In 1991, Harvard Law professor Mary Ann Glendon came out with Rights Talk, a warning that Americans had embraced a divisive understanding of rights that would lead the country into greater and greater strife. Americans, she argued, tended to regard declaring a right as the solution to any problem—and the more absolute the right, the better. Getting your right honored allowed quick victory, often in court rather than politics; but the wrong people usually won, and even when the right ones did, it left polarization in its wake. America’s most renowned theoretician of rights, the late Ronald Dworkin, had argued that rights are like “trumps” in a card game that make majorities irrelevant, and oblige judges to ignore them. For Glendon, such a political culture distracted from communal life and hard questions, and it was not making things better, but worse.
Her point was not to take rights less seriously—she celebrated how the civil rights movement had helped end American apartheid. Born in western Massachusetts, she had participated in the civil rights movement herself and married an African American man several years before the Supreme Court, in Loving v. Virginia (1967), decreed that the right to marry meant anti-miscegenation laws that remained in the states were unconstitutional. But she worried that the invocation of rights was now serving only “to heighten our awareness of how deep, stubborn, and complex are the nation’s problems of social justice.” Judges were saddled with the task of solving them, which they failed to do; the Supreme Court could, for instance, order schools to integrate, as it did in Brown v. Board of Education, but it could not prevent the intractable disputes that followed over busing. The rights that judges enforced in absolutist terms remained a short list, with speech and property at the top of the list. And for Glendon, a Roman Catholic, the addition of abortion rights in Roe v. Wade had inflamed the country rather than unifying it.
She proposed that rights didn’t have to be polarizing. Renowned as a comparative lawyer, Glendon wrote glowingly of how Europeans accepted entitlements favoring laborers and poor people. They could do so because they treated rights with less absolutism than Americans do. Europeans had more rights, but adopted them in a more communitarian spirit, reconciling them with other commitments. To establish a right to abortion, American progressives relied on the absolute right to “privacy”; by contrast, German judges hewed out an entitlement to abortion by acknowledging competing claims and interests, including that of unborn life. Poor German women, as a result, had a less fortified abortion right on paper but easier access to abortion in a generous health system, while American constitutional law gave “poor, pregnant women” a “constitutional right to privacy and little else.” No fanatical Reaganite, Glendon was looking for a political alternative back then; America’s rights culture was not helping bring it about.