA II. TRAGIC RIGHTS III. THE FAILURE OF COMMUNITY CONCLUSION INTRODUCTION Rights, Mark Tushnet once opined, are positively harmful to the party of humanity. (1) Conceding some exceptions--most notably the civil rights victories of the 1950s through 1970s--Morton Horwitz observed around the same time that U.S. constitutional rights have historically overwhelmingly served to further entrench the holdings of the propertied class against attempts at democratic redistribution, thereby discrediting both the idea of equality and the processes of democracy. (2) Rights, and particularly rights to privacy, Catharine MacKinnon argued in a series of searing articles in the 1980s, do little but legitimize and protect oppression within intimate spheres of social, sexual, and economic intercourse, thus injuring women's interests in security and equality far more than could any unwanted pregnancy. (3) Antidiscrimination rights, Alan Freeman urged, do almost nothing to address, and indeed do quite a bit to further insulate, the subordination of racial minorities that is the product of private and institutional forces, which purportedly neutral government decisions then validate and further entrench. (4) Rights against government intervention into private agreements or contracts might guard the rights holder against an over-reaching or moralistic government, Bob Gordon and others argued, but by doing so they strengthen the hand of the rights holder against weaker parties within the sphere of contractual insularity constructed by the right. (5) These claims, and others like them, constituted what came to be called in the 1980s the "rights critique." (6) It was authored by a group of scholars, sometimes referred to as the "rights critics." (7) The rights critique, in turn, was the moral heart of the Critical Legal Studies (CLS) movement. (8) It was also, for a brief moment in time, ubiquitous. It may have set your teeth on edge, but you could not get away from it even if you tried. (9) But you should not have wanted to escape exposure to these critical challenges to the moral righteousness of rights, which were then and are still the moral coin of the realm of law, as Patricia Williams poignantly argued in her influential--and unwittingly fatal response. (10) The rights critique challenged rights' moral stature. As such, it was one of the most vibrant, important, counterintuitive, challenging set of ideas that emerged from the legal academy over the course of the last quarter of the twentieth century. (11) It deserves recognition as a signature accomplishment. The rights critique has also virtually disappeared from contemporary legal scholarship and pedagogy. We do not hear much, if anything, of rights' wrongs anymore--of their subordinating, legitimating, and alienating effects. The beginning of this silence can be traced to approximately 1990, when both founders and their critics started widely proclaiming the death of the CLS movement. (12) The rights critics have been particularly mute, however, during the age of Obama, from 2008 to the present. (13) This muteness, I believe, is strange. The three-pronged rights critique articulated by the rights critics--that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetuate greater injustices than they address, and socially alienate us from community--is, if anything, much easier to defend and explain today than it was then, in liberal rights' heyday. Then, to so many people, constitutional rights, welfare rights, civil rights, positive rights, human rights, the very idea of rights--rights per se (14)--were seemingly a vehicle for liberation from both oppression and imperialism. Then, the gains to be had from counter-majoritarian institutions, such as individual rights, constitutionalism, judicial review, and an independent judiciary friendly to the party of humanity and ready to enforce rights, were still so palpable, so fresh, so present. …