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5— Rights and Reason

1. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), x-xii. [BACK]

2. See, for example, Roberto Unger, Knowledge and Politics (New York: Free Press, 1975); Duncan Kennedy, "The Structure of Blackstone's Commentaries," Buffalo Law Review 28 (1979): 205-382. See also a special issue of the Texas Law Review , "Symposium: A Critique of Rights," Texas Law Review 62 (1984): 1363-1617, especially Mark Tushnet, "An Essay on Rights," 1363-1403, and Allan C. Hutchinson and Patrick J. Monahan, "The 'Rights' Stuff: Roberto Unger and Beyond,'' 1477-1539. [BACK]

3. The prime example here is J. G. A. Pocock. See, for example, his "Virtues, Rights, and Manners: A Model for Historians of Political Thought," Political Theory 9 (1981): 353-368; reprinted in Pocock, Virtue, Commerce, and History (New York: Cambridge University Press, 1985), 37-50. Pocock's advocacy of classical republicanism is, of course, more fully articulated in The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975). [BACK]

4. Glendon herself is a communitarian. See also Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981); Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). [BACK]

5. Glendon, Rights Talk , passim, quotation from xii. [BACK]

6. Ibid., 9. [BACK]

7. I might mention, in this context, that Lani Guinier's advocacy of "cumulative voting" represents one of the most imaginative efforts to circumvent this "winner takes all" philosophy. [BACK]

8. Ronald Dworkin, "Justice and Rights," in his Taking Rights Seriously (Cambridge: Harvard University Press, 1977), 177. [BACK]

9. Ibid., 176, italics in original; Dworkin, "Taking Rights Seriously," in his Taking Rights Seriously , 199. [BACK]

10. Joel Feinberg, "Nature and Value of Rights," Journal of Value Inquiry 4 (1970): 243-257; reprinted in his Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 151. [BACK]

11. Thomas Hobbes, De Homine , in Man and Citizen , ed. Bernard Gert (Indianapolis: Hackett, 1991), 47, italics in original. [BACK]

12. Ian Shapiro, The Evolution of Rights in Liberal Theory (New York: Cambridge University Press, 1986), 48, 47. [BACK]

13. It is worth pointing out that A Letter Concerning Toleration, An Essay Concerning Human Understanding , and the Two Treatises of Government were all published in the space of two years: the Letter in 1689, the Essay and the Two Treatises in 1690. James Tully has been especially persuasive in challenging peter Laslett's view that the Essay is irrelevant to the Two Treatises . See Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge: Cambridge University Press, 1980). [BACK]

14. As John Dunn long ago pointed out, the starting point for Locke is the "necessary autonomy of individual religious judgment," and the "transposition of this theme from theology and epistemology to sociology and politics made each individual man the final judge" of "the society in which he lived." See Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969), 39. [BACK]

15. John Locke, An Essay Concerning Human Understanding , ed. Peter H. Nidditch (Oxford: Clarendon Press, 1979), II.xxi.47 (263-264). [BACK]

16. Ibid., II.xxi.48 (264). [BACK]

17. John Locke, A Letter Concerning Toleration , ed. James H. Tully (Indianapolis: Hackett, 1983), 26, 27, 28, 31. [BACK]

18. The relative priority of rights or duties in Locke is a much debated matter, one that I do not wish to take up here. For a full discussion, see A. John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992). [BACK]

19. John Locke, Second Treatise of Government , ed. Thomas Peardon (Indianapolis: Bobbs-Merrill, 1952), 55. [BACK]

20. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), especially 22-33, 310-315. The commentaries on Rawls are staggering in number. Ronald Dworkin, in particular, has emphasized the importance of rights to Rawls. See Dworkin, "Justice and Rights," 150-183. Also relevant here are Reading Rawls: Critical Studies of "A Theory of Justice," ed. Norman Daniels (New York: 1974); Robert Paul Wolff, Understanding Rawls: A Reconstruction and Critique of "A Theory of Justice" (Princeton: Princeton University Press, 1977); James Fishkin, Tyranny and Legitimacy (Baltimore: Johns Hopkins University Press, 1979); Sandel, Liberalism and the Limits of Justice ; Rex Martin, Rawls and Rights (Lawrence: University of Kansas Press, 1985); George Sher, Desert (Princeton: Princeton University Press, 1987). For my own sustained discussion of Rawls, see chapter 3 of this book. [BACK]

21. This is the opening statement in Robert Nozick's Anarchy, State, and Utopia (New York: Basic Books, 1974). The commentaries on Nozick are likewise voluminous. In fact, most of the aforementioned discussions of Rawls discuss Nozick as well. In addition, see Reading Nozick: Essays on "Anarchy, State, and Utopia," ed. Jeffrey Paul (Oxford: Basil Blackwell, 1982). [BACK]

22. MacIntyre, After Virtue , 69. But also see Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1979), which, in locating

the origins of natural rights in antiquity, somewhat qualifies MacIntyre's assertion. Also relevant here is Leo Strauss's spirited discussion of "classic natural rights" in Natural Rights and History (Chicago: University of Chicago Press, 1953). [BACK]

23. Robert Filmer, Patriarcha and Other Political Works , ed. Peter Laslett (Oxford: Oxford University Press, 1949), 185-231, 241-251. [BACK]

24. Emile Durkheim, The Division of Labor in Society , trans. George Simpson (New York: Free Press, 1933), 116-117. [BACK]

25. Pocock, "Virtues, Rights, and Manners," 37, 43, 44. [BACK]

26. Unger, Knowledge and Politics , 7. [BACK]

27. I take this phrase from Lawrence Freidman. See Friedman, Total Justice (New York: Russell Sage, 1985). [BACK]

28. Patricia J. Williams, The Alchemy of Race and Rights (Cambridge: Harvard University Press, 1991), 153. See also an earlier essay by Williams, "Al-chemical Notes: Reconstructing Ideals from Deconstructed Rights," in A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution , ed. Jules Lobel (New York: Monthly Review Press, 1988), 56-70. [BACK]

29. Since my reading of The Awakening is at odds with most mainstream accounts, I want here simply to acknowledge my disagreement with three influential essays, all of which emphasize the "emancipatory" character of the novel: Elaine Showalter, "Tradition and Female Talent: The Awakening as a Solitary Book," in New Essays on "The Awakening," ed. Wendy Martin (New York: Cambridge University Press, 1988), 33-58; Sandra M. Gilbert, ''The Second Coming of Aphrodite: Kate Chopin's Fantasy of Desire," Kenyon Review 5 (Summer 1983): 42-66; Patricia Yaeger, "'A Language Which Nobody Understood': Emancipatory Strategies in The Awakening," Novel 20 (1987): 197-219. [BACK]

30. Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193. [BACK]

31. Kate Chopin, The Awakening (New York: Bantam, 1981), 1. All subsequent citations to this edition will appear in the text. [BACK]

32. These denials of rights persisted into the twentieth century. See How Louisiana Laws Discriminated against Women (Washington, D.C.: National Women's Party, 1922). [BACK]

33. Warren and Brandeis, "The Right to Privacy," 207, 193, 205, 204, 195, 205, 193. [BACK]

34. Ibid., 211. [BACK]

35. Privacy did not become a general unified right in tort law (as articulated by Warren and Brandeis); its crucial importance began only some thirty years later, when it migrated into constitutional law. [BACK]

36. Locke, Second Treatise of Government , 79. [BACK]

37. Ibid., 17. This image of Locke is, of course, the one that Macpherson wants to perpetuate. For discussions that qualify that image, see Tully, A Discourse on Property , 1-94; Alan Ryan, Property and Political Theory (Oxford: Basil Blackwell, 1984), 14-48; Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), 257-281. [BACK]

38. This "possessive" aspect of liberal theory is the central emphasis in C. B. Macpherson's The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962), a book that, not surprisingly, has generated (and continues to generate) a good deal of response, including Ian Shapiro's recent and persuasive objection that Macpherson's "anachronistic" market model fails to provide any historical understanding of the political writings of seventeenth-century England. See Shapiro, The Evolution of Rights in Liberal Theory , 69-79. [BACK]

39. Feinberg, "Nature and Value of Rights," 151. [BACK]

40. Ibid. [BACK]

41. Richard Flathman, The Practice of Rights (New York: Cambridge University Press, 1976), 71. [BACK]

42. Bentham writes, "It is by imposing obligations, or by abstaining from imposing them, that rights are established or granted. . . . All rights rest therefore upon the idea of obligation as their necessary foundation." See Works , ed. John Bowring (New York: Russell and Russell, 1962), 3:181. Wesley Newcomb Hohfeld, while classifying rights into four well-known categories—liberty rights, claim rights, power rights, and immunity rights—also argues that only claim rights can be discussed in a manner that is not "nebulous" and so commits himself to a positivist notion of rights that resembles Bentham's. See his influential Fundamental Legal Conceptions (New Haven: Yale University Press, 1919), 38-39. For the relation between Bentham and Hohfeld, see H. L. A. Hart, "Bentham on Legal Rights,'' in Oxford Essays in Jurisprudence , 2nd ser., ed. A. W. B. Simpson (Oxford: Oxford University Press, 1973), 171-201, and Joseph Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," Wisconsin Law Review 6 (1982): 975-1060. Many political theorists, I should also point out, have vigorously disagreed with the notion of "correlativity." For them, rights and duties are neither substantively nor even structurally symmetrical. See, for example, David Lyons, "The Correlativity of Rights and Duties," Nous 4 (1970): 45-55. [BACK]

43. Thomas Hobbes, Leviathan , ed. C. B. Macpherson (Harmondsworth: Penguin, 1968), 189-190. [BACK]

44. Warren and Brandeis, "The Right to Privacy," 213, italics mine. [BACK]

45. Alan R. White calls attention to this unidiomatic usage: see "Rights and Claims," in Law, Morality, and Rights , ed. M. A. Stewart, Royal Institute of Philosophy Conferences, vol. 79 (Dordrecht and Boston: Reidel, 1983), 154. One thinker who is clearly worried about this "against" aspect of rights is H. J. McCloskey, who has tried to theorize about rights simply as abstract entitlement, independent of actual (and potentially coercive) enforcement. See McCloskey, "Rights," Philosophical Quarterly 15 (1965): 115-127. [BACK]

46. Dworkin, "Taking Rights Seriously," 184. As already noted, Dworkin is an outspoken advocate of rights, so it is especially noteworthy that this statement is coming from him. [BACK]

47. Carl Wellman, "Upholding Legal Rights," Ethics 86 (1975): 52. [BACK]

48. Glendon, Rights Talk , 18-46. [BACK]

49. H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review

64 (1955): 151-191, reprinted in Rights , ed. David Lyons (Belmont, Calif.: Wadsworth, 1979), 16. [BACK]

50. Laurence H. Tribe, "The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence," Harvard Law Review 99 (1985): 342. For a related argument, see also Tribe, "Foreword: Toward a Model of Roles in the Due Process of Life and Law," Harvard Law Review 87 (1973): 1-53, in which he links Roe v. Wade to Lochner . [BACK]

51. Catherine MacKinnon, "Privacy v. Equality: Beyond Roe v. Wade," in her Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987), 94, italics mine. [BACK]

52. Feinberg, "Nature and Value of Rights," 149. [BACK]

53. Hart, "Are There Any Natural Rights?" 19. [BACK]

54. Roberto Unger, Law in Modern Society (New York: Free Press, 1976), 85. See also Hendrik Hartog, "The Constitution of Aspiration and 'The Rights that Belong to Us All,'" Journal of American History 74 (1987): 1013-1034, esp. 1024-1028. [BACK]

55. Herbert Morris," Persons and Punishment, " The Monist 52 (1968): 499. [BACK]

56. Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973), 75. [BACK]

57. Martha Minow advocates an "interpretive" approach to rights, which, in effect, constitutes all rights as prima facie rights. See her "Interpreting Rights: An Essay for Robert Cover," Yale Law Journal 96 (1987): 1860-1915. In this context, see also her critique of ''Reason" as an abstract norm in Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990). For a "moderate historicist" position that not only argues that rights are conventional but defends them as such, see Thomas Haskell, "The Curious Persistence of Rights Talk in the 'Age of Interpretation,'" Journal of American History 74 (1987): 984-1012. For an advocacy of prima facie rights in an international context, see James W. Nickel, Making Sense of Human Rights (Berkeley: University of California Press, 1987). [BACK]

58. MacIntyre, After Virtue , 33. [BACK]

59. Ralph Waldo Emerson, "Self-Reliance," in Selections from Ralph Waldo Emerson , ed. Stephen E. Whicher (Boston: Houghton Mifflin, 1957), 150, italics in original. [BACK]

60. Ibid., 147. [BACK]

61. In his important study of evidence and narrative, Alexander Welsh emphasizes the rise of circumstantial evidence as the ground for drawing inferences. See his Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins University Press, 1992). Here, I emphasize subjective evidence as the ground for justifying claims. [BACK]

62. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977), 160-210. But see also A. W. B. Simpson, "The Horwitz Thesis and the History of Contracts," University of Chicago Law Review 46 (1979): 542-601, which challenges the sharp distinction Horwitz draws between the eighteenth and the nineteenth centuries. [BACK]

63. What I am describing here parallels the shift Horwitz himself sug-

gests, namely, from an antebellum "instrumental" conception of the law to a postbellum "formalist" conception. See The Transformation of American Law , 253-266. [BACK]

64. See Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York: Oxford University Press, 1970), and Politics and Ideology in the Age of the Civil War (New York: Oxford University Press, 1980). [BACK]

65. Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (Ithaca: Cornell University Press, 1960), 235. [BACK]

66. For a standard account, see Charles W. McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez Faire Constitutionalism, 1863-1897," Journal of American History 61 (1975): 970-1005. [BACK]

67. The first critique of substantive due process is Edward S. Corwin, "The Supreme Court and the Fourteenth Amendment," Michigan Law Review 7 (1909): 643-672. Since then, constitutional scholars have united in condemning the doctrine. Indeed, the bad reputation of Lochner is such that Morton Horwitz is moved to offer a revisionist reading. See his "History and Theory," Yale Law Journal 96 (1987): 1825-1835. For discussions about the expanded role of the Supreme Court, see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977); Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986), 144-163; William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988), 148-200. [BACK]

68. In Slaughterhouse , 16 Wall. 36 (1873), the Court upheld a Louisiana legislation creating a monopoly in the New Orleans slaughtering business. However, as legal historians have noted, it is the minority opinion there (put forth by Justice Stephen J. Field) that prevailed as a judicial doctrine in the decades to come. [BACK]

69. Lochner v. New York , 198 U.S. 45, 56, 64 (1905), quoted in Laurence Tribe, American Constitutional Law (Mineola, N.Y: Foundation Press, 1988), 568. The other phrases are quoted in William Nelson, "The Impact of the Antislavery Movement upon Styles of Judicial Reasoning," Harvard Law Review 87 (1974): 513-566. Nelson argues for a direct link between the philosophy of natural rights and the doctrine of substantive due process. [BACK]

70. For the centrality of the substantive in late-nineteenth-century and early-twentieth-century jurisprudence, see Tribe's excellent discussion in American Constitutional Law , 560-586. [BACK]

71. Lochner was overturned in 1937, with West Coast Hotel v. Parrish , 300 U.S. 379 (1937). [BACK]

72. Lochner v. New York , 198 U.S. 45 (1905). [BACK]

73. Adkins v. Children's Hospital , 261 U.S. 525, 559 (1923). The quotation is from Herbert Hovenkamp, "The Political Economy of Substantive Due Process," Stanford Law Review 40 (1988): 380. [BACK]

74. An even more chilling example is the Dred Scott case (1857), also decided by appealing to the "Doctrine of Vested Rights." See Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990), 225. [BACK]

75. The quotation is from Unger, Knowledge and Politics , 90, in the context of a larger and more complex argument about liberal psychology and liberal political theory, 29-144. [BACK]

76. Lafcadio Hearn, "Creole Servant Girls," New Orleans Item , December 20, 1880, collected in Creole Sketches , ed. Charles Woodward Hutson (Boston: Houghton Mifflin, 1924),160-162. [BACK]

77. George Washington Cable, The Grandissimes (1879; rpt. New York: Hill and Wang, 1957), 60. [BACK]

78. As a further point of contrast, it is helpful to compare Chopin's portrait of Désirée in "Désirée's Baby" and Cable's portrait of Madame Delphine in Old Creole Days . Désirée is, of course, actually not a quadroon, even though she is made to suffer the fate of one. The injustice in Chopin's story is the injustice of a mistaken racial identity. Cable's Madame Delphine, by contrast, both suffers the fate of a quadroon and is actually a quadroon. The injustice in his story is the injustice of racial identity itself. [BACK]

79. For the centrality of composition in The Awakening , see Michael T. Gilmore, "Revolt against Nature: The Problematic Modernism of The Awakening ," in New Essays on "The Awakening ," 59-87; for other examples of such "compositional" uses of human figures, see Jean-Christophe Agnew, ''The House of Fiction," in Consuming Visions: Accumulation and Display of Goods in America, 1880-1920 , ed. Simon Bronner (New York: Norton, 1989), 133-156. [BACK]

80. Pertinent to my discussion here is Gayatri Chakravorty Spivak's discussion of the "subaltern subject-effect." See her "Subaltern Studies: Deconstructing Historiography," in her In Other Worlds: Essays in Cultural Politics (New York: Methuen, 1988), 204. For two different efforts to reorient the marginality of black women, see Angela P. Harris, "Race and Essentialism in Feminist Legal Theory," Stanford Law Review 42 (1990): 581-616, and Kimberle Crenshaw, "Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color," Stanford Law Review 43 (1991): 1241-1299. [BACK]

81. See, for instance, John W. Blassingame, Black New Orleans (Chicago: University of Chicago Press, 1973); Dale A. Somers, "Black and White in New Orleans: A Study in Urban Race Relations, 1865-1900," Journal of Southern History 40 (1974): 19-42. [BACK]

82. C. Vann Woodward, Origins of the New South (Baton Rouge: Louisiana State University Press, 1971), 211-212; Eric Foner, Reconstruction (New York: Harper and Row, 1988), 200-201, 550-551. The White League (formed in 1874) was a group openly advocating the use of violence to restore white supremacy. On Oscar Chopin's membership in this group, see Per Seyersted, Kate Chopin: A Critical Biography (Baton Rouge: Louisiana State University Press, 1969), 42, 45, 95. [BACK]

83. Eric Sundquist, "Mark Twain and Homer Plessy," Representations , no.

24 (1988): 102-127; Walter Benn Michaels, "The Souls of White Folks," in Literature and the Body , ed. Elaine Scarry (Baltimore: Johns Hopkins University Press, 1988), esp. 188-190; Brook Thomas, "Tragedies of Race, Training, Birth, and Communities of Competent Pudd'nhead," American Literary History 1 (1989): 754-785. [BACK]

84. Plessy v. Ferguson , 163 U.S. 537; decision by Justice Henry Billings Brown, May 18, 1896, reprinted in The Thin Disguise: Turning Point in Negro History. Plessy v. Ferguson: A Documentary Presentation (1864-1896) , ed. Otto H. Olsen (New York: Humanities Press, 1967), 111. For a discussion of this "reasonableness" argument, see also Charles Lofgren, The Plessy Case (New York: Oxford University Press, 1987), 183-184. [BACK]

85. People v. Gallagher , 93 N.Y. 438, 448 (1883); cited in the Plessy decision by Justice Henry Billings Brown, reprinted in The Thin Disguise , 112. [BACK]

86. Editorial, New Orleans Times-Democrat , July 9, 1890, reprinted in The Thin Disguise , 53. [BACK]

87. The Thin Disguise , 111-112. [BACK]

88. Editorial, New Orleans Times , May 7, 1867, reprinted in The Thin Disguise , 35. [BACK]

89. Editorial, New Orleans Times-Democrat , November 19, 1892, reprinted in The Thin Disguise , 70-71. [BACK]

90. The gravamen of relator's plea, cited by Justice Charles E. Fenner, Ex parte Homer A. Plessy , 45 La. Ann. 80; decision by Justice Charles E. Fenner, December 19, 1892, reprinted in The Thin Disguise , 71. [BACK]

91. The analogy between marriage and slavery, I should add, was a standard trope in nineteenth-century feminist rhetoric. See Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History 75 (1988): 471-500. [BACK]

92. See William Ivy Hair, Carnival of Fury: Robert Charles and the New Orleans Race Riot of 1900 (Baton Rouge: Louisiana State University Press, 1976). [BACK]

93. Richard Wright, "How 'Bigger' Was Born," in Native Son (New York: Harper, 1940), xi. [BACK]

94. New Orleans Daily Picayune , June 29, August 1, 1900; New Orleans Times-Democrat , August 6, 1900; New Orleans Southwestern Presbyterian , August 9, 1900. All quoted in Carnival of Fury , 2. [BACK]

95. Carnival of Fury , xiii. [BACK]

96. New Orleans Times-Democrat , July 29, 1900, epigraph to Carnival of Fury . [BACK]

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