Are Rights Wrong?

Discussing “Tragic Rights: The Rights Critique in the Age of Obama” By Robin L. West.

There are some concepts that appear so fundamental to Americans, when confronted with the reality that those concepts are constructed at all — are, in fact, conceptual — Americans squint their eyes in skepticism.

Some may be grappling with a form of this phenomenon as they read about the CREW lawsuit challenging President Trump’s possible violations of the emoluments clause, and in doing so enter the magical world of Article III standing. The short story: people, even Presidents, can violate the constitution, and there is nothing you can do about it. Even though no one taught us about the requirements for legal redress in junior high civics (and, according to polling, not very much about the substance of the Constitution either), we assume that there must be some way of preventing a President from violating the Constitution, right?

Speaking of “right,” and very much in the vein of challenging fundamental assumptions, I recently was reintroduced to the fascinating world of the “Rights Critique” by rereading Robin L. West’s Tragic Rights: The Rights Critique in the Age of Obama.* The Rights Critique was, according to West, “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.” The nominal mission of this publication is “to complicate.” There are few things a lawyer might encounter that are as complicating as this.

The basic argument is that “rights” are not, in fact, good. It is a “three-pronged” critique: that legal rights further entrench hierarchies, “thus perpetuate greater injustices than they address,” and third, rights “socially alienate us from community.” In short, rights subordinate, legitimate, and alienate. A simplified background premise is that rights can, essentially, be weaponized. Their very conception creates scarcity in a field where none should exist.

There is a lot going on in this article. She dispatches in a sentence and one of many lengthy footnotes with the consensus that the Critical Legal Studies (CLS) movement (of which the Rights Critique was a part) fell apart when feminists and African Americans joined the movement.** She asserts that “Obama era” rights^ are more lethal, and makes the comparison between unfettered Second Amendment rights and the right to abortion in Roe as both being defensive rights — one protects you from intruders, the other from “the intrusion of an un-welcome fetus into a woman’s womb.” She makes the case that gay marriage is just a way of subordinating nontraditional couples, and it further legitimizes domestic violence to boot. It is a contentious article.

It is also pretty great. I love “behind the scenes” theories. (Maybe the problem is actually the idea of “rights,” maybe “whoever gets the most votes wins” is the worst way of voting, maybe the rise in violent crime in the 70s and subsequent decline can be attributed to lead in gasoline and the subsequent lead trading program in the Clean Air Act, and so forth). I also love showing how disparate things are actually related. This article has both in spades. In addition to detailing how the provision of legally actionable rights can backfire — the ultimate “behind the scenes” theory — West makes some fascinating (if shakily cited) connections about rights in the Obama era. For instance, she puts forth the idea of “exit rights” or “rights of withdrawal” and draws a line between our increasing conception of the state as weak and ineffective and our now cherished rights. Castle Rock (a case that held that we do not have a right to police enforcement of certain laws) leads to Heller (so we can own guns and do it ourselves). The “sub-minimal” state’s failure to provide education and healthcare leads to a right to homeschool children (not enshrined by SCOTUS, yet) and Obergefell (the state won’t take care of you, so you better find a spouse).

Furthermore, as somewhat of a connoisseur of hipster counter-narrative pessimism, this blows your hipster counter-narrative pessimism out of the water. Oh, you think Democrats are actually the more destructive political party because they just put a good face on the same imperialist policies? Well this lady thinks that the very conception of having human rights puts a good face on racism and bigotry and leads to more inequality and alienation.^^ For children raised to believe that the Civil Rights Act was basically the most important thing to happen in the 20th Century, this is an almost maniacal splash of cold water to the face.

Which leads to why I wanted to write about this article (aside from sharing with you all the extremely “complicating” vision of The Rights Critique). While I have my qualms with those who may reflexively or carelessly shout pessimistic counter-narratives any time any one is happy about anything (see this post on why do people hate “liberals” so much), I’m constantly worried about inadvertently being on the wrong side of history. Simply being on the wrong side of history, or just being wrong, is bad enough. But I find the possibility of doing so unintentionally to be much more terrifying. What if all the good you try to do is exactly what the bad people want you to do?

We should all think about that, but West’s work (and those who came before her) put this question squarely to lawyers. It something that those of us who haven’t completely destroyed the self-reflective part of our soul in favor of the justify-anything part cannot escape. Lawyers should be scared about unwittingly joining the dark side just because, hey, someone needs to regulate the Death Star (otherwise they’ll just blow up more Alderaans and do-you-really-want-that? Also they have a great benefit package). Due process provides you the right to challenge an arbitrary withdrawal of welfare benefits; it also allows Energy Partners to challenge the Army Corps assessment of the environmental impacts of the Dakota Pipeline. Public defenders work tirelessly on behalf of indigent clients; they may also facilitate mass incarceration.

My primary critique of The Right’s Critique (though not necessarily West’s article) is the lack of alternatives or the assumption-of-no-baseline. A common problem I have with environmental activism is the assumption that there is no baseline — that if we just stop X company, or X fuel source (i.e. X driver of pollution that is external to “us”) we can fix the problem, as if human beings have not been dealing with pollution since the Caveman pooped on the wrong side of the Cave. The Rights Critique presupposes a different way of conceiving of the Law that may not exist (or at least is above my head).`

But at the end of the day, for all the particular queasiness this article may induce, as well as the general head scratching, I think this kind of Critical Legal Study is important. The Law is confusing, and it’s very easy to latch onto fundamental concepts as fundamental truths, and thus as fundamental Good Things. This leaves you with heuristics that can be problematic: constitutional = good; states rights = good; rights = good. For lawyers, the coin of our realm is critical thinking and logical consistency, and we shouldn’t sacrifice it at the altar of convenience. If we can represent the rights of a murderer, we should be willing to consider whether rights are, in fact, wrong.


*53 Wm. & Mary L. Rev. 713

**That is most definitely a story in itself. In addition to the political irony that a movement aiming to wake people up about the realities of minority rights fell apart because of actual minorities adding to the conversation, there is an additional irony: Wright notes that the addition of feminists, African Americans, Marxists, Postmodernists, and more, and their “identification as groups led to internal tension within the CLS movement.” In other words, sub-groups identifying themselves as different from other sub-groups led to subordination and alienation, much as rights themselves do.

^Roughly, I think, 2006–2016. The article was published in 2012, so I think it’s safe to assume the “Obama era” would extend to at least 2016.

^^But see page 737. West, and the Rights Critique, does not really question the legitimacy of the idea of rights, so much as that the rights we value from the later half of the 20th century, and the Obama era rights, are counterproductive.

`See especially her discussion of Peter Gabel’s analogy of the bank teller (at 726). While compelling, it assumes that there is some Other Way, where humans could just work stuff out on a person-by-person basis. That may be true, but at that point we’ve moved beyond a “rights critique” and into a “basic idea of living together critique.”

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