The Reconstruction of Rights

If there is a single theme upon which Americans agree, it is that ours is a regime rooted in rights. Rights are how we enter our political conversation: the chips with which we bargain, the collateral in the social contract. They are the ground of both rebellion and legitimacy, of our inclinations to anarchism and our proclivities towards community. Without coaching, any American will cry out:

"I know my rights!" or

"You got no right!" or

"What about my rights?" or

"Read him his rights!"

Corporations mimic individuals in their devotion to rights as barriers against the public regulation of private profit. The Philip Morris Company recently paid the National Archives $600,000 to associate itself with the Bill of Rights, presumably to promote its view of advertising as a First Amendment right essential to selling tobacco in an age of democratic public health advocacy. Rights are how Americans have always advanced their interests, whether as individual or corporate persons. Some might say (I will do so below) that there is even an element of obsession in the American devotion to rights, that we sometimes risk a rights absolutism as unbalanced in its political effects as the fabled "tyranny of the majority" against which rights are often deployed as the primary defense.

Yet there are good reasons for the focus on rights. The naked self comes to the bargaining table weak and puny; the language of rights clothes it. The naked self extends hardly beyond that bundle of desires and aversions that constitute its raw, pre-legitimate wants. Rights carve out a space for it to operate in -- call it autonomy or dignity or, in its material incarnation, property. Wants become needs and needs acquire a moral mantle that, as rights claims, cannot be ignored. The hungry man wants to eat; the ravenous man needs to eat; the starving man has a right to eat. Rights turn the facts of want into powerful claims -- powerful, at least, in civil societies that consider rights rhetoric legitimate.

Even the naked self is perforce a social self, whose claims on others imply reciprocity as well as equality. If, as this suggests, democracy is the form of governance especially suited to the language of rights, it is ironic and troubling to find the language of rights often deployed in a fashion adversarial to democracy. Perhaps this is because democracy is often understood as the rule of the majority, and rights are understood more and more as the private possessions of individuals and thus as necessarily antagonistic to majoritarian democracy. But, as I will suggest, this is to misunderstand both rights and democracy.

The Roots of Rights
America has always been a civil society hospitable to rights. It borrowed its earliest norms from diverse roots: from Puritanism, with its egalitarian version of the rights of a Christian; from the English Dissent tradition, which conceived of rights as a bastion against illegitimate monarchic authority; and from classical republicanism (James Harrington or Montesquieu, for example), where rights were linked to civic virtue and constitutional government. Even in colonial times, American institutions treated government as an artificial contrivance which had to be created; a collectivity to be sure but one instrumental to the religious and secular interests of individuals; one that saw government as originating in consensus and in a contract between all those who were to be citizens or subjects. The Mayflower Compact for example, though scarcely a document concerned with natural rights, saw the Pilgrims "covenant and combine" themselves "together into a civil body politick, for (their) better order and preservation."

But just how democratic was this society, hospitable as it was to rights, or how democratic could it become? The question offers one way of considering whether rights and democracy can cohabit or perhaps even reinforce one another.

On the face of things, and in keeping with the eighteenth-century view, the answer would seem to be not very democratic, at least not at the outset. In the great Founders' debate, both Federalists concerned with strong central government and the sovereignty of the whole over the parts, and Anti-Federalists concerned with the relative autonomy of the states and the sovereignty of the parts over the whole, shared one thing: they both understood the Constitution as a tool of rights. Federalists saw in its governmental powers the explicit political expression of rights; anti-Federalists saw in its provisions a set of rights limiting governmental power.

Historically, these standpoints were both complementary and in tension in just the same way as the social contract theories of Thomas Hobbes and John Locke were complementary and in tension. Hobbes sought to protect individual liberty and security through strong government; Locke wanted to protect liberty and property against strong government. In the Federalist case, there is a Hobbesian faith in strong contract-based government as a guarantor of rights; in the Anti-Federalist case, there is a Lockean distrust of strong government which understands rights as constraints on government. Both positions conceive of government as an artificial means whose primary object is the preservation of rights that are anterior to politics -- that exist in a "natural" or "higher" pre-political form.

* * *

Returning to our question, then, the terms of the Federalist/Anti-Federalist debate would suggest that the American rights tradition in both its Federalist and Anti-Federalist forms had a primarily anti-democratic bias. For the Federalists, the issue was how to insulate the power in which rights were expressed and by which liberty and property were to be safeguarded from popular majorities and private opinion. Madison warned against "an infinity of little jealous clashing commonwealths, the wretched nurseries of unceasing discord" and essayed to design a constitution that would supply republican remedies to treat republican vices (among which democracy was paramount!). These included indirect election of representatives and an expanded compass for civil society; by multiplying the number of factions and groups, their capacity for divisiveness might be attenuated.

For the Anti-Federalists, the aim was to limit government tout court. Despite the democratic spirit of the strategy favored by Jefferson calling for the devolution of power, the object remained to check and limit central power as the exercise of a unitary popular sovereignty. Here the Bill of Rights figured as a studied obstacle to centrally organized popular power. Locke had worried about how "polecats and foxes" (ordinary men, quarrelsome and contentious) might protect themselves from the sovereign lion brought in to police their disputes. The Federalists wanted to keep the "people" from riding the lion, believing that only the best men could subdue its power and divert it to their virtuous ends; the Anti-Federalists were less concerned with the rider, hoping rather to imprison the lion itself in a cage of rights. Neither had much trust in the people from whom popular government took its legitimacy. Hamilton is said to have expressly calumnized the people as a great beast, "howling masses" not fit to govern.

Thus, it is hardly a surprise that the Founders managed to create a form of government in many ways antipathetical to any real institutional expression of the popular sovereignty that was its paper premise. Moreover, they wrote a constitution whose letter was self-consciously distrustful of democracy. Popular sovereignty could not for them mean popular rule. The abstract status of sovereign permitted "we the people" to establish a government, but did not license it to participate in the government it had brought forth.

The word "equality" failed to make an appearance in the Constitution's language, and almost every device of government contemplated was aimed not at embodying but at checking popular power. The real democrats (Sam Adams, Patrick Henry, Tom Paine, Jefferson himself) were not present at the Philadelphia Creation, and radical democratic models calling for a unicameral legislature and universal white male suffrage of the kind represented by the Pennsylvania Constitution were given short shrift.

Jefferson had written of the Virginia Constitution:


Is this the complete essay or is it missing a piece at the end?

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