I don’t believe in rights.
No, no, that’s not, mm, right. I don’t believe in natural rights, inalienable rights, rights granted by the Creator. . . you know Imma ’bout to tag-team this off to Bentham, don’t you?
Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.
Rights are, instead, rhetorical artifacts, crafted out of history and philosophy and given heft in political culture. They haven’t always existed; they may not always exist. But, for now, we act as if they do, and grant them such privileged status in our theories of liberty (another rhetorical artifact) that a claim of right serves to silence alternate claims of expedience and desire.
(Or, y’know, start a fight if one’s rights claim is countered with another. Then Mill is invoked: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people, i.e., my right to swing my arms ends at your nose. And when that doesn’t work, well, that’s another post.)
Where was I? Ah, yes: the durability and privileged status granted to rights.
Which brings me to Prop 8 and DOMA and Constitutional rights and democracy.
I’m not a Constitutional scholar, nor even a dedicated Court-watcher (more of a Court-peeper, actually), so I have nothing to say regarding the juridical strength and weaknesses of the petitioners arguments before the Court. I do find issues of Constitutional interpretation interesting, mainly because I find issues of interpretation interesting (and will blow a gasket at Scalia’s claims regarding originalism), but, today, I don’t have anything to say on what the justices may or ought to say about the Constituion vis-a-vis same-sex marriage.
This doesn’t mean I have nothing to say, of course. (D’oh!) Let’s talk politics! Yay! More specifically, let’s talk about the politics of rights-claims versus majoritarianism, and which is the better way to cement a political victory.
Ruth Bader Ginsberg has famously argued that Roe v. Wade was decided too broadly, that more and more states were moving to relax their abortion laws, and that by creating a federal right to abortion, the Court simultaneously energized the anti-abortion opposition and imperiled reproductive rights.
It is a plausible interpretation of events. I am not at all sure, however, that it is the correct one.
Which, roughly, brings us to the question: When ought claims be treated as preferences and run through majoritarian processes, and when ought they be treated as rights and granted (near) absolute status, safe from majority preferences?
I don’t know that there’s any good answer to this. On the one hand, I prize liberty, for which rights are a if not the crucial component, but I also prize representative democracy, in which majorities may legitimately impose their preferences on minorities. Turn everything into a right, and the collective may do nothing; disregard rights, and majorities become tyrannies.
It is demonstrably the case that majorities (or the fervent sub-majority among them) can get irritated when they are prevented from imposing their views on others, and, sometimes, may so strongly react against such prevention that the backlash may be worse than and last longer than would have the original situation.
So what’s a minority to do?
The Ginsberg approach argues in favor of the slog: get in and chip away, chip away, chip away, until the mountain pressing down upon you crumbles away. Once it’s gone, it’s damned well gone.
There’s a lot to recommend to this approach, and, on the whole, I favor it.
But that doesn’t mean one can’t or shouldn’t occasionally stick some dynamite into that mountain, yell FIRE IN THE HOLE! and blow that sucker to smithereens. Sometimes justice—oh, yeah, justice!—demands the weight removed in all due haste.
Sometimes justice says to hell with the backlash.
Justice, too, sits alongside and occasionally jostles rights and liberties in a democratic society. Minorities must have justice, but so, too, must majorities; is there any way to determine ahead of time who must carry the weight?
No, there isn’t. You go with what you’ve got, and if you lose in one arena, you try for the win in the other. If you think you’re right, if you believe your claim is a matter of liberty and justice for all, then you fight in every way possible.
And a right to marry? I honestly don’t know if there is a right to marry, for anyone. But it seems that if that right is granted to some, then—liberty and justice for all—it should be granted to all.
h/t for that fantastic Michael Bérubé link—go ahead, click on it!—to Scott Lemieux, LGM