The changes are not entirely bad (far from it), but they have had some very bad effects. Among other things, they have given moralism—the belief that law and public policy ought to embody moral standards, along with the belief that those standards are something other than made-up and culturally contingent—a bad name. And they have made this changed vision of rights so pervasive that even moralists tend to go along with it.
Begin with some very basic history. For most of our nation's past, rights started with property rights. They certainly did not end with property rights—since 1791, our Constitution has protected speech, religious practice, and much else—but property was the starting point, the core. Everything else was periphery. By the end of the nineteenth century there was a well-developed, extensive body of constitutional law protecting private property from government regulation, while the law of free speech was, by comparison, vanishingly small. The same pattern held in the world of theory. Enormous amounts of intellectual energy were spent in the eighteenth and nineteenth centuries on the scope and definition of property rights, while the literature on freedom of speech or religion was quite thin. (The huge free speech literature that exists today is almost entirely the product of this century, and mostly of the past three decades.) In the world of rights, property was king.
We do not take property rights so seriously anymore, perhaps with good reason, and thus we have trouble seeing rights the way that Madison's or Lincoln's generations saw them. That is too bad, for their thinking was both different from and in many ways healthier than our own. One part of the difference emerges clearly when one thinks about what property rights did—and did not—mean in the days when the legal system paid a great deal of attention to them.
Suppose I raise pigs, you raise corn, and we are neighbors. What do my property rights consist of? The answer is two-fold. First, the government cannot take my pigs or my land without paying me for them. Second, the government cannot tell me not to raise pigs, or how many pigs I can raise, or otherwise dictate to me how I must use my resources. Now suppose my pigs escape the rickety fences that keep them on my land, and they go on to your property and eat your corn. You sue me for damages, either on the theory that I am strictly liable for the harm my animals cause or on the ground that I was negligent in failing to build better fences. Naturally, you win. As a practical matter, I must now either build better fences or stop raising pigs, for I cannot afford to keep getting sued whenever my pigs act like pigs.
What if I were to claim that this chain of events violates my right to own pigs—my right to do with my property as I see fit? After all, they're my pigs, and it's my land, and if I don't want to build strong fences I shouldn't have to. The obvious answer to this claim, and the common law's traditional answer, is that I may have a right to own property, but I still have the responsibility to take others' interests into account when I use it. Indeed, in this example the rhetoric of rights cuts exactly the other way: if my pigs eat your corn, property rights should not protect me, they should protect you.
Now consider the relationship between property rights and obligations. My having a right to own pigs and land does not allow me to claim that it is nobody else's business whether I keep my pigs behind strong fences. It is your business, because my pigs might destroy your corn. It is the law's business as well, because the law must resolve conflicts between neighbors. It follows that I am not the sole judge of whether or not I am using my property responsibly. My right to property does not let me do whatever I want with it; it is much more limited than that. It only means that the government cannot take it away, and that no bureaucrat can tell me how many pigs I am allowed to raise. Property rights are not freestanding, and never were. On the contrary, they have always existed within an intricate web of common law obligations. Recklessness or selfishness, inattention to the needs and interests of others, often risked legal liability. And nothing in the idea of property rights foreclosed that liability.
One can easily overstate the point. If I squandered my pigs in bad deals, thereby impoverishing my family, or if I treated the pigs cruelly, or if I kept my land in such a state of disrepair that it lowered neighbors' property values—if I did any of these things, the law did little about it. Property rights left a lot of room for selfish and irresponsible behavior. But while one ought to acknowledge the scope of the right, it is vital to see its limits as well. Irresponsible use of one's property often—obviously not always, but often—risked tangible injury to others. And the common law tended to impose obligations whenever risks of that sort were present. Even in a legal world that gave property rights broad protection, the common law of tort and contract forced property owners to adhere to some serious standards of moral conduct in the use of what was theirs.
This point seems simple, but it is both terribly important and—judging from what courts and academics write about our law—largely forgotten. The rhetoric of the men who wrote and ratified the Constitution sounds odd to ears trained in late-twentieth-century law schools. Those men talked a lot about rights, yet they also talked a lot about morals and virtue and obligation. The two strands do not fit comfortably today, but they fit perfectly well in 1791, or 1891 for that matter. Rights did not mean the freedom to be one's own judge, to define the standard of responsible or proper behavior for oneself. Standards of behavior were real, and the common law usually embodied them. Rights did not trump those common law standards. Rather, rights ensured that there was something the government—usually meaning not courts, but the legislature and the executive—could not take away from you or could not make you do. The focus was on limiting some particularly dangerous kind of government power, not on maximizing individuals' freedom of choice. Government was limited, but people had to behave responsibly.
Thinking about rights this way explains a good deal of otherwise puzzling constitutional history. Let me offer just one example. The First Amendment protects “the freedom of speech.” Today, we would say that if that bars anything, it bars sedition laws—criminal punishment for harsh or vicious criticism of the authorities. That seems not to have been the common view in the early 1790s. Leonard Levy and other historians of the period have argued that the generation that wrote and ratified the First Amendment sought to bar such “prior restraints” as, for example, licensing systems that required the government's permission to print a newspaper. But that same generation was a good deal less bothered by jury trials for defamation or even for sedition. (The experience of the 1798 Alien and Sedition Acts may have changed a lot of minds on this score.) They saw the government power to license speech as dangerous, because the government might refuse to license critics. But speakers still had to be responsible; they were not supposed to define their own standard of conduct. If their speech was too scurrilous, juries in defamation suits or seditious libel cases could respond accordingly. Rights and responsibilities were not in conflict. On the contrary, the two traveled together.
Two dramatic changes in the nature of legal rights took place in the first half or so of this century. The idea of strong, constitutionally protected property rights declined sharply; the Great Depression made such rights seem selfish or even socially dangerous. The government still cannot take my property away from me without paying for it, but the government can dictate my use of it in a host of ways. Constitutionally speaking, property rights may not be dead, but they are at least on some kind of life support.
As one paradigmatic right declined, another took its place. Freedom of speech grew stronger and stronger, both in legal doctrine and in legal theory. Beginning with the prosecution of anarchists and other antiwar protesters during World War I, the courts heard a host of cases challenging the government's ability to forbid political protest. Increasingly, the courts took the side of the protesters. This trend accelerated greatly in the years following Senator McCarthy's investigations of Communist activities. The First Amendment ceased to be a constitutional backwater and became instead the starting point for thinking about rights. By 1960, property was plainly no longer the place where theorizing about rights began. Speech was.
In many ways, both changes were for the better. Strong constitutional property rights would have disabled modern-day safety, health, and environmental regulation—regulation that even today's congressional Republicans are mostly inclined to leave alone. And a more vigorous First Amendment made possible both the labor movement of the 1930s and 1940s and the civil rights movement of the 1960s. These are great gains, and hardly anyone wants to undo them.
Yet these changes, or rather the change in thinking they signaled, had serious intellectual consequences, arising almost by accident from the nature of most free speech disputes. When the American Nazi Party in 1977 announced its plan to march in Skokie, Illinois, home to a large number of Holocaust survivors, the marchers created no serious risk of tangible harm. The planned speech in this famous case was evil and sure to cause great pain, but the pain was not of a sort that traditionally gives rise to lawsuits: the common law has always been loath to grant relief for hurt feelings, even when the hurt is quite real. If the Nazis—with their uniforms and their flags, conveying their evil message in a place designed to cause as much pain as possible—had a right to march in Skokie, then the march was, legally speaking, nobody else's business. Because of the nature of the activity, there is no web of common law obligations to define a standard of moral, responsible behavior. The only possible source of such a standard is direct regulation by the government. The free speech claim, if it wins—as it did for the Nazis—preempts that regulation. Here, rights trump obligations. As far as the law is concerned, the Nazis get to define for themselves where the bounds of propriety lie.
This point applies to most of the settings where free speech claims arise, because selfish or irresponsible speech tends not to be the direct cause of tangible injury, and the common law tends only to protect against tangible injury. (Defamation is an exception, for there the common law has long allowed damages for the intangible harm that falsehoods cause one's reputation. Interestingly, the courts have greatly narrowed the traditional law of defamation, making it much harder for plaintiffs to recover than it was before the 1960s. And this narrowing has been done in the name of the First Amendment—in the name of the right of free speech.) If I buy or sell pornographic magazines I harm no one, at least not as the common law usually defines harm. As with the Nazis in Skokie, common law obligations do not exist, so the only legal force regulating my conduct is direct government censorship. If my right to buy or sell or read or publish trumps censorship, then I am subject to no standard at all. Or, to be more precise, I am subject to whatever standard I choose. Like the Nazis in Skokie, I am my own judge.
So while property-rights claims tended to disable some kinds of legal regulation, free speech claims often disable the only possible kind of legal regulation. That is why strong property rights could exist alongside a strong vision of law as a source of moral standards, while strong free speech rights tend to imply no standards at all: where the right applies, the right-holder's standards are the only ones that count.
Consider what all this means for the concept of rights. For the pig farmer, rights meant limits on the power of government bureaucrats to order him around or to seize his pigs. For the Nazis in Skokie or buyers and sellers of pornography, rights mean something quite different: the claim of right is a way of saying “it's none of your business” to all who might complain about their conduct. To put it more positively, rights mean the freedom to choose, without having to worry about what anyone else thinks. The idea is not to limit the potential for government oppression—that was the older version of rights, the one associated with property. Rather, the idea is to empower the individual, to maximize the ability to act on preferences, to expand the scope of that idol of our culture: choice.
Today, rights are indeed pro-choice—not coincidentally, the label seized on by proponents of the most famous, and infamous, constitutional right of our times. In Madison's or Lincoln's day, it would have sounded like nonsense to suggest that the government is acting oppressively when it forbids some kind of behavior simply because, in the view of the majority of its citizens, the behavior is evil. Madison's and Lincoln's America was home to lots of morals laws, forbidding lots of what we would now call private behavior. People may or may not have thought they were a good idea, but few thought those laws violated anyone's rights. The concept of rights simply did not intersect laws forbidding abortion, or wrongful but consensual sex. Today, rights are about choice, and anything that restricts choice is subject to attack. And choice, in turn, is at war with standards and obligations.
This dynamic is most obviously at work in the abortion debate. But it does not stop there. It is also at the heart of the debate about two other rights claims pressing hard at the legal system today. When Justice Blackmun argued in Bowers v. Hardwick (1986) for the right to have sex with the consenting adult of one's choice, he emphasized the lack of any serious state interest in regulation. The only possible interest, he argued, was moral. To Blackmun, that interest was worse than trivial—it was illegitimate, for it consisted of some people trying to impose their values on others. The same idea arises in the contemporary claim for a right of suicide. Those who argue for a right to choose the time and manner of death argue that a given patient's choice is nobody else's business, that anyone who says otherwise is being intolerant. Of course in the modern conception of rights moralism is intolerant, even bigoted. (It is no accident that Blackmun compared the state's moral interest to the interest of racial bigots in discriminating against blacks.) After all, the thinking goes, only bigotry—only nastiness—could explain why you might want to forbid something I want to do when I'm not hurting you in any tangible way. In a world where choice is king, moralists are mean-spirited busybodies.
The right to abortion, the right to doctor-assisted suicide, and the right to sexual options all flow naturally from an argument that in turn flows from the modern idea of free speech rights: it's nobody else's business what I say or do, as long as I hurt no one else. And “hurt” is defined fairly narrowly: tangible injuries count, but offense does not. Any desire to place limits on behaviors of this sort is automatically deemed intolerant and hence outside the range of polite discourse. That posture rules out most socially healthy compromises, arrangements that both allow society to act on its moral preferences and also allow those who disagree to act on their disagreement. Declaring moralism out of bounds, which is what the contemporary concept of rights largely does, not only eliminates arguments for criminal sodomy laws. (Those arguments are weak in any event, if only because it is dangerous to have criminal laws that are sure to go unenforced.) It also eliminates arguments for traditional restrictions on marriage and adoption—indeed, for anything that expresses a social preference for one kind of family structure rather than another. We have not reached that point yet, but that is where we are headed. Rights used to flow out of the thoroughly Christian view that those who govern are, like those they govern, fallen people prone to evil and in need of restraint. Today, the worst evil of all is intolerance, and restraint is a bad thing.
None of this is an argument against rights, but it may be an argument against the way we are accustomed to thinking of them. There are special dangers when the government coerces its citizens, dangers of arbitrariness and discrimination and hidden agendas. And there are good reasons to limit government power solely in order to limit government power—too much concentrated authority is a bad thing, given that power is always wielded by sinful hands. But such concerns—focusing on the need to limit power rather than the need to protect choice—lead to a very different kind of society than the kind that embraces rights in their late-twentieth-century guise. One vision is of a society that cares about and argues about morals, but with a sense of humility and restraint. The other vision is of a society of egoists, each a god unto himself, where all standards come from within.
Today, even serious Christians often embrace this second vision. Indeed, politically active Christians have not so much challenged this basic picture of rights as they have turned it into a weapon in their own short-term battles. Consider two debates drawn from college campuses today. The first concerns speech codes. Generally, forces on the political and cultural left have promulgated these codes, which have worked to restrict both speech that is personally insulting and rude and speech that is hostile to some of the left's causes (especially affirmative action and gay rights). The desire to squelch disagreement on politically contentious topics is a bad thing. But the overall enterprise seems to me promising. Surely there is something worth celebrating in the idea that universities should enforce some minimal level of civility and decency. Indeed, I would have thought my fellow Christians would like that idea, that our complaints would be about what civility and decency ought to mean in this setting, about what limits universities should and should not impose. But I regularly hear and read Christians argue that the whole idea of these speech codes, the whole idea of punishing offensive speech, is wrong and intolerant. The debate about speech codes has turned into the usual rights debate—the intolerant oppressors (this time on the left) who would impose their values on the rest of us, versus our right to choose and define for ourselves what is good or bad. Moralists too often wind up arguing not for the right kind of standards, but for no standards at all.
My second example is closer to home. I teach at the University of Virginia, source of the Rosenberger case, last year's Supreme Court decision about freedom of religion. (I should disclose that I have personal ties on both sides of that case: I serve on the board of an organization that gave some money to the students who sued the university, and the lawyer who argued for the university in the Supreme Court is a close friend.) The case began when some Christian students, publishing a newspaper about campus life from a Christian point of view, applied for university funds collected from a mandatory student activities fee and doled out by a student committee. The application was denied, on the ground that university policy forbade the award of funds for religious or political activity. This did not keep the students from publishing their newspaper, or from using university space to do it; the sole issue was whether they would have access to some of the loot in the student activities fund. The Christian students sued, claiming the university's refusal to give them money violated their freedom of speech and infringed their right to the free exercise of religion. After losing in the lower courts, the students won in the Supreme Court, to much celebration in Christian circles.
The celebration is misguided: if the celebrants understood the winning claim in Rosenberger they would (or should) be appalled. The students argued in effect that when it comes to subsidizing speech, universities are not allowed to have standards. Any decision that some kinds of speech are educationally worthwhile and others are not—even if the decision is made only for the purpose of giving out money—violates the rights of the disfavored group. If the University of Virginia, through its students, gives money to the yearbook and the secular campus newspaper, it must give money to a Christian yearbook or newspaper as well. The logic, of course, has nothing to do with the students' newspaper being Christian. The Supreme Court's decision would protect the Students for Satan just as much, if there were such a group. Come to think of it, maybe there will be, now that money is available.
Indeed, if one takes seriously the argument the Court adopted in Rosenberger, then those who applaud the decision have some very strange bedfellows. A number of Christian groups have argued that the National Endowment for the Arts should not be funding art that is sexually explicit or offensive, even if the art is not legally obscene. (Of course, it would be enough if the NEA would just stop funding bad art, but that seems too much to hope for.) But if the Court's logic in Rosenberger is taken seriously, the NEA must fund offensive art if it funds anything at all. Subsidizing some kinds of expression but not others would be taking sides. And taking sides means imposing standards, limiting the freedom of choice of those whose desire for a handout went unfulfilled.
In other words, the students in Rosenberger stood on precisely the same ground as the artists who cry censorship at any attempt to impose some limits on what the NEA can spend tax dollars on. The Christian students' rights claim won. But the claim won by seizing on a view of law and government that enshrines moral neutrality and freedom of choice as the highest of all goods. That is what happens when moralists use rights as a weapon. The moralists sometimes win, but moralism always seems to lose.
The real shame of debates like these is the missed opportunity. The issue worth arguing about in the debate about campus speech codes is how to create the conditions of civil, decent, respectful discussion. Christians ought to have something to contribute to an argument like that. The issue worth arguing about in Rosenberger is what kinds of student activities universities should and should not be encouraging. Again, Christians should have something to say about that. Even if we don't win the arguments—and let's be clear, lots of times we won't—we can at least move the culture in the right direction. But late-twentieth-century America turns issues like these into rights claims—a game that everyone, right and left, believer and agnostic, plays. The result is a terrible dynamic in our law, and to some degree in our politics as well: the none-of-your-business sphere of life, the sphere where no standards are permitted, grows ever larger. Yesterday abortion, today doctor-assisted suicide, tomorrow . . . who knows? And as rights grow stronger, standards—right and wrong—grow weaker.
To be sure, the signs are not all bad. Some aspects of our contemporary politics are encouraging. Two generations ago there was much talk about the rights of white people to discriminate against blacks. That talk has disappeared; when it comes to race we are now a society of moralists. Two decades ago lots of people talked about welfare policy in terms of rights, as though it was none of our business how recipients of government aid might use it. Now hardly anyone talks that way; the debate is about what a fair society should do for its poor and how to do it in a way that reinforces (not undermines) society's standards. Not too long ago courts and academics talked about divorce in rights terms, as though all that mattered were the short-term preferences of the spouses. Today the focus is at least occasionally on divorce's social consequences, especially its consequences for children. Moral consequences are still outside the conventional debate, but the direction is nevertheless promising.
For moralists—people who believe that moral standards ought to be embodied in law and discussed in public policy debates—that is the only direction worth traveling. And rights as they are now conceived have a powerful tendency to get in the way. Indeed, we might do well to abandon talk about “rights” altogether. Say “limits” instead. That puts the emphasis where it belongs: on the need to place bounds on the fallen men and women who exercise political power. Even better, it takes the emphasis away from where it very much does not belong: on our desire to define our own standards, to maximize our range of free choice.
I would never suggest that we undo all of the expansion of free speech rights we have seen in this century (though I'd happily undo some). Nor would I go back to the kind of property rights our legal system had a century ago. But as a society, we could do worse than to return to a way of thinking about law and government and morals that prevailed several generations ago. Our society has had quite enough arguing about the virtues of choice. We could stand a good deal more thinking and arguing about which choices are virtuous—and which ones are not.
William J. Stuntz is Professor of Law and Horace W. Goldsmith Research Professor at the University of Virginia.