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Précis: The Rights Revolution in the Twentieth Century

Published online by Cambridge University Press:  19 March 2012

Mark Tushnet
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Extract

The idea of rights has been central to U.S. political and constitutional discourse from the beginning. The Declaration of Independence appealed to “inalienable rights,” and the first amendments to the Constitution were universally described as a bill of rights. Yet, something distinctive appears to have happened to the idea of rights over the course of the twentieth century. By the end of the century, rights-claims were being asserted in locations, such as schools and prisons, where they had not been found at the century's beginning, and they were being asserted on behalf of claimants, such as fetuses and new arrivals to the United States, who were outside the domain of rights earlier. Even the content of rights-claims changed. Much of the Warren Court's work completed a constitutional agenda outlined, albeit unclearly, in the 1940s and early 1950s as part of the New Deal's constitutional vindication. The Warren Court added something new—an emphasis on personal autonomy—to the New Deal's concerns for fairness in the political process.

Type
Symposium on Mark Tushnet's The Rights Revolution in the Twentieth Century
Information
Israel Law Review , Volume 42 , Issue 3 , 2009 , pp. 446 - 463
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 My argument here is primarily historical, not normative. Specifically, I am not here interested in the relation between rights-claims and normative accounts of social or political justice. Some rights-claims that have succeeded in U.S. constitutional history may be—indeed, almost certainly are—inconsistent with one or another normative account of social or political justice, but I do not address that question here.

2 See Teles, Steven M., The Rise of the Conservative Legal Movement: The Battle for the Control of the Law ch. 2 (2008)CrossRefGoogle Scholar.

3 See Tushnet, Mark, Political Aspects of the Changing Meaning of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. Am. Hist. 884 (1987)CrossRefGoogle Scholar.

4 See Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993)CrossRefGoogle Scholar.

5 See, e.g., The Red Terror of Judicial Reform, The New Republic, Oct. 1, 1924, at 110Google Scholar (unsigned but written by Frankfurter).

6 For an overview of legal realism, see Rumble, Wilfrid E., American Legal Realism: Skepticism, Reform, and the Judicial Process (1968)Google Scholar.

7 Shapiro, Martin, Fathers and Sons: The Court, the Commentators, and the Search for Values, in The Burger Court: The Counterrevolution that Wasn't 218 (Blasi, Vince ed., 1983)Google Scholar.

8 304 U.S. 144 (1938).

9 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980)Google Scholar.

10 For a brief elaboration on this point, see Tushnet, Mark, Taking the Constitution Away from the Courts 157–60 (1999)Google Scholar.

11 See Ely, supra note 9, at 145–70.

12 On the relation between affirmative action and accommodation mandates, see Jolls, Christine, Accommodation Mandates, 53 Stan. L. Rev. 223 (2000)CrossRefGoogle Scholar.

13 For a survey essay on the “republican revival,” see Gerber, Scott, The Republican Revival in American Constitutional Theory, 47 Pol. Sci. Q. 985 (1994)Google Scholar.

14 See, e.g., Eastland, Terry, Counting By Race: Equality from the Founding Fathers to Bakke and Weber (1979)Google Scholar.

15 See Scalia, Antonin, The Disease as the Cure: “In Order to Get Beyond Racism We Must First Take Account of Race,” 1979 Wash. U.L.Q. 147 (1979)Google Scholar.

16 See O'Neill, Johnathan G., Originalism in American Law and Politics: A Constitutional History (2006)Google Scholar.

17 The modern origin of the Catholic interest in the common good is Rerum Novarum, Pope Leo XIII's encyclical on capital and labor.

18 Epp, Charles R., The Rights Revolution: Lawyers, Activists, and Supreme Court in Comparative Perspective (1998)Google Scholar.

19 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Board of Regenrs, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).

20 Brown v. Education, 347 U.S. 483 (1954).

21 Family and Medical Leave Act, 29 U.S.C. § 2601 (1993).

22 Dworkin, Ronald, Rights as Trumps, in Theories of Rights 153 (Waldron, Jeremy ed., 1984)Google Scholar.

23 Posner, Richard A., Law Pragmatism and Democracy 297–98 (2003)Google Scholar (noting the difficulty of balancing goals like protection of traditional rights and protection of the population from security risks); Posner, Richard A., Overcoming Law 214 (1995)Google Scholar (arguing that the aggregate impact of having too many rights can be detrimental to society); Posner, Richard A., The Problems of Jurisprudence 179–84 (1990)Google Scholar (using the example of coerced confessions to argue that it is impossible to apply abstract rights without evaluating the underlying purposes for those rights).