THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND

Vol. 19 No. 2 (February, 2009) pp.136-138

THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, by Barry Alan Shain (ed). Charlottesville: University of Virginia Press, 2007. 352pp. Cloth $45.00. ISBN: 9780813926667.

Reviewed by Paul A. Passavant, Department of Political Science, Hobart and William Smith Colleges. Email: Passavant [at] hws.edu.

From the 1980s through the 2000s, scholars of political and legal theory, as well as those interested in Law and Society, have been preoccupied by debates over rights. Liberal theorists emphasize the value of legal rights, while communitarians emphasize the fragmenting or alienating aspects of rights claims. Critical legal studies argues that rights are inadequate to justice, while approaches more indebted to Michel Foucault or Jacques Derrida find that, in the context of a liberal legal order, the discourse of rights is open to political struggle and that the underprivileged might be able to frame their grievances within a discourse of rights in order to utilize a rhetoric in which their claims to justice could be comprehensible, and seem valid, if not compelling. Studies in the Law and Society field divide over whether legal rights demobilize social movements or whether they have the potential for facilitating social movements oriented towards greater social equality. More recently, Law and Society scholarship emphasizes that a language of rights can be just as useful to right wing social movements today as it was to more liberal social movements in the 1950s-1970s.

Many of these interventions, however, take for granted that the United States has always had a liberal or “Lockean” political or legal culture, and that this is a culture of individualism. American historians have troubled such assumptions by returning to the late colonial and founding period in American history to rediscover influences from the Scottish Enlightenment or civic republicanism. THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains essays, organized more or less historically, from scholars who have added to our understanding of rights in American history and American political thought in especially significant ways over the last thirty years. Its main strength is that it contains exemplary essays from those whose contributions have spanned multiple volumes. Here, in one place, the reader can find an essay that seems to capture a scholar’s most important findings over the course of a career – such as John Philip Reid’s contribution discussing the importance of the British Constitution and the rights of Englishmen to late colonial and early revolutionary struggles.

This collection includes scholars of the revolutionary or founding period who bring their great breadth and depth of knowledge regarding these eras to bear on a particularly specific aspect of rights. Through this focused inquiry, they unpack late 18th century America as a political culture unleashing the potential for future political and legal struggles over rights. Jack Rakove’s [*137] essay, for instance, describes the dilemma of declaring rights the framers faced since any declaration at that historical moment risked both later interpretive ambiguity and risked limiting, unintentionally, rights later generations might find necessary (Thomas Jefferson’s view was that half a loaf was better than none). Gordon Wood’s contribution shows that rights have existed within a variety of political or legal orders and have become reinscribed within new political settings. The medieval king had a right to govern, and the English had their feudal rights, but over the course of the 17th century, rights came to be understood as something to be held against the monarch while Parliamentary sovereignty was understood to be the protector of the people’s rights. The American experience grew out of a tradition of rights claims against a monarch, but after the experiment with state sovereignty under the Articles of Confederation, republicanism developed, in the American context, a recognition that legislatures and executives, though agents of the people, might also threaten the rights of the people as monarchs once had.

Many of the contributors to this volume explore the rhetorical flexibility of rights as a political or legal discourse. Rights cannot be easily controlled by elites and can enable the politicization of conditions from below. Daniel Rodgers’ chapter, for example, shows how, immediately after the Declaration of Independence, rights talk reflected a “breathtaking inventiveness” (p.263). Moving from the late 18th to the early 19th century, then, Rodgers demonstrates that workingmen’s associations in the 1820s and 1830s took up the abstract phrases of the Declaration of Independence to argue against economic inequality, while the antislavery movement, and the women’s rights convention at Seneca Falls in 1848, followed suit, invoking their notions of inalienable rights against slavery and forced domesticity. American history has been constituted by multiple rights revolutions.

While many of the debates over rights during the 1980s and 1990s referred to rights talk as inherently individualizing if not atomizing, the benefits of a more historical approach to American political thought or legal controversy, as exemplified by Rodgers’ and Rogers Smith’s essays, complicates the communitarian critique. To be sure, as Rodgers notes, “rights do not exist outside a situation of real or potential antagonism,” since “to talk of rights has been to specify tyrannies” (p.276). Yet, the discourse of rights is more complicated than that. To speak of rights is to speak of “common possessions,” the “rights of the people,” and collective or corporate rights such as the “right to assemble, organize, worship, vote and strike.” Because a discourse of rights can be mobilized by such a variety of different interests, rights can help forge coalitions, political relations, or become constitutive of a particular collectivity or political identity. Situated historically, the political significance of rights is more than a “simple vehicle for possessive individualism” (ibid.).

This volume might have been improved through an editorial introduction specifying more explicitly the terms of historical debates regarding the revolutionary and founding periods, if [*138] not their stakes. Or, an editorial introduction might have brought some of the essays into critical dialogue with each other more explicitly. For example, in light of Rodgers’ essay describing numerous and frequent mobilizations of the rights of the Declaration of Independence, does it make sense to argue, as Barry Shain does, that Stephen Douglas may have gotten the Declaration “right,” and Abraham Lincoln may have gotten the Declaration “wrong,” when the latter argued that the Declaration’s Preamble, stating that “all men are created equal,” should apply to slaves of African origin (pp.118-119)? While some of the later chapters (such as those by Leif Wenar and Stephen Macedo, and the essay by Smith) do begin to create a dialogue among some of the essays, more might have been done in this regard through an introduction addressed more specifically to this purpose.

Although THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, contains a number of essays devoted to questions of rights at the “founding,” “beyond” tends to get covered by essays devoted to a broad historical arc encompassing decades, if not hundreds of years. Perhaps, though, this just speaks to the need for additional volumes that might be addressed to the politics of rights in the 19th, 20th, and 21st centuries. In sum, students and faculty with interests in American political thought, legal history, the history of political ideas, and American political development will find value in this collection of essays devoted to the politics of rights in American history.

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