A class action case against the Detroit Public Schools on its way to the Sixth Circuit shows the perils of rights talk: if literacy is a right, what isn't?
The best path to understanding why Mary Ann Glendon is such an inspired choice to lead Secretary of State Mike Pompeo’s Commission on Unalienable Rights may run through the apoplexy of her critics.
One, writing in the Chronicle of Higher Education, calls her “iconoclastic,” which raises the question of whose icons, precisely, she is accused of destroying. She has been labeled “a religious conservative,” a phrase which here means “a self-evident extremist.” Glendon is derided as an advocate of “natural law,” which is alleged to be a code word for religiosity, even though those most rudimentarily educated in natural law know both that the concept precedes Christianity and that the whole point is that it is discernible by reason.
Even the name of the panel is under assault. “Unalienable” is “archaic,” says the Chronicle’s critic, and the reference to it must have been made with “a Trumpian smirk.” For those wondering why scholarship on the American founding is often associated with the academic right, see above; the other side is often disdainful. In any event, some Americans will find “unalienable” more resonant. Is this the road Glendon’s opponents want to travel?
Apparently. The problem is that none of these labels accurately describe Glendon’s politics, which defy traditional categories unless by means of a synecdoche in which opposition to unrestricted abortion indicates acceptance of every tenet of the Republican platform. In fact, Glendon cast her first presidential vote for John F. Kennedy, spent her early years as a lawyer advocating for African-American voters in Jackson while Mississippi was burning, has written admiringly of many European social welfare programs, authored a best-selling book appreciative of Eleanor Roosevelt, and has deplored the Republican Party’s connections to “big business.” She was also President George W. Bush’s ambassador to the Holy See. This is not a scholar toeing a party line. It is, rather, one holding to fixed convictions while parties shift.
Which brings us back to iconoclasm. Only Glendon’s opposition to certain Progressive idols—namely, the one sitting on the altar of unrestricted choice, especially in any matter connected to sexuality—explains this vitriol. “Choice” is the new organizing principle of Progressivism, except where it is not. Former Democratic Congressman Barney Frank used to quip that for Republicans, life began at conception and ended at birth. For many on today’s Left, choice begins at conception and ends at birth. Before birth, any choice is not only legitimate but sacralized; after birth, any choice—including the choice to participate in common and public religious belief—is subject to regulation.
But this is a false notion of rights, and always has been. Glendon has written two books on the subject that reflect a remarkable subtlety and complexity of thinking, which may be why those who believe in what she calls “the illusion of absoluteness”—the mistaken belief that all rights are illimitable—are unable to process it. This complexity makes Glendon uniquely suited to an age of proliferation of rights across the political spectrum.
The essay in The Chronicle characterizes her 1991 book Rights Talk: The Impoverishment of Political Discourse as having argued that the proliferation of rights had “a pernicious effect on American morals.” The argument was that it had a pernicious effect on political life because rights are often used to short-circuit conversations that political life dignifies.
That does not mean Glendon is averse to the idea of rights. Her complaint is the application of the concept to disputes better resolved—and often more advantageously resolved for the rights holder—through the give-and-take of politics. She is pro-life, which in certain circles is not an epithet, but Rights Talk also notes that in countries like France, a sliding scale of restrictions on abortion has been matched by a public responsibility to support mothers and children.
In 2001’s A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Glendon wrote approvingly of the idea that some rights are so fundamental as to deserve protection for all people in all contexts. Crucially, though, Glendon resists cherry-picking from the United Nations’ declaration to support rights in isolation from duties. (The Declaration’s 29th Article says: “Everyone has duties to the community in which alone the free and full development of his personality is possible.”) It must, she says, be read in whole.
The Universal Declaration, she notes, is rooted more in the “dignitarian” tradition of continental Europe and Latin America—that is, it emphasizes the integrity and well-being of families and the necessity of duties—than in the “individualistic” orientation of the Anglo-American tradition. As such, it rejects the false absolutes that tend to characterize the latter. To live in society is to limit choices, a point that even Locke and Mill recognized.
All this makes Glendon exactly the figure needed for a time when rights absolutism is the defining, and distorting, feature of American politics. There are people who otherwise are sympathetic to Democrats who will never cast a ballot for them because of the party’s orthodoxy on abortion. There are others who will never vote Republican because they believe the party is equally hostile to the idea that the issue is complex. Both sides are hence facing off from immovable extremes—an assertion right vs. resistance—that has no hope of resolution.
The same is true of the stalemated debate on guns. There are voters sympathetic to Democrats or Republicans on other issues who will never support one because the debate on guns has been polarized and shoved to extremes by its characterization in terms of absolute rights rather than balances of them.
Other critics of Glendon complain that she believes that forcing a single and Western view of rights on every society would risk a form of “neo-colonialism.” The criticism appears to be rooted in a desire to globalize Obergefell v. Hodges. Whatever one thinks of same-sex marriage, requiring it globally would unquestionably be an imposition of a Western decision on some countries that do not want it, and it is strange to see the Left endorse what can only be called a colonialism of convenience with respect to it. (As to the separate but entirely valid concern about outrageous human-rights abuses by regimes, such as Brunei, that impose the death penalty for homosexuality, the Universal Declaration provides capacious language with which to work. This will likely be on the Pompeo commission’s agenda.)
Glendon has written that the value of the Universal Declaration is that, read in totality, it is compatible with a broad variety of political traditions. It does not attempt to settle every dispute. Rather, it asserts those rights and duties that, taken as a whole, are “so basic that no nation would wish openly to disavow them.” It is “inseparable from its call to social responsibility,” which should be hospitable to economic concerns of the Left. This belies many caricatures of Glendon, including the claim that she opposes all claims of rights and that she is a factotum of conservatism.
The confusion apparently distills to this: Choice—total personal autonomy without regard to the fact of social life—has become the new, and only, universal right. But to live in society is to limit choice, which the Declaration of Independence’s use of “unalienable” to describe rights recognizes.
To value society is to understand that some rights are expressed in a social context, like the right of a religious order not to provide insurance coverage for contraceptive methods to which it objects. The onward and endless march of individualism does imperil those rights. It also imperils individualism in the end, not least by privatizing rights and deserting isolated individuals on a desiccated, anti-political frontier. Glendon’s contribution to protecting genuine human rights globally will be invaluable. So are her extensive and thoughtful attempts to educate domestic audiences about the complexities that rights talk entails.