By Jacob Weiner
The idea of individual rights has influenced documents from England’s Magna Carta of 1215 to our own Declaration of Independence, with its insistence upon “certain unalienable Rights.” Our contemporary political discourse is saturated with “rights rhetoric”: the practice of framing personal demands or interests or positions in the heavily loaded language of rights. President Obama’s administration has advocated a “right to control how personal data is used” and the Republican Party Platform champions the “rights of conscience of public employees.” Groups ranging from factory owners, who have asserted a right not to hire unionized workers, to the LGBT community, which has asserted a right to gay marriage, have all employed the tactic of depicting their interests in terms of rights.
Regardless, framing demands in the language of rights has far-reaching consequences. Most immediate of these consequences is the “devaluation of rights currency.” Invoking a right no longer makes reference to a universal, objective notion of the standards of human life, to the degree that agreement on such things is possible. As a result, the distinction between rights and privileges has all but vanished in contemporary politico-legal discourse.
Documents like the Universal Declaration of Human Rights cannot help but be weakened by the near-ubiquitous re-casting of interests as rights. Furthermore, rights inherently alienate individuals—and, in some cases, groups of individuals—from their greater community. Rights do this with the stated interest of providing the right-holding individual from hostile acts, either from their government or from other individuals. Take, for example, the countermajoritarian right—the right of minorities to be protected from the will of an opposing majority. An excellent example is the case of the Park51 project, the proposed Islamic community center to be built near “Ground Zero” in Manhattan. A CNN poll found that two out of three Americans opposed the building of the community center. In defense of the minority, however, Senator Orrin Hatch (R-UT) supported the project on the grounds of religious freedom. In the United States, we generally consider the countermajoritarian right to be an unequivocally good thing, offering protection from the rise of political factions.
As law scholar Christopher Edley argues, however, as long as this right “trumps the community’s democratic processes, those processes and the sense of community they would create are impaired.” In other words, the countermajoritarian right can slow the movement of the democratic process, as well as promote divisiveness in what might otherwise be a community unified by a sense of democratic consensus. Furthermore, individuals who assert this sort of right alienate themselves by “insisting on exemption from some collective purpose or judgement”. Individuals who assert countermajoritarian rights not only retard the democratic process, but also distance themselves from their political community.
There exists a question of whether groups can properly be said to have rights. This is a question for another time, but the consequences of rights rhetoric when employed by groups are fundamentally the same as when it is employed by individuals, albeit on a larger scale. Group rights can unify a group of individuals, providing them protection and benefits.
Consider the case of affirmative action, in which an asserted right to equal employment protects historically marginalized minorities. On the other hand, in a community of groups, rights can atomize groups in much the same way that they atomize individuals. This is evident in the tension between national sovereignty and human rights, given that we consider nations to be large groups of individuals.
On an international scale, the United Nations often insists upon standards of human rights from its member nations. The right to national sovereignty, however, conflicts with the capacity to interfere in another state’s internal affairs, effectively alienating member nations from accountability and collective judgement.
Many proponents of lower taxes and smaller government are fond of employing rights rhetoric as a way of distancing themselves from collective responsibility. These individuals and businesses insist upon a right not to have their income taxed and a right not to be excessively regulated. These demands are often framed within a right to “freedom,” in the particular sense of freedom as the capacity to do whatever one chooses at any given time. They make these arguments particularly when they perceive the beneficiaries of public policy to be underserving of the benefits they receive.
Take, for example, Governor Mitt Romney’s suggestion that 47 percent of Americans do not “take personal care and responsibility for their lives.” This sort of reasoning fails to take into account that membership in a community necessarily involves “loss shifting”—the movement of the burden of disadvantage away from disadvantaged individuals and onto the community as a whole. To demand a right not to participate in this loss shifting is to exclude oneself from the community, and thus from the collective benefits of public policy, like roads, defense and a legal system. The disadvantage that loss shifting seeks to address can take many forms, like poverty, old age and illness. Conservatives often insist that benefits ought to be provided only to those who are deserving of them, who are often defined as those who cannot help but be disadvantaged (like the elderly, for example). The problem with this argument is that it involves a fundamental misunderstanding of the workings of positive rights. Positive rights are rights to certain things: rights to food, welfare and housing, among others. Part of what makes the rights doctrine so powerful is that it denies the necessity of desert—people do not deserve their rights, they simply have them in consequence of being human. It would be absurd to argue that people deserve a right to free speech, just as it is absurd to suggest that people have a right not to starve only if they have demonstrated that they deserve not to starve. This conservative doctrine of extending benefits only to the deserving has far deeper implications than many realize, for it denies some of the most fundamental and universally accepted human rights.