How Present Conceptions of Human Rights Shape

the Protection of Rights in the United States

Daniel J. Elazar

Introduction

One of the most pronounced and prominent features of American civil society is the idea of individual rights as the basis for political organization, and the protection of those rights as perhaps the major task of government. This idea, which is uncritically accepted by conventional opinion, in itself represents only one conception of rights and must be understood as such. Moreover, even American conceptions of rights have changed since the Revolutionary question and the writing of the U. S. Constitution.

The conceptions discussed in this paper refer to the prevailing views among those who are deemed to reflect enlightened or prevailing opinion in a particular civil society. Their conceptions usually come to be embodied in the prevailing legal doctoring. It can be said that they reflect the public standards of the time. I used the term "enlightened opinion" to reflect the self-perception of the opinion-molders in the polity. In premodern times, enlightened opinion was usually concentrated in a distinctly separable elite, that could be identified as the ruling class. In more democratic modern and postmodern times, in many countries it is less easy to distinguish such a ruling class. Nevertheless, it is possible to identify those whose prevailing views which are considered to be enlightened within broad guidelines.

Looking back at the developments of contemporary conception of rights, it seems as if the transitions were clearcut and decisive. Philosophically it may have been, but on the political scene matters were more complex. Moreover, since the apogee of the natural rights doctrine, the idea of individual rights has undergone further changes, both in terms of the understanding of how "rights' protect the individual against all corporate entities, not only government or the state, and with regard to what constitutes rights. The changes that have taken place may have made late twentieth century American civil society as different in its conception of rights from the founding generation as the latter was from the late medieval expressions of obligations and liberties. That possible reality and the processes that have changed our understanding of individual rights are the subjects of our investigation.

The American Tradition of Rights

The American tradition of rights goes back to the first colonial foundings. From the beginning, those who came to American shores sought to protect their individuality and their liberties. One of the ways they chose to do so was to put those liberties in writing, embody them in constitutional documents, and proclaim them publicly. While they did not believe that governing bodies could be formally bound by those constitutional documents in specific ways, they did believe that their governors were bound to make every effort to preserve those liberties and that the people should select or reject them on the basis of their willingness and ability to protect those liberties.

During the colonial period what we today refer to as the protection of rights was principally the acknowledgement and protection of liberties, which in the United States goes back at least as far back as the Puritan settlement of New England in the 1630s. In 1641, the Massachusetts General Court adopted the "Body of Liberties" which defined what we would today refer to as the rights of the citizens and residents of the Commonwealth of Massachusetts. The issue was sharpened in the Glorious Revolution in England in 1688-89 and the Whig tradition that emerged from it. The English Bill of Rights of 1688 (old calendar - 1689 current calendar) was entitled "An Act for Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown." The Whigs, influenced by Locke, changed the terms of the debate from liberties to rights.

Here we encounter the roots of the struggle between federal and natural liberty. Elsewhere I have discussed these two forms of liberty as follows. Natural liberty is unrestricted, the freedom of the state of nature, whether understood in Hobbesian or Lockean terms. In the end it is the liberty that leads to anarchy, or the war of all against all. According to federal principles, proper liberty is federal liberty, that is, liberty to act according to the terms of the covenant (foedus) that calls the body politic into existence. Every proper polity is established by a pact among its constituents that is covenantal insofar as it rests upon a shared moral sensibility and understanding and is legitimate insofar as it embodies the fundamental principles of human liberty and equality. Behavior that does not fit within those terms is, in effect, a violation of the covenant and a manifestation of anarchy. Hence it can be stopped and its perpetrators punished by the appropriate institutions of government.

In sum, federal liberty is liberty established by agreement. The content of any particular agreement may and will vary. Thus John Winthrop could understand true liberty as that flowing from the covenant between God and man in which God dictated the terms of the agreement and man pledged to accept them. On the other hand, James Wilson for Pennsylvania, one of the authors of the Constitution of 1787, could understand federal liberty as a strictly secular expression of the compact establishing civil society. Today, when the Supreme Court of the United States holds the state and federal governments to standards of behavior based upon the United States Constitution, even when the implementation of those standards places heavy restrictions on individual behavior, in effect it does so on the grounds that the Constitution is a compact entered into by the people of the United States that, inter alia, delineates what constitutes federal liberty within the American system.

This discussion would not be complete if we did not recall that one of the basic tensions informing American civilization is the tension between natural and federal liberty. Admiration for the former has been expressed in various ways in American history, from the eighteenth-century ideal of the "noble savage" to the "natural man" of the nineteenth century, to "doin' what comes naturally" in the first half of the twentieth, to the "let it all hang out" of our times. Indeed, natural liberty was clearly dominant in the land from the mid-1960s through the 1970s.

Federal liberty found its first expression in the theopolitical stance of the Puritans and has retained favor among those applying religious standards and moral expectations to the America people and their polity--including the eighteenth-century revolutionaries, the antislavery forces of the antebellum years, the Populists and Progressives of the late nineteenth century, and those who fought the civil rights battles of the 1950s and 1960s. All of the foregoing believed that people were not naturally free to commit certain wrongs but as citizens or residents of the United States, living under its constitution, could be required to act or refrain from acting in ways that violated the terms of that constitution.

Federal liberty bridges between the premodern and modern conceptions of rights and recognizes the relationship between obligation and right. In its original form, it grew out of the premodern notion of obligations that make liberties possible. In its modern form it is an effort to balance rights and obligations. It has yet to acquire a postmodern form, although elements for defining a post modern form of federal liberty can be discerned in current debates on the subject. When abraham Lincoln declared in the Lincoln-Douglas debates that there is no right to do wrong, he was arguing from a position of federal liberty which seems to have been the basis of his position on the subject throughout his life. He may have been said to have added the dimension of prudence to the formula, that is to say, there are many things that should be prohibited or limited in terms of federal liberty, but prudence prevents government from undertaking to limit or prohibit.

The Whigs changed the terminology but not the means of enforcement. Indeed, as Donald Lutz has demonstrated, the first American state constitutions, written during the Revolution, adopted declarations of rights in the Whig style, that is to say, they used the term rights instead of liberties, but they were declarations of eternal principles rather than specifically binding constitutional law. At first the United Colonies, later the United States, followed the same pattern, beginning with the Declaration of Rights of the Stamp Act Congress in 1765. The Bill of Rights marked a new departure. No longer content with declarations of eternal principles, from the first it was considered to be binding constitutional law.

The original state bills or declarations of rights of the Revolutionary period reflected the hidden or open assumption that every individual was part of a community and as such was bound by certain communitarian obligations. Separately, the community was obligated to secure that individual's life, liberty, property, and the rights that flowed from them. They reflected the sense that natural law and rights meant a natural order. This is to say, not only did individuals have inalienable rights qua individuals, but nature itself required people to form civil societies properly through covenant or compact and to participate in communities of which they were an inalienable part. While it would be hard to say that these ideas were developed in a philosophically rigorous manner, they pervaded Whig thought and to that extent reflected the differences between Whig thought and the natural rights contractarian philosophers. Whatever sense of rights as including obligations that has survived in the United States has survived within the states. In the nineteenth century this view still had considerable power and was even recognized by the United States Supreme Court in the license cases which enabled the states to build up their police powers vis-a-vis the federal commerce power, primarily for the purpose of maintaining community and a common moral order.

By 1791, then, two great transitions had taken place with regard to rights in American history: the first substantive, from the late medieval conception of liberties to a modern conception of rights; and the second procedural,from the idea that rights can at best be protected through hortatory declarations to the idea that they can be protected through binding constitutional law.

Protecting Rights Through Proper Institutions

Part and parcel of the conception of the protection of rights in the writing of the U.S. Constitution was the principle embodied in the Constitution as originally written before the Bill of Rights was added, namely that the best way to protect rights was through proper institutions. While the Bill of Rights went beyond that principle and even changed the terms of the debate, from the adoption of the Constitution to the Civil War the view that individual rights were constitutional rights, to be protected through proper employment of proper institutions, dominated American rights thinking, whether in terms of Acts of Congress as reflected in the Judiciary Act of 1789, U.S. Supreme Court decisions, or in the efforts of the Southern states to use states' rights to preserve slavery and of the Northern states to interpose state law to nullify the application of the federal fugitive slave laws on the eve of the Civil War. In general this was a period when the idea of natural rights gave way in prevailing opinion to that of constitutional rights with the task of institutions to protect the latter. Only those who doubted that American institutions could do so, appealed beyond the Constitution to eternal rights, natural or divine.

In this respect, Hamilton and Madison's argument in The Federalist against a federal bill of rights had a life long beyond its rejection in the debate over the ratification of the 1787 constitution. Like most Federalist ideas, it was rapidly diffused among the states, especially, but not exclusively, the new ones. Ironically, from the Federalists' perspective, the states became The principal arena for the use of institutions to secure rights. Through legal and eleemosynary reforms, the law as an institution was reformulated to allow the free incorporation of private associations including private corporations and labor unions. This represented a radical change from common law and colonial practice where every significant association had to receive a special charter from the legislature (an extension of the granting of a liberty), all corporations were quasi-public as a result, and labor unions were considered combinations in restraint of liberty. Eleemosynary reforms, such as reforms in the care of the insane, the poor, and the aged, were also designed to secure rights in a positive way.

Legislatures did more for the protection of rights than courts, and these were mostly state legislatures. Reformers were active in their states to achieve these reforms through legislation and even before that to expand the franchise to give ordinary people access to lawmaking and legislation to protect the helpless when voting was not enough. Later this protection of rights was embodied in anti-monopoly legislation. Monopoly was defined not as total control of a market but as holding back resources from development. It was considered to be a violation of rights, as in the Charles River Bridge case, as attacked by both legislatures and courts, and was embodied in the anti-monopoly provisions of early American state constitutions which were the first expressions of substantive due process in the United States. Federal involvement was principally confined to certain regulatory matters affecting interstate commerce.

This period culminated in the adoption of the 13th, 14th and 15th Amendments which further clarified and concretized the constitutional basis of individual rights, what constituted individual rights within the body politic, and provided new means for the enforcement of those rights through the courts as well as legislatures.

Property as the Principal Right

It was then that private property was raised in status to become the principal institution for maintaining rights in the minds of many. In a sense this can be understood as the reification of property rights. "Property" should be understood as a bundle of powers and opportunities. The ability to own and control the use of property was always considered very important, at least as an auxiliary means or precaution, and was so recognized throughout the colonial and early national periods of American history. Here, too, there were two dimensions. Property rights were defined to be the most important of all constitutional rights and the protection of those rights was defined as the principal means of protecting all individual rights. In many respects this was a product of the needs of an advancing capitalist system, made possible by the elimination of slavery from the property rights argument. In other words, the Southerners had raised the property rights argument in defense of slavery prior to the Civil War but, because so many Northerners opposed slavery, unrestricted support of property rights was unpalatable for them. After the war period, they could look at property rights without that burden.

The other point of emphasis was that of due process. The subject of due process has a long history in the Anglo-American world, at least back to Chief Justice Coke. As developed in the late nineteenth century United States, it was based on the idea of "taking" -- the improper removal of the bundle of powers and opportunities that constituted property from some individual. Thus taxation, when duly enacted, could be considered constitutional, but if it was considered to be a "taking" it was subject to further tests. In those tests was some idea of productive use, although less than had been early nineteenth century doctrine.

Substantive due process continues to survive today, in relation to property, equal protection, and privacy. With regard to property, the older form of substantive due process, it survives particularly in the states. With regard to equal protection, the United States Supreme Court has applied substantive due process to the criminal law to establish nationwide standards. Substantive due process in the field of privacy is connected with the postmodern conception of rights. Privacy is one of the new triad. It falls foursquare within the framework of substantive due process. In other words, privacy in certain matters cannot be abridged no matter how nominally proper the procedures used to abridge it might be. This is certainly the argument of the pro-choice forces on the abortion issue.

Going hand in hand with the special status of property rights was the elevation of the right of contract to the same status. The U.S. Supreme Court invoked the Fourteenth Amendment to extend "right of contract" protection into whole new areas. In the years before World Wars I and II, in the first generation of the twentieth century, the post-Civil War redefinition of individual rights as property rights was challenged because of the social problems the application of that doctrine left in its wake for workers and farmers, for the urban middle classes and poor, and for blacks. To meet their needs a new sense of individual rights as civil rights began to develop, drawing on the Civil War amendments.

A leader in this change was the United States Supreme Court. It began to limit state interference with the civil rights of blacks under the terms of the Civil War amendments and government interference with what are now known as First Amendment freedoms. By the end of that generation, the principle of civil rights was well established in jurisprudence and in the public mind, with strong organizations promoting and lobbying for specific civil rights measures.

The Triumph of Civil Rights and the Shift to Human Rights

The idea of individual rights as civil rights triumphed in the 1950s and 1960s, reaching its apogee in the Congressional legislation of the latter decade and the court decisions positively interpreting that legislation which carried over into the early 1970s. At the same time, civil rights increasingly came to mean individual rights in the starkest sense, that is to say, the right of every individual to be free of all but the most minimum external constraints, certainly from all group constraints as distinct from governmental ones deemed absolutely necessary for the maintenance of law and order. Moreover, governments were forced to redefine and restrict their definition of what restraints were necessary to maintain law and order. Whereas in the colonial period the idea that the fabric of society had to be kept intact, even at the expense of individual liberties and rights, was all powerful, even in the national period from 1789 to the late 1940s, the maintenance of the social fabric was given equal billing with individual rights. After 1948 or thereabouts, maintaining the social fabric became distinctly secondary if not incidental in the face of individual rights challenges. As the idea of civil rights was winning its greatest victories, conceptually it was being replaced by a new idea gaining currency in the world, that of human rights.

The idea of human rights also had two dimensions. One was the elimination of external restraints on individual behavior to the maximum possible extent, and second, to obligate the state, government, and public institutions to provide for the individual welfare to the maximum possible extent. In a sense this brought matters full circle. The idea of human rights was, in a way, a return to the idea of natural rights but without "nature" or "nature's God." Moreover, "human rights" became the measure of the constitutionality serving as the measure of rights. The question of rights was settled in favor of the individual human being without regard to race, gender, ideology, creed, and, increasingly, sexual orientation. On the other hand, the idea of obligations and liberties was revived but applied to government and these public institutions which were defined as existing by virtue of their obligations to the individual and were occasionally granted liberties to protect themselves and society. In other words, institutions had no rights. They were obligated to serve the individuals who constituted them or who came under their protection through some version of the individual rights doctrine. Few rights flowed from those obligations, just as few obligations flowed from the rights of individuals involved. That is where matters stand today.

The Post-Modern Conception of Rights

The United States was born into the modern conception of rights. While the very first British colonists in North America did bring something of the premodern conception, their view was rapidly replaced or transformed by the modern conception which, in one variant or another, dominated the United States until our times. Americans over 50 represent the last generation to be raised in the modern conception of rights. All those below 50 have already been raised in the postmodern conception. Hence we are at a turning point.

The postmodern conception of rights can be defined as including liberties and entitlements. People, simply by virtue of being living persons, are at liberty to do what they will, provided that what they do does not seriously infringe upon the rights of others to do the same. I emphasize "seriously." To take a relatively simple issue, divorce, which was once no more than tolerated out of necessity, if that, has now become a right. Everyone is now free to divorce as easily as is possible. Yet it cannot be said that divorce does not infringe upon the rights of others. The rights of children to be raised in a family environment are clearly damaged by divorce, but this is not deemed to be a serious enough infringement to limit the right of divorce.

The second dimension is that of entitlements. While individuals are free to do most anything, the civil society, usually in its institutions of government, is expected to guarantee individuals their basic needs and more, which have in essence become entitlements. The so-called "new rights," including the right to employment and to certain social benefits, are of this nature.

Accompanying this shift is the loss of the general consensus that there is an Author of Nature. Even though belief in God is still the predominant popular belief in the world, reaching extraordinary proportions in certain countries like the United States, the new image of God is one of a benign crutch who makes almost no demands other than a demand that we love one another. Since this God is no longer seen as the bestower or definer of rights and obligations or even as the Author of Nature from whose moral order rights and obligations flow, matters are much more fluid and the new understanding of rights as liberties and entitlements is easily fostered.

One good example of this is the shift from freedom of speech to freedom of expression as a right. Freedom of speech was developed as a social norm to realize a free and just society. That is to say, it was concluded that in order for a free and just society to develop, individuals had to be free to express their opinions on public matters; ergo, freedom of speech became a norm. Freedom of expression, on the other hand, is an individual norm that has no social dimensions. It is simply assumed that every individual has a right to express him or herself in any way that he or she deems fit (not only through speech). There are no public purposes required or necessarily involved.

Operationally, there was an equally great contrast. Post-modern constitutional thought looks to the "guaranteeing" of rights through judicial fiat, almost without regard to other institutional arrangements and relationships, unlike modern constitutional thought which looks first to securing rights through institutions and only then to court intervention.

To further sharpen and clarify the contrast between modern and postmodern conceptions of rights, let me suggest that the principal modern rights -- life, liberty, property, and the pursuit of happiness -- were Aristotelian in nature, that is to say, they had some view of civil society as a comprehensive whole. The triad of postmodern rights -- welfare, expression, and privacy as liberties and entitlements -- are Epicurian in nature; they have to do with the individual, not with civil society. There is no social dimension necessarily involved here. Indeed, the isolated individual takes precedence over any social dimension that might be introduced.

Antecedents and Deviations

In a sense, every conception of human rights must rest on the notion of a common humanity. Even as the idea of human rights differs from individual rights in that human rights steps outside of the law, it emphasizes the common humanity of humans in doing so. The prevailing premodern conception was one of obligations and liberties, neither a covenental (Biblical) or organic (classical) order that existed in the nature (or way) of things. The modern conception began with individual natural rights with nature in the empirical rather than the normative sense the basis of universal order. Natural order in this sense includes obligations, but either does not link them with rights or gives rights precedence. The modern view was that natural rights were self=evident, but had to be discovered if they were to be transformed into political realities. Once discovered, they could then be extended by interpretation. In that system "Nature or nature's God" was present as the justification.

A distinction was made between human and other forms of life. One of the characteristics of postmodern conceptions of rights is that all life is held sacred, indeed, we are moving to the point where all life is held to be equally sacred -- the right to life of the snail darter is as important as the right to life of the starving Ethiopian child or, more directly, the unemployed Appalachian family.

The moderns discovered that natural law alone is not enough. Rights that are universal by natural law serve nobody since they are unenforceable. Therefore, they transformed the principles of natural right into positive law through covenants, compacts, constitutions, and consent to overcome the difficulties of agreement as to their sources. Some still sought a Divine source, others a source in nature with Divine sanction, and still others a source in a self-propelled nature.

Regardless of the differences of opinion as to source, it was possible in the real world to obtain agreement about what was desired in the way of rights. Through consent, these agreements were embodied in positive law. Hence, consent became the critical dimension in transforming natural rights into enforceable measures. In a sense, the minimum consent response for human survival was to the Hobbesian covenants of peace which Hobbes proposed almost precisely in that spirit as the rallying point around which all men could agree as necessary for their survival. It is important to note the relationship between rights and consent. Rights may be authoritative, but in practice they only have authority when accepted by the consent of the governed. Thus, consent is the bridge between abstract rights and concrete behavior of civil society.

Modern natural rights had three dimensions: rights as justice, rights as liberties, and rights as exceptions. The first had to do with social order as a whole, how it became a just order and how individuals received justice within it; the second had more to do with individuals and what they were free or not free to do in civil society; while the third represented civil society's release of individuals from obligations. The postmodern idea of rights was to add the idea of rights as entitlements as its contribution to all of this.

Contemporary theories of rights are results-oriented. They are justified by the way they justify the cases they like. In other words, the theories first pick the result that they want, then they find a theory that will justify those results. It is like shooting first and then drawing the target around the spot where the bullet hit. Among other things this has led to the revival of property rights in the form of entitlements, which represent a new property. The thrust of court cases in the United States and the European Community is to secure entitlements from arbitrary withdrawal, including such items as drivers licenses which had previously been considered to be a privilege and which are now considered increasingly to be entitlements.

The new doctrine of rights treats the moral autonomy of the individual as an absolute. Ronald Dworkin, a leading postmodern theorist of rights, puts it this way, that individual rights are trumps over the public good. This is the total reversal of the earlier understanding of rights as growing out of civil society has very little standing.

The matter is carried further in that the effort to find the moral truth or the correct moral theory is replaced by relativism. Whatever the moral beliefs of the people happen to be will determine what rights the people have. Under such circumstances, constitutionalism itself is challenged. Under the original theory, constitutions, while they could be interpreted often with great liberality and flexibility, still had a veto over actions that went beyond a certain point, i.e., were unconstitutional. That, indeed, was the whole purpose of a constitution. Under the relativistic conditions of the postmodern understanding of rights, the most that a constitution will have is a vote. This eliminates the whole purpose of constitutionalism and opens up unlimited possibilities for a relativistic system of rights and actions.

Individual and Group Rights

On the other side of the coin there is an emergent balancing of individual and group rights. This is a result of the resurgence of primordial groups in the postmodern world. The modern epoch was devoted almost single-mindedly to replacing primordial group ties with associational ties, or transforming the former into the latter; i.e., the cosmopolitans of society, those who formed the enlightened opinion that set its tone, by eliminating gemeinshaft deemed the primordial group to be hopelessly reactionary and primitive. Suddenly, in the postmodern world, primordial groups have reasserted themselves and many people, led by many intellectuals, apparently feeling alienated and cut loose as individuals, have sought the comfort of such links (as long as they are not too demanding, of course, and do not interfere with the triad of postmodern liberties and entitlements). Thus both the United Nations Declaration of Rights and the even more avant-garde European Declaration of Rights simultaneously emphasize the new individual rights of welfare, expression, and privacy, and then try to balance them with some provision for group rights as well. The world has yet to find enduring institutional forms for balancing individual and group rights. It is clear to many that this is one of the most important constitutional tasks of our time. Perhaps federalism, both in the sense of federal liberty and in its institutional forms, will offer us a grounding from which to develop such constitutional and institutional relationships. To date, it has shown some promise for doing so and limitations as well (viz. Yugoslavia).

The question is not only to recognize how modern liberal theories of rights have strengthened human freedom, particularly vis-a-vis the state but also vis-a-vis other humans, but how, in the process of extending these modern liberal ideas, their post-modern expressions have challenged the very assumption that civil society exists as an actor in its own right. One need not reify civil society any more than one should reify the state, one of the problems confronted by moderns in their development of rights doctrine. But at this time, individuals must be able to have a collective expression through civil society or else they will become isolated and alienated, the trust that maintains the sound social fabric will disappear and law and order will break down. The result is likely to be totalitarianism, a particularly virulent form of reified statism, that is likely to emerge in response to the human desire for order as well as freedom.

The modern experience should have taught us postmoderns that individual human beings need some form of community, either benign and liberating or, failing that, harsh and oppressive, but in any case, when the chips are down, people will prefer life in community to life in isolation and alienation. Community can only exist on the basis of mutual trust; without mutual trust laws are ineffective and social order breaks down. This lesson has been learned by anthropologists studying primitive societies, sociologists studying social pathology, and political scientists studying how different formal constitutions succeed or fail in different social environments. It has been a lesson notably unlearned by many rights extremists who believe that every alleged violation of someone's rights is malicious and should be treated formalistically as such by law.

It is no accident that the renewed interest in civil society is being spearheaded by the leaders of the revolt against Communist in Eastern Europe as part of the fight again their totalitarian communist past. We in the West would do well to learn from their experience to confront our own excesses in the other direction.