Introduction

Y ou have the right to remain silent, and the right to free speech. The
right to go out, and the right to stay home. The right to worship, and
the right to doubt. The right against racial or sex discrimination, and the
right to hate. The right to marry and to have children. The right to divorce
and to terminate a pregnancy. The right not to be tortured. The right to die.
The right to vote, and the right not to. The right to education, and the right
to homeschooling. The right to health, and to refuse health insurance. The
right to eat, and to stop eating. The right to clean air and water. The right
to smoke cigarettes. The right to buy what you need. The right to hoard.
The right to work. The right to party.
A performance artist named Karen Finley, best known for smearing
chocolate over her naked body, claimed a right to National Endowment for
the Arts funding. She lost. A conservative advocacy group called Citizens
United claimed the right to use its corporate treasury funds to produce an
anti–Hillary Clinton movie during her first presidential run. They won.
Two Orthodox Jewish merchants in Philadelphia claimed the right to keep
their stores open on Sundays. They lost. Jack Phillips, a Colorado baker,
claimed the right to refuse to make a cake for a same-sex wedding. He
won. Two Missouri women, Ndioba Niang and Tameka Stigers, claimed
the right to braid hair without completing a 1,500-hour training course and
obtaining a cos- metology license. They lost. A group of neo-Nazis
claimed the right to unite,

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armed with racist propaganda and semiautomatic rifles, in a public park in

Charlottesville, Virginia. They won. A Louisiana man named Gregory
Sibley claimed the right to food, clothing, and shelter. He lost. A Long
Island man, James Maloney, claimed the right to use his homemade
nunchucks to teach the “Shafan Ha Lavan” karate style, which he made
up, to his children. He won.
Rights have gone viral. We debate policy in the language of rights. We
speak solemnly of soldiers heading to battle to defend them. We wave the
dog-eared constitutions that enumerate them. We kiss the hems of the
robes of judges who recognize and elevate them. The Frenchman Alexis
de Tocqueville wrote in 1835 that “scarcely any political question arises in
the United States that is not resolved, sooner or later, into a judicial
question.” That was hyperbole in his time, but it rings true in our own.
Rights are the commandments of our civic religion. This book is about
how to get them right, and why it matters.

Taking Rights Literally

Just after 10 a.m. on the morning of Sunday, May 31, 2009, a fifty-one-
year- old airport shuttle driver named Scott Roeder rose from a pew at the
Reformation Lutheran Church in Wichita, Kansas, rested a .22-caliber
hand- gun against the temple of an usher, Dr. George Tiller, and pulled the
trigger. A prominent provider of late-term abortions, Dr. Tiller had
survived the bombing of his clinic in 1986. He had survived being shot in
both arms in 1993. He did not survive Scott Roeder’s bullet. He died
before paramedics arrived.
At his murder trial, Roeder admitted that he had killed Dr. Tiller, but he
claimed a “necessity” defense. A murder defendant can claim necessity if
he killed to prevent a greater harm to others, like the trolley switchman in
the old philosophy dilemma. For Roeder, the “others” whose rights he said
he was protecting were fetuses, or, as he called them, “unborn children.”
Private violence begins where the law runs out. Pimps, hit men, and
mob goons enforce contracts the government refuses to back through its
police
 Introduction xv

and courts. Terrorists turn to violence when they see ordinary politics as
fruitless or hostile to their agendas. Vigilantes promise security or justice
to those the state is unable or unwilling to protect. Roeder believed it was
for him to defend those whose rights the law would not recognize.
Roeder’s act was grievously wrong, but he was right about one
thing. In Roe v. Wade, the Supreme Court said fetuses do not have
constitutional rights. Justice Harry Blackmun, Roe’s author, thought
denying fetal rights was the price of saying women had the right to
control their bodies. Either women had constitutional rights or fetuses
did. There was no middle ground, no room for compromise or negotiation.
The fight over abortion has since become a war, with people like Scott
Roeder anointing themselves as its noble guerrillas.
The story of abortion rights sets into tragic relief a common but
unrecognized problem in American law: in striving to take rights
seriously, we take them too literally. We believe that holding a right means
getting a judge to let us do whatever the right protects. A right to racial
equality means no segregated public schools. A right to vote means no
property requirements. A right to free speech means no sedition laws. For
Blackmun, a right to abortion meant minimal abortion regulation.
This attitude might make sense in a world in which rights are few and
therefore precious. Fiat justitia, ruat caelum: Let justice be done, though
the heavens fall. But in a modern, cosmopolitan society, rights are not few
and precious. They are many and ubiquitous. Racial equality isn’t just
about segregated schools but also race-based affirmative action and single-
family zoning laws and prison overcrowding. Voting rights are not just
about property requirements but also voter ID laws and butterfly ballots
and partisan gerry- manders. Free speech is not just about McCarthyism
but also corporate elec- tioneering and 8kun manifestos and deep fakes.
Abortion is not just about a woman’s destiny but also matters of life and
death. Rights are everywhere, but we disagree, intensely and in good faith,
about what rights protect. Both rights and disagreement about rights are
inevitable. They need somehow to coexist.
“The problem of the twentieth century,” W. E. B. DuBois wrote in 1903,
xvi Introduction

“is the problem of the color-line.” That same year, the Democratic
candidate for Mississippi governor, James Vardaman, ran on a platform of
racial terrorism. “If it is necessary,” he announced, “every Negro in the
state will be lynched.” He won and was later elected to the U.S. Senate. In
neighboring Alabama, a Black Montgomery janitor named Jackson Giles
submitted his case to the U.S. Supreme Court. Giles had been denied the
right to vote under the 1901 Alabama Constitution, which gave limitless
discretion to local registrars to deny ballots to Black voters. John B. Knox,
who presided over the state constitutional convention, had announced that
the convention’s goal was “to establish white supremacy in this State.” But
the Court denied Giles’s claim. Writing for the majority, the sainted Justice
Oliver Wendell Holmes Jr. told Giles that, in the face of a state-ordered
racial conspiracy, a mere court order would be nothing more than “an
empty form.”
Racial discrimination of the kind the brilliant but deeply flawed Justice
Holmes and so many of his fellow judges let stand in cases like Giles’s left
a stain on the U.S. Constitution. Strong rights helped to scrub that stain
away. Cases such as Brown v. Board of Education, affirming a right to
racially integrated public schools, and Loving v. Virginia, striking down
bans on interracial marriage, calcified the courts’ formal commitment to
the right of racial equality. Rights had to be resilient to weather the
massive resistance embodied in Jim Crow. Rights had to be absolute, or
close to it, lest they succumb to ever more ingenious devices of racial
subordination. Rights had to be decided by federal judges with life tenure,
because politicians have publics and can’t be trusted with something so
dear. Justice Holmes’s casual dismissal of Jackson Giles’s rights was
shameful. It deserves our scorn.