From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 85-87.

THE RIGHTS REVOLUTION: RIGHTS AND COMMUNITY IN MODERN AMERICA by Samuel Walker. New York: Oxford University Press, 1998. 222 pp. Cloth $27.50. ISBN 0-19-509025-X.

Reviewed by Charles Epp, Department of Public Administration, University of Kansas. Email: chuckepp@ukans.edu.

 

In 1952, a job listing for a position as film librarian at a midwestern American university included the following job requirements: "sex--female... church preference--Protestant... Race preference--white... Other specifications--Preferably single... if married, preferably no children; or children of school age."

The casual, commonplace assumption of that announcement--that classification, exclusion, and discrimination on the basis of race, sex, religion, marital and family status was perfectly acceptable and thus open to broadcast announcement--is now jarring. Samuel Walker’s excellent new book on the rights revolution is a passionate, clear, and concise defense of the civil rights and liberties that got us from there to here. His argument has two main elements. The first is that the rights revolution has contributed to progress in protecting individual dignity and democratic values in everyday life. The second is that the new rights (and judicial intervention to create, expand, and enforce them) have not, contrary to an increasingly common view, undermined "community". Walker’s response to the latter charge is, in my view, especially effective. The new rights, according to Walker, are not purely self-interested, and are not devoid of obligations to contribute to a common good; instead, they promote a revised definition of the common good, which emphasizes the value of diversity with communities, and new obligations, particularly to be tolerant of unpopular beliefs and ways of life. Although the book is written for a general audience, political scientists and historians may find it useful as well.

The book is divided into seven chapters, plus an introduction. The introduction and the first two chapters stake out the book’s thesis, arguing passionately that the new civil rights and liberties have not undermined community and shared values, replacing them with a fragmented, balkanized society that has inflated individual interests, "identity politics," and group loyalties, but instead have been aimed at replacing an exclusionary, intolerant, factionalized vision of community with an inclusionary, tolerant vision. Walker’s analysis is effective in showing that, prior to the rights revolution and current disputes over the politics of identity, there was no "golden age". Instead, as illustrated by the university job listing quoted above (taken from p. 40), ordinary life was shot through with an exclusionary, discriminatory politics of identity. The second chapter argues that the mainspring of the rights revolution has been a concern for inclusion, tolerance, and respect for individual dignity, and that individual rights on these matters have been necessary elements of any meaningful remedy against the intolerance and discrimination of the earlier era.

Chapters three, four, and five each examine several particular clusters of rights. Chapter three is centered around Michael Walzer’s observation that "the primary good we distribute to one another is membership in some human community" (quoted, p. 62); the chapter focuses, in particular, on rights against discrimination on the basis of race and religion. Chapter four examines freedom of expression, and treats the cluster of rights in that area as key elements of community membership. Thus, "to speak is to belong," and, "[c]onversely, to be denied the right to speak is to be excluded from the most elemental aspects of membership" (p. 89). Walker mounts a forceful argument that even the most extreme, passionate, and hateful forms of speech should be constitutionally protected because they are, essentially, political arguments about how to define the bounds of the political community. Chapter five examines the development of institutional reform litigation and judicial rulings aimed at improving the conditions of persons confined to prisons and mental institutions.

The final two chapters, six and seven, present a concluding analysis of the relationship between rights and community. Walker examines the varied meanings of the term "community," focusing in particular on the claims by some contemporary communitarian critics, among them Amitai Etzioni, Mary Ann Glendon, and Michael Sandel, that the rights revolution has eroded the bonds of community in American life. Walker argues that the definitions of community commonly used by the critics of rights are either deceptively vague and abstract or authoritarian in their implications. In making this argument, he pursues an essentially pragmatic approach that examines the implications of various communitarian arguments for actual policies in the areas of family health and welfare, order in the schools, popular participation in politics, hate speech, and crime control. In each area, Walker persuasively argues that the social problems identified by the communitarian critics are real, but are not the result of the rights revolution, and would not be solved were rights to be reined in. For instance, Walker shows that one of the principal results of the new constitutional rules limiting police discretion has been the professionalization of police agencies, and that police professionalism has resulted in a sharp decline in what formerly had been widespread, common, and accepted brutality, without diminishing the capacity of the police to apprehend those suspected of crimes. Similarly, in an especially effective analysis, Walker argues that communitarian critics (such as Glendon) are disingenuous in arguing that individual rights and their advocates are to blame for the limitations of this country’s social welfare policies, because the strongest supporters of strengthening those policies have included civil libertarians, while the policies’ strongest opponents have included the business community and conservative opponents of the rights revolution. For the communitarians to blame rights while ignoring the politically powerful opponents of social welfare policies represents, in Walker’s view, "a serious intellectual and political failure of nerve" (p. 168).

This book is, in my view, a very welcome contribution to the debate over civil rights and liberties. The book is clearly the work of a senior scholar: the breadth of perspective, the scope of treatment, and the clarity and conciseness of the discussion are impressive. On issue after issue, Walker cuts to the heart of recent debates and clarifies the policies at stake.

In evaluating the book, it is useful to be clear about what Walker’s main purpose is, as well as what it is not. Walker has not attempted to provide a general normative theory of individual rights and their proper limits; instead, the book is an attempt to clarify the meaning and effects of the civil rights and liberties that have, in fact, been created and expanded in the last half-century, and to defend those particular rights against their critics (pp. xi-xii). As a consequence, there is little explicit discussion of the theoretical foundations for civil rights and liberties. This may disappoint some readers, particularly at those points in the book where Walker responds to theoretically-based criticisms of particular rights. For instance, Walker criticizes Cass Sunstein’s argument that individual rights should be based on (and therefore limited to) the extent to which they enhance democratic self-government (p. 146). Although Walker argues throughout the book that this approach endangers a distinct and separate value, that of the liberty and dignity of the individual, much of the rhetorical force of his argument is based on his claim that individual rights have enriched the democratic process. Which, then, has priority — individual liberty or the democratic process? Walker’s implicit answer seems to be that the new civil liberties and rights, in practice, embody both values, and that any priority given to one or the other of these values by an abstract theory is likely to produce unfortunate consequences in practice. A more explicit discussion of these matters may have strengthened the book without greatly adding to its length.

The book’s strongest contribution is to clarify the implications of key civil rights and liberties for the policies, practices, and internal cultures of public and private organizations. After spending many years researching police policies and practices, and criminal justice policy more generally, Walker has a keen eye for how law affects organizations, the policy process, and culture.

Thus he uses many examples and illustrations to demonstrate the "subtle but nonetheless profound changes in everyday life" (p. 32) brought about by the rights revolution. Walker argues, I think persuasively, that a key effect (or element) of the rights revolution has been the proliferation of rules and systematic procedures regarding discrimination, due process, and individual expression that have infiltrated most of our public and private institutions. These rules and procedures shape peoples’ assumptions, preferences, and choices, thereby placing constraints on certain kinds of behavior and encouraging others.

Walker is surely correct that public bureaucracies and popular culture have been profoundly affected by the rights revolution. But there remain gaps in implementation, among them the persistence of police brutality, discrimination in employment and housing, and other problems. The book might have been even stronger had Walker acknowledged these gaps and provided at least a general analysis of why and how rights seem to have broad and significant influence in some institutional settings and not others.

Overall, I am very enthusiastic about this book. Walker has made a major contribution to the debate over the meaning and significance of the rights revolution, and has provided the first broadly-based defense of individual rights against their communitarian critics. In my view, Walker’s defense is highly successful. The book is comprehensive, yet concise, and sophisticated, yet accessible to students and general readers. I hope, and expect, that it will be widely read.

 

Copyright 1995