The Reconstruction of Rights

If there is a single theme upon which Americans agree, it is that ours is a regime rooted in rights. Rights are how we enter our political conversation: the chips with which we bargain, the collateral in the social contract. They are the ground of both rebellion and legitimacy, of our inclinations to anarchism and our proclivities towards community. Without coaching, any American will cry out:

"I know my rights!" or

"You got no right!" or

"What about my rights?" or

"Read him his rights!"

Corporations mimic individuals in their devotion to rights as barriers against the public regulation of private profit. The Philip Morris Company recently paid the National Archives $600,000 to associate itself with the Bill of Rights, presumably to promote its view of advertising as a First Amendment right essential to selling tobacco in an age of democratic public health advocacy. Rights are how Americans have always advanced their interests, whether as individual or corporate persons. Some might say (I will do so below) that there is even an element of obsession in the American devotion to rights, that we sometimes risk a rights absolutism as unbalanced in its political effects as the fabled "tyranny of the majority" against which rights are often deployed as the primary defense.

Yet there are good reasons for the focus on rights. The naked self comes to the bargaining table weak and puny; the language of rights clothes it. The naked self extends hardly beyond that bundle of desires and aversions that constitute its raw, pre-legitimate wants. Rights carve out a space for it to operate in -- call it autonomy or dignity or, in its material incarnation, property. Wants become needs and needs acquire a moral mantle that, as rights claims, cannot be ignored. The hungry man wants to eat; the ravenous man needs to eat; the starving man has a right to eat. Rights turn the facts of want into powerful claims -- powerful, at least, in civil societies that consider rights rhetoric legitimate.

Even the naked self is perforce a social self, whose claims on others imply reciprocity as well as equality. If, as this suggests, democracy is the form of governance especially suited to the language of rights, it is ironic and troubling to find the language of rights often deployed in a fashion adversarial to democracy. Perhaps this is because democracy is often understood as the rule of the majority, and rights are understood more and more as the private possessions of individuals and thus as necessarily antagonistic to majoritarian democracy. But, as I will suggest, this is to misunderstand both rights and democracy.

The Roots of Rights
America has always been a civil society hospitable to rights. It borrowed its earliest norms from diverse roots: from Puritanism, with its egalitarian version of the rights of a Christian; from the English Dissent tradition, which conceived of rights as a bastion against illegitimate monarchic authority; and from classical republicanism (James Harrington or Montesquieu, for example), where rights were linked to civic virtue and constitutional government. Even in colonial times, American institutions treated government as an artificial contrivance which had to be created; a collectivity to be sure but one instrumental to the religious and secular interests of individuals; one that saw government as originating in consensus and in a contract between all those who were to be citizens or subjects. The Mayflower Compact for example, though scarcely a document concerned with natural rights, saw the Pilgrims "covenant and combine" themselves "together into a civil body politick, for (their) better order and preservation."

But just how democratic was this society, hospitable as it was to rights, or how democratic could it become? The question offers one way of considering whether rights and democracy can cohabit or perhaps even reinforce one another.

On the face of things, and in keeping with the eighteenth-century view, the answer would seem to be not very democratic, at least not at the outset. In the great Founders' debate, both Federalists concerned with strong central government and the sovereignty of the whole over the parts, and Anti-Federalists concerned with the relative autonomy of the states and the sovereignty of the parts over the whole, shared one thing: they both understood the Constitution as a tool of rights. Federalists saw in its governmental powers the explicit political expression of rights; anti-Federalists saw in its provisions a set of rights limiting governmental power.

Historically, these standpoints were both complementary and in tension in just the same way as the social contract theories of Thomas Hobbes and John Locke were complementary and in tension. Hobbes sought to protect individual liberty and security through strong government; Locke wanted to protect liberty and property against strong government. In the Federalist case, there is a Hobbesian faith in strong contract-based government as a guarantor of rights; in the Anti-Federalist case, there is a Lockean distrust of strong government which understands rights as constraints on government. Both positions conceive of government as an artificial means whose primary object is the preservation of rights that are anterior to politics -- that exist in a "natural" or "higher" pre-political form.


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Returning to our question, then, the terms of the Federalist/Anti-Federalist debate would suggest that the American rights tradition in both its Federalist and Anti-Federalist forms had a primarily anti-democratic bias. For the Federalists, the issue was how to insulate the power in which rights were expressed and by which liberty and property were to be safeguarded from popular majorities and private opinion. Madison warned against "an infinity of little jealous clashing commonwealths, the wretched nurseries of unceasing discord" and essayed to design a constitution that would supply republican remedies to treat republican vices (among which democracy was paramount!). These included indirect election of representatives and an expanded compass for civil society; by multiplying the number of factions and groups, their capacity for divisiveness might be attenuated.

For the Anti-Federalists, the aim was to limit government tout court. Despite the democratic spirit of the strategy favored by Jefferson calling for the devolution of power, the object remained to check and limit central power as the exercise of a unitary popular sovereignty. Here the Bill of Rights figured as a studied obstacle to centrally organized popular power. Locke had worried about how "polecats and foxes" (ordinary men, quarrelsome and contentious) might protect themselves from the sovereign lion brought in to police their disputes. The Federalists wanted to keep the "people" from riding the lion, believing that only the best men could subdue its power and divert it to their virtuous ends; the Anti-Federalists were less concerned with the rider, hoping rather to imprison the lion itself in a cage of rights. Neither had much trust in the people from whom popular government took its legitimacy. Hamilton is said to have expressly calumnized the people as a great beast, "howling masses" not fit to govern.

Thus, it is hardly a surprise that the Founders managed to create a form of government in many ways antipathetical to any real institutional expression of the popular sovereignty that was its paper premise. Moreover, they wrote a constitution whose letter was self-consciously distrustful of democracy. Popular sovereignty could not for them mean popular rule. The abstract status of sovereign permitted "we the people" to establish a government, but did not license it to participate in the government it had brought forth.

The word "equality" failed to make an appearance in the Constitution's language, and almost every device of government contemplated was aimed not at embodying but at checking popular power. The real democrats (Sam Adams, Patrick Henry, Tom Paine, Jefferson himself) were not present at the Philadelphia Creation, and radical democratic models calling for a unicameral legislature and universal white male suffrage of the kind represented by the Pennsylvania Constitution were given short shrift.

Jefferson had written of the Virginia Constitution: Try by this as a tally every provision of our constitution and see if it hangs directly on the will of the people." By this measure, the federal Constitution failed -- and thus, for the suspicious Founders, succeeded. As Patrick Henry had dryly remarked, as far as he could see the people gave them [the Founders] no power to use their names. Such incipient tendencies to popular government as "democrats, mobocrats and all the other rats," as the slogan had it, might have insinuated into the Constitution were unlikely to survive that document's institutional arrangements. These included the separation of powers with its immobilizing checks and balances, federalism as a forced vertical separation of powers enhanced by the Tenth Amendment, the indirect election of senators and the President which interposed a filter between the people and their servants, judicial review as a check on popular legislation (and in time a warrant for judicial legislation), and the division of popular will into two parts equal and opposed -- one represented by the House of Representatives, the other by the presidency.

The two expressly democratic instruments -- the House of Representatives and the Amendment Article -- were hedged in with restrictions. Limitations on suffrage (standards were a matter for the states to decide at their own discretion within the loose confines of republicanism) left it, in Henry Lee's scathing indictment, "a mere shred or rag of representation." The powers to amend the Constitution detailed in Article V were popular sovereignty's most potent constitutional instrument. But they were made sufficiently complicated and unwieldy to turn the amendment provision into a last and improbable recourse of what would have to be, if they really were going to use it, a wildly dissatisfied and endlessly energetic people. Sixteen amendments in 200 years (I count the Bill of Rights as part of the original Constitution) does not suggest a very democratic instrument or a very engaged popular sovereign.


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And yet the letter of the Constitution and the intentions of the Framers are only part of the story. America's spirit of democracy is older than the republic. Equality had its ardent advocates then as now, and even where it was contradicted by the Constitution's letter, the democratic spirit found its way into the tenor and the logic of the Constitution. This spirit arises not in opposition to rights but from the political context that gives rights meaning and force.

There is a simple but powerful relationship between rights and democracy: universal rights logically require equality. Rights, as political philosophers say, "entail" the equality of those who claim them; and democracy is the politics of equality. Without democracy, rights are empty words, dependent for their realization on the good will of despots. Rights in their own turn promote and promise emancipation, suffrage, and empowerment. Even Madison recognized that rights without supporting political institutions were so many "parchment barriers" to tyranny (one reason for his early opposition to a separate Bill of Rights). Late in his life (in 1821), like so many Americans who had once feared the people as a rabble, he had come to take a less harsh view of democracy. He would not perhaps have agreed with Louis Hartz that "the majority in America has forever been a puppy dog tethered to a lion's leash," but on the question of the enfranchising of the propertyless, he came to acknowledge, "Under every view of the subject, it seems indispensable that the Mass of Citizens should not be without a voice, in making the laws which they are to obey, in choosing the Magistrates, who are to administer them, and if the only alternative be between an equal and universal right of suffrage for each branch of the government and a containment of the entire right to a part of the citizens, it is better that those having the greater interest at stake namely that of property and persons both, should be deprived of half their share in government; then that those having the lesser interest, that of personal rights only, should be deprived of the whole."

Madison's use of the language of "an equal and universal right of suffrage" just thirty years after a Founding consecrated to limiting both popular suffrage and popular access to government seems startling, but rights language permitted no other evolution. If popular government and laws understood as self-prescribed limitations on private behavior are the real guarantors of liberty, if natural rights are secure only when political rights are guaranteed by popular government, then the right to suffrage turns out to be the keystone of all other rights -- a principle increasingly recognized in the real democratic politics of the early nineteenth century and one eventually written explicitly into the Constitution with the Thirteenth, Fourteenth and Fifteenth Amendments.


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I mean here to advance both a logical claim and a historical claim. I want to say rights can be shown theoretically to entail equality and democracy. And at the same time, I want to argue that the actual history of rights talk in America unfolds as an increasingly progressive and democratic story. Philosophically, rights claims are always and necessarily equality claims as well. To say I have a right is to posit that I am the equal of others and at the same time to recognize the equality of the persons to whom, on whom, against whom the claim is made. No master ever said to a slave: "Give me my rights!" for rights can be acknowledged only by equals. Likewise, the slave who proclaims "I have the right to be free" says in the same breath "I am your equal," and hence "you are my equal." In a certain sense, in speaking of equal rights one speaks redundantly: rights are equalizers. Individuals may use rights to insulate themselves from others, to wall in their privacy, but their rights claims depend entirely on the proposition that as claimants they are the equal of all others, that no one living in a free and democratic society is privileged because of who they happen to be by virtue of race, gender, religion, and so forth.

More than anything else, this is why a constitution rooted in rights cannot systematically exclude whole classes of persons from citizenship without becoming inherently incoherent and thus unstable. Even where it is anti-democratic in its institutional provisions, it will incline to democratization, tend over time towards greater inclusiveness. This is exactly what happened to the American polity in the course of the nineteenth century. That the Constitution included provisions implicitly recognizing slavery (the three-fifths compromise for example) was a shameful comment on the Founders and perhaps on their motives. Nonetheless, such provisions sat like undigested gruel on the Constitution's rights-lined stomach and were in time regurgitated. This resulted not simply from pressures brought to bear from the outside, but arose from the inherently universalizing character of all rights talk, which pushes against artificial boundaries of every kind and makes inequalities increasingly indigestible.

If rights imply citizenship and citizenship appears as a right -- the right to liberty, the right to self-legislation, the right to be included in a civic polity founded on "popular" (that-means-me!) sovereignty -- the idea of the citizen will always have an aggressive, liberating, even imperial character, pushing to extend its compass to the very periphery of the universal. In Rome, early modern Europe, and America, it has been expansive in its logic and liberating in its politics. Today as rights continue to press outward, reaching the very edge of our species boundary, we can even speak of "animal rights" or "fetal rights" and still seem to be extending rather than perverting what it means for beings to have rights.

Rights are also linked logically to democracy and equality as a consequence of their essentially social character. Rousseau had already observed in The Social Contract that though all justice comes from God, "if we knew how to receive it from on high, we would need neither government nor laws. There is without a doubt a universal justice emanating from reason alone; but to be acknowledged among us, this justice must be reciprocal. . . . there must be conventions and laws to combine rights with duties and to bring justice back to its object." In a classical nineteenth-century idealist argument, the English political philosopher T.H. Green elaborates Rousseau's argument by insisting "there can be no right without a consciousness of common interest on the part of members of a society. Without this there might be certain powers on the part of individuals, but no recognition of these powers... and without this recognition or claim to recognition there can be no right." Recognition entails the mutuality of a common language, common conventions, and common consciousness: in other words, civility. Citizens alone possess rights, for as Green said, rights "attach to the individual... only as a member of a society." Tocqueville is, of course, right to remind us that citizens united as a majority are still capable of abusing the rights of citizens taken one by one. But Green's rejoinder is that the tyranny of the majority may be more a reflection on the inadequacies of democratic processes than the absence of rights.

Democracy as the Realm of Rights
Now if rights entail equality and require a civic context of mutual recognition to be effective, the regime form most compatible with rights is neither decentralized, limited government on the model of the Anti-Federalists, nor screened and filtered representative government on the republican model of the Federalists, but quite simply democracy-- defined by universal suffrage and collective self-legislation. For democracy is the rule of equality. Limited government is indifferent to who rules so long as the rulers are constrained. Republican government elicits the consent and accountability but not the participation and judgment of the people, which is why Jefferson sometimes called representative government elective aristocracy. Rights do best, however, where those who claim them are one and the same with those upon whom the claims fall -- where sovereign and subject are united in one person: a citizen. Without citizenship and participation, rights can become a charade. Without responsibility, rights may not always be enforceable. Without empowerment, rights can seem like decorative fictions. A constitution is, after all, a piece of paper, and "parchment barriers" are never much use against lead and steel and chains and guns, although they can be a significant trip-wire against majority assaults on minorities, something the Founders obviously appreciated.

In what may be the world's most effusively rights-oriented constitution, a famous document not only guarantees citizens "freedom of speech," "freedom of the press," "freedom of assembly," and "freedom of street processions and demonstrations," but also offers judges who will be constitutionally "independent and subject only to the law," "separation of church from state," as well as the "right to education," "the right to work," "the right to rest and leisure," "the right to maintenance in old age and also in case of sickness or disability," and, as if these were not enough, equal rights to women "in all spheres of economic, government, cultural, political and other public activity," and finally, guaranteeing what comes before, universal elections in which all citizens have the right to vote, "irrespective of race or nationality, sex, religion, education, domicile, social origin, property status or past activities." This unprecedented fortress of human liberty is the Constitution (Fundamental Law) of the Soviet Union, a nation in which rights have been paper parapets from which no defense of liberties can be undertaken.

As Madison observed in questioning the value of a Bill of Rights detached from the Constitution, "Repeated violations of ... parchment barriers have been committed by overbearing majorities in every state.... Whenever there is an interest and power to do wrong, wrong will generally be done and not less readily by a powerful and interested party than by a powerful and interested prince.


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Philosophical argument finds persuasive historical expression in the American setting. Successful popular movements aimed at the emancipation of slaves, the enfranchisement of women, and the remediation of the condition of the native American Indian tribes, as well as the empowerment of the poor, the working class, and others cast aside by the American market, have all had in common a devotion to the language of rights. Indeed, the single most important strategic decision faced by those who felt left out of the American way of life has been whether to mobilize against or in the name of the American Founding, understood as the Declaration of Independence, the Constitution, and the Bill of Rights. Movements that have made war on the Constitution, holding that its rights promise no salvation to the powerless, have on the whole failed. Movements that have insisted that the Founding can and must make good on the promise implicit in its universalizing rights rhetoric have succeeded.

In their explicit mimicry of the Founders' language and the citation of great rights jurists like Blackstone, the bold women at Seneca Falls in 1846 captured the logic of "entailment" with their own militant rights claims. "We hold these truths to be self-evident," they asserted, "that all men and women are created equal." And although the radical abolitionists at times seemed to declare war on America itself, one of their most fiery leaders understood the entailments of the American tradition well enough. William Lloyd Garrison burned a copy of the Constitution in Framingham on July 4,1854, but he nevertheless declared in The Liberator, in his To the Public, and in impassioned speeches throughout the North, that he "assented to the 'self-evident truth' maintained in the American Declaration of Independence, 'that all men are created equal, and endowed by their Creator with certain inalienable rights -- among which are life, liberty and the pursuit of happiness.'" On this foundation, he concluded, he would "strenuously contend for the immediate enfranchisement of our slave population."

Some might say these radicals were trying to drive a wedge between the Declaration and the Constitution, but when John Brown went looking for legitimacy he found it in the Preamble to the Constitution as well as in the Declaration. When he offered the People of the United States a "Provisional Constitution," its preamble read: "Whereas slavery, throughout its entire existence in the United States, is none other than a most barbarous, unprovoked, and unjustifiable war of one portion of its citizens upon another portion. . . in utter disregard and violation of those eternal and self-evident truths set forth in our Declaration of Independence, therefore we, citizens of the United States, and the oppressed people (deprived of Rights by Justice Taney)... do ordain and establish for ourselves the following Provisional Constitution and ordinances, the better to protect our person, property, lives and liberties, and to govern our action."


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From this perspective, the Civil War and Reconstruction Amendments ending slavery and involuntary servitude and guaranteeing universal male suffrage, due process, and the equal protection of the laws to all citizens were not a reversal of America's constitutional history but the culminating event in the history of the Constitution's rights commitments as they manifested themselves in the practical politics and civic life of the nation. Justice Taney's decision in Dred Scott was, by the same token, the last gasp of those trying to stem the floodtide on which rights were sweeping through history. Taney's problem was how to construct rights whose thrust was ineluctably universalizing in narrow, self-limiting terms appropriate to his prejudices. He had to show that "we the people," synonymous with "citizens," could somehow be construed to exclude the Negro race. His decision tortuously avoids the entailments of the idea of citizenship and instead turns on the "historical fact" that Negroes "were at that time considered as a subordinate and inferior class of beings." Taney takes care to avoid a careful examination of what such crucial terms as "person," "citizen," and "right" might entail. For it was precisely against those entailments that he was rather desperately trying to construct an argument.

Even at the time of the Founding there had been powerful opposition to slavery as an embarrassment to the language of the Declaration and the Constitution's Preamble. John Adams and John Jay were vigorously eloquent in their opposition to it (although not at the Convention), and there were a number of statesmen who would sympathize with George Mason's refusal to sign the Constitution because its twenty-year extension of the slave trade was "disgraceful to mankind."

Madison had acknowledged "moral equality of blacks" and in Federalist No. 54 had allowed that Negroes did "partake" of qualities belonging to persons as well as to property and were thus protected in "life and limb, against the violence of all others." The slave, Madison said elsewhere, "is no less evidently regarded by the law as a member of the society, not as part of irrational creation; as a moral person, not as a mere article of property." It was not so much the moral argument but the logic of what it meant to be a person that is captured by Madison, and it was this logic that created the problems for the hapless Taney.

Are Rights Eroding Democracy?
In our century, the powerful alliance between rights and political emancipation, between the claim to be a person and the right to be a citizen, seems in danger of coming unstuck. Increasingly, rights have retreated into the private space won for them by their civic entailments, allowing us to forget that they are secured by and only have meaning for citizens. The communities rights once created are now too often pictured as the enemies of right and the political institutions by which we secure rights are made over into external and alien adversaries -- as if they had nothing to do with us. The sense of rights as a claim for political participation, and participation and civic responsibility as the foundation of rights, has yielded to peculiarly privatized notions of rights as indisputable possessions of individuals who acquire them by birth or membership in some special subgroup, and must do nothing to enforce them. Such rights exist and are efficacious as long as they are noisily promulgated.

There are multiple reasons for the new take on rights, many of which have little to do with the logic of rights itself and for which rights advocates cannot be blamed. The erosion of viable notions of the public and of a common good and the growth of interest-group liberalism in which private factions and their rights come to count as the only political entities worthy of attention has undermined citizenship and the public rights associated with it. Under conditions of privatization, consumerism, radical individualism, and cultural separatism, rights cease to be regarded as a civic identity to be posited and won, and are instead conceived as a natural identity to be discovered, worn, and enjoyed.

As a consequence, young people are more likely to use rights to make a case about what government owes them than to point to what they themselves might owe to the democratic government that is the guarantor of their rights ("Ask not what your country can do for you ..."). Thus, for example, they may exclaim that the government has "no right" to conscript them into the army, as if it were not their government, as if there could be a democratic government in the absence of their willingness and responsibility to service it -- quite literally to constitute it. Many young persons in fact do engage in community service or enlist in the armed services or participate in demonstrations and protests, but as often as not these activities are either seen as "voluntary" (it is a "volunteer army") or as a manifestation of rights and prerogatives held against government and the polity. Civic duties and social responsibilities simply do not come into it.


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The changing climate of politics is evident in the vanishing of volunteer fire departments for want of volunteers, and in the growing ungovernability of municipalities that cannot afford liability insurance against disgruntled inhabitants who conceive themselves as dissatisfied clients rather than as responsible citizens. Fire protection comes to be viewed as a service provided by government to residents rather than a service by, for and of citizens. Where Our Town becomes Their Town, rights can become a knife that severs the bonds of citizens rather than the glue that holds it together. The right to sue is a precious resource against abusive authority; yet democratic responsibility is also a powerful guarantee against abuse. We need both. The litigious citizen expresses his rights as an individual but may be overlooking his responsibilities to the community being sued.

The precarious balance between individual and community which rights properly understood can mediate is upset, and rights are introduced on only one side of the scales, leaving the community hard pressed to advance the public good. Legal philosophers like to say that rights are trumps, which is a poignant way of underscoring the crucial subjugation of democratic government to the liberties of citizens. But there is also a sense in which, as Rousseau once wrote, citizens are trumps: "There can be no patriotism without liberty," Rousseau observes, "no liberty without virtue, no virtue without citizens; create citizens and you will have everything you need; without them you will have nothing but debased slaves from the rulers of the state on downwards."

Rights, after all, belong to individuals as citizens, and citizens belong to communities that therefore also have rights. There is no reason not to use the power of rights as legitimizers of claims in order to advance community goods. Tenants organizing against drug traffickers, victims organizing to secure their rights in a criminal justice system disposed (quite properly) to pay special attention to the rights of criminal defendants, and mothers organizing against drunk drivers (MADD) offer compelling examples of the power of rights-thinking on behalf of the community at large.

The American Civil Liberties Union has been an ardent and valuable advocate of the rights of individuals in our democracy. Yet the ACLU's conception of rights has occasionally veered towards a denial of community that may reflect the breakdown of our sense of common civic purposes as a nation. In recent years, in addition to its healthy concerns with the sanctity of political speech and the right of assembly (both of which are important to the polity and the public good), the ACLU has dug itself into a foxhole from which it can engage in a firefight with democracy. The ACLU has opposed airport security examinations, decried sobriety checkpoints (recently declared constitutional by the Supreme Court in a 6-3 decision), argued against the voluntary fingerprinting of children in areas subject to kidnapping. By making privacy over into a supertrump card in a deck of individual rights that, with respect both to public goods and community rights, is already trump to start with, it places at risk the balance between individual and community that is the prize achievement of the history of rights in America.

In the case of the Michigan Department of State Police v. Sitz, a leading argument held that sobriety checkpoints abridged the constitutional rights of Michigan motorists by causing them "fright and surprise" in the course of ninety-second stops that were tantamount to "subjective intrusion upon liberty interests." The liberty interests of other drivers as potential victims of drunken driving usually thought of as belonging to the rights of the community, or the responsibility of the body politic, were not weighed and found wanting; they were ignored. This is a growing problem in a society where the idea of civic community has lost its resonance and interest groups such as the National Rifle Association use rights as a foil for their special pleading.


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This unbalancing of the rights equation feeds into the historical mistrust some Americans still feel towards popular government. It threatens to disenfranchise the very citizenry rights were once deployed to empower. The new strategy links a Federalist distrust of popular rule with a form of judicial activism that permits courts not merely to enforce rights but to legislate in their name whenever the "people" are deemed sufficiently deluded or insufficiently energetic. It is not at all clear that rights enforced on an obstinate citizen body rendered passive-aggressive (quiescent but angry) by an encroaching court are really made more secure over the long haul. But it certainly is clear that a "democratic" government that will not permit its citizens to govern themselves when it comes to rights will soon be without either rights or democracy.

It was, of course, an original Federalist strategy aimed at curbing democracy that produced judicial review as a limit on popular legislation. In the Madisonian approach to the balance of power, the judiciary has remained a key instrument in preventing majorities from getting out of hand. Yet as Louis Hartz noticed, the majority has not really gotten out of hand very often in America. Tolerance notwithstanding, at least since Brown v. Board of Education (1954), impatient democrats seeking to secure rights that majorities sometimes neglected have allied themselves with courts willing to act as surrogate legislators where the people are found wanting. The "filtration" of the public mind favored by the Founders thus has found a modem incarnation in the not so democratic practices of judicial government.

In the recent Supreme Court case upholding a lower court decision concerning Kansas City (Missouri) school desegregation, the majority ruled in favor of a judicial intervention whose final outcome was the raising of taxes. The case is complicated, and the Missouri court did not itself directly levy taxes, but Justice Anthony Kennedy issued a sobering caution about the logic of the judiciary acting as legislative surrogate when he wrote in dissent: "It is not surprising that imposition of taxes by a [judicial] authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness and anger on the part of taxpaying citizens." Frustration, powerlessness, and anger have become the currency in which many Americans have paid for the usurping of their political authority in the name of their political rights. Americans need their rights, but they need also to understand the responsibilities their rights entail. If seen solely as private things to be secured by judges rather than public things (res publica) to be secured by citizens, rights atrophy.


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Democracies do not always do justice. Frequently they do injustice. Yet the remedy for this, as Jefferson noted a long time ago, is not to disempower citizens who have been indiscreet, but to inform their discretion, which may sometimes mean extending rather than circumscribing their power. For power teaches responsibility and responsibility limits power. Like experienced legislators, publics can and do become more discreet and competent over time. The ravages done by Proposition 13 (which initiated the tax revolt in 1978, limiting state expenditures) have gradually educated the people of California into an appreciation of their civic responsibilities. In the spring of 1990, quite on their own, and without the mandate of a court, they approved a referendum raising taxes. What America most needs just now are not more interventionist courts but more interventionist schools; not lessons in the rights of private persons but lessons in the responsibilities of public citizens; not a new view of the Bill of Rights, but a new view of the Constitution as the democratic source of all rights.

Madison might have had a better understanding of rights than the advocates of a separate Bill of Amendments when he argued for including rights in the substantive text of the constitution. For by placing them there, where they would be read in context rather than isolating them in a document that might make them seem a natural possession of passive private persons, their civic and social nature as part and parcel of the fabric of democratic republicanism might have been crystal clear.

On this two hundredth birthday of the Bill of Rights, we need to learn for ourselves what the first 75 years of American history, culminating in the Civil War, taught our ancestors in a still young America: that rights stand with, not against, democracy and if the two do not progress together, they do not progress at all.

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