The most distinctive features of our American rights dialect are the very ones that are most conspicuously in tension
    with what we require in order to give a reasonably full and coherent account of what kind of society we are and
    what kind of polity we are trying to create: its penchant for absolute, extravagant formulations, its near-aphasia concerning
    responsibility, its excessive homage to individual independence and self-sufficiency, its habitual concentration on
    the individual and the state at the expense of the intermediate groups of civil society, and its unapologetic insularity,
    Not only does each of these traits make it difficult to give voice to common sense or moral intuitions, they also impede
    development of the sort of rational political discourse that is appropriate to the needs of a mature, complex, liberal,
    pluralistic republic.
        -Mary Ann Glendon, Rights Talk

Mary Ann Glendon may be one of the most influential women in America that you've never heard of before.  Not only is she a Harvard Law School professor and a leading lay voice in Catholic affairs, she's recently been named to the President's Bioethics Council.  Perhaps most importantly though, she is one of the most well respected theorists of the communitarian movement.  Communitarianism, for those who may be unfamiliar, is a political philosophy that essentially holds that government interference in social institutions has so disfigured them that it has done serious damage to civil society.  They hold this view in common with conservatives, but the Right then proposes that government be curtailed from this kind of behavior and that these institutions be reprivatized, remoralized and returned to their former status as a kind of third leg of a tripod, along with those spheres of the common life that are uniquely governmental, on the one hand, and therefore requiring of some limited intrusion on other social structures, or necessarily commercial on the other hand, and therefore requiring an unusual amount of unfettered freedom.  Communitarians, who tend as far as I can tell, to mostly be former liberals, tend to seek instead to use government (and, through government, to force business) to reinvigorate these social institutions.  Their position seems to be that government, though it has been enormously destructive in the past when it comes to civil society, can now be harnessed and turned into a constructive force.

Ms Glendon's book argues that one of the chief ways in which our sense of community has been annihilated is via the courts and their overbroad interpretation of rights, which has then carried over into our political discourse to create a kind of absolutist vision of rights.  This  tends to isolate us into utterly individualized "lone rights-bearers" with no corresponding responsibilities towards one another, towards the society around us, or toward the general polity.  It also cuts us free from moral standards, because the assertion of an absolute right will trump all other considerations.  This critique is entirely compatible with the conservative critique of the modern welfare state and of the usurpation of the Constitution by the courts.

However, Ms Glendon's solution to the problems she's outlined appears to be limited to jiggering with how the courts interpret laws and apply the Constitution.  To begin with, she attacks the elevated position that property ownership has traditionally received in our culture, going back to John Locke, and in our courts.  Although she acknowledges that property rights were seriously deteriorated over the course of the 20th Century, she seems especially troubled by the fact that societal concerns are not taken account on matters like plant closings :

    [I]t is noteworthy that the United States is practically alone among the industrialized nations in lacking broad-gauged
    legislative programs addressed to the noneconomic as well as economic effects of factory closings on families,
    communities, and workers.

She also quarrels with privacy rights, suggesting that Roe v. Wade is inferior to European abortion rights decisions, because it affords too absolute a right of abortion, and that Bowers v. Hardwick (the Court's anti-sodomy decision) is too restrictive because it refuses to recognize a protected right.  She opines that our courts need to look to European constitutions and court opinions as models for how we could take a more balanced approach to rights.  Apparently, this would mean vastly expanding the scope of human rights, but then limiting all of them whenever they bump up against societal concerns.

The most obvious problem with all of this is that it is antithetical to the very idea of a constitutional republic.  The American Constitution, for all its shortcomings, is nevertheless a written text, deliberated upon and agreed upon by the Founders and amended from time to time by the American people.  Although the courts have proven themselves overwilling to reinterpret that text and to impose their will over that of the legislature and the executive, it does still spell out the relatively few rights we consider it necessary to afford special protection from the reach of government and it assumes that most other issues can be adequately dealt with in the legislative arena.  Ms Glendon is correct that privacy rights decisions have been confusing, even morally repugnant, but that is mostly a function of the fact that they don't exist in the text.  We conservatives have long noted that the entire line of privacy cases is fundamentally illegitimate and they should be tossed out.  This would allow the various legislatures to hammer out precisely the kinds of compromises that Ms Glendon is talking about, and they would do so democratically.  Ms Glendon, on the other hand, not only apparently accepts privacy as a right, she also seems to be enamored of a provision in the German constitution that states :

    Everyone shall have the right to the free development of his personality in so far as he does not violate the rights of others
    or offend against the constitutional order or the moral code.

Just imagine letting the courts play around with that amorphous concept?  Our courts are already become too much of a superlegislature without giving them such vague and open-ended language to apply.  It may be the case (as it certainly appears to be from the authoritarian nature of the European Union) that repeated revolutions and a seemingly unending series of continent-wide wars have left Europe reluctant to settle any disputes, even domestic ones, democratically and that they prefer to have a tiny elite dictate to them.  But we're not Europe; we're better.

We have a constitution and a centuries old tradition of dealing, however imperfectly, with even the most divisive issues in the political realm.  The only time that process has ever broken down completely was in the Civil War, which was arguably made inevitable by judicial overreach (Dred Scott).  Other decisions, like Roe v. Wade, that have caused unusually heightened tensions in society, have generally been a result of the judiciary meddling in matters where they truly have no role.  It seems apparent that the courts should be reigned in and returned to the more limited powers they are given under the constitution and that the number of recognized "rights" should be returned to those enumerated in the Constitution.  Ms Glendon's faith that giving the judiciary even more power and an increased range of rights to play with would improve our civil discourse and give us a better system of rights is somewhat touching in its naiveté, but rather at odds with history and human nature.  It seems strange, but communitarians appear not to trust the very communities that they ostensibly are trying to restore, else why trust these kind of disputes to judges rather than to all of us?

I am admittedly a partisan where issues of political philosophy are concerned, but it seems to me that conservatism has the more coherent view as regards civil society.  The business world, in order to function efficiently and give us a dynamic and growing economy, must be capitalist and fairly free of restrictions.  It would be better for all of us if business people cultivated some ethos of social responsibility, and it is imperative that they play by the rules, but it is most important that they create wealth.  Government, if it is to defend us effectively, from one another and from other nations, must have certain powers.  But if it is not to rule us tyrannously, its powers must be limited.  We must rely on government to fulfill quintessentially non-private functions like defense and policing, but it is too inefficient to rely on for other functions.

Meanwhile, it is in the myriad aspects of our civil and social life--our families, our churches, our civic organizations, our clubs, our sports leagues, etc.--that we are codependent and mutually obligated and responsible to one another morally.  And, somewhat ironically, we've discovered that these human ties remain strongest when they are tested.  Society was more cohesive when we had to turn to each other for help than it is now that we rely on government.  And, thankfully, it turns out that social services are delivered more effectively by private community groups and families and churches than they are by government.   The presumably well-intentioned efforts to replace community services with a cradle-to-grave government services network has bankrupted government, given us inferior services, and killed off civil society.  Why try to tinker with an experiment that has failed so completely?  Why not go back to the future and return services to communities as a way to both improve those services and reknit the society?  Make those in need accept the responsibility of asking neighbors for help and return the moral duty of helping those in need to their neighbors, to all of us.

The great lesson of the New Deal, the Great Society and after is that community is vital, too vital to be made a plaything of government.   The communitarians are right that we need to repair the damage that has been done to our communities, but they are making a serious mistake in trying to use government and the courts as their tool.  The return to a society based on family, church and community will require the same bold spirit, in order to face the daunting prospect of cutting the cords that tie us to government, as the original big-government advocates had when they wantonly cut the cords that once bound us to each other.  The moment is arrived, let our courage not falter.  We can and must put government dependency behind us and learn to depend on each other again.

(Reviewed:29-Jan-02)

Grade: (C) Orrin C. Judd

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