[6.4.] Rorty’s Skepticism About Rights.

 

Richard Rorty (b.1931)[1]

·         for most of his career, a professor of philosophy at various places; currently professor emeritus of comparative literature and philosophy at Stanford

·         self-identifies as a pragmatist; sometimes called a “neo-Pragmatist”

·         his best known book: Philosophy and the Mirror of Nature (1980) [incorrectly referred to by Simon as Philosophy and Human Nature, p.302]

 

Rorty has said some radical sounding things about truth and reality:

·         truth is “what you can defend against all comers” (Philosophy and the Mirror of Nature, 1979, p.308)

·         to call a sentence true is merely to give it “a rhetorical pat on the back”. (Consequences of Pragmatism, 1982, pp. xiii).

·         there is no such thing as “the way things really are” (“Truth Without Correspondence to Reality,” Philosophy and Social Hope p.27).

 

This has led critics to accuse Rorty of accepting a sort of relativism according to which truth and/or reality are somehow relative to human beings, i.e., that reality and truth are dependent upon us (on how we experience things, or on how we think about them, or on how we describe them) in some important way. But Rorty claims that he’s not a relativist.

 

Your reading is from “What’s Wrong with Rights,” Harper’s Magazine, June 1996, 15-18.

 

 

[6.4.1.] Two Approaches to Political Morality.

 

According to Rorty, “the basic responsibility of the American left is to protect the poor against the rapacity of the rich...” (303).

 

But, says Rorty, over the last several decades the left has not lived up to this responsibility.

 

Early leftists (Rorty has in mind especially American socialists in the 1930s and 1940s) engaged in a “rhetoric of fraternity” or brotherhood [here “rhetoric” means discourse, verbal communication] arguing that “Americans had a responsibility for the well-being of their fellow man.” (303-4, emphasis added)

 

But this rhetoric of fraternity and responsibility has been replaced with a rhetoric of rights. Rather than arguing that the wealthy have a responsibility to take care of the poor, leftists now argue that the poor have a right to be taken care of, or perhaps that they have a right to (some of) the belongings of the wealthy.

·         Rorty traces this shift to the success of the civil rights movement, from Brown v. Board of Education (1954; ended segregation in public schools and thus secured for African-American children the legal right to an equal education) to Roe v. Wade (1973).

 

Rorty thinks there is a problem with “rights talk” [quotations in the rest of this section are from 304.]

 

To say that someone has a (moral or human or personal or natural) right to something is to make “political morality ... an unconditional moral imperative: a matter of corresponding to something antecedently given, in the way that the will of God or the law of nature is purportedly given.” [Given antecedently to what? Presumably, to our own human political and moral practices.]

·         It amounts to “an appeal to something that exists quite independently from anybody’s feelings about anything—something that issues unconditional commands.”

·         Rorty describes this approach as “a philosophical blind alley, a pointless importation of legal discourse into politics.”

 

It would be better to think of political morality as “a result of political discourse—of reflection, compromise, and choice of the lesser evil.”

·         On this view, political morality amounts to “an appeal to end suffering ... an appeal to fraternity, to fellow-feeling, to sympathetic concern”

 

 

[6.4.2.] Glendon and DeShaney.

 

In his explanation of the problem he detects with rights talk, Rorty refers to the arguments of Mary Ann Glendon (Learned Hand Professor of Law at Harvard Law School).[2]

·         reading 6-5 is an excerpt from her book Rights Talk: The Impoverishment of Political Discourse (1991)

 

Glendon’s general position is that “rights talk” is inadequate and that it needs to be supplemented with talk about responsibilities and obligations

 

If judges approach the law solely with a concern for individual rights, and not also with a concern for the responsibility that the government has towards its citizens, then they will end up interpreting the Constitution as did the majority of the Supreme Court in their decision of DeShaney v. Winnebago County Department of Social Services (1989) [reading 6-4, pp.306-8].[3]

 

Chief Justice William Rehnquist, writing for the majority, wrote the following:

 

                The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” Petitioners contend that the State deprived Joshua of his liberty interest in “free[dom] from ... unjustified intrusions on personal security,” ... by failing to provide him with adequate protection against his father’s violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, ... but that it was categorically obligated to protect him in these circumstances. (306)

 

 

 

 

As we have seen, the 14th amendment reads as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [The bold portion is the Due Process Clause.]   Rehnquist alludes to two different “components” of the Due Process clause:   ·         procedural due process: fairness governing the legal procedures with which the government deals with citizens, e.g., the procedures governing a criminal trial; this understanding of due process is based on a strict and literal reading of the Due Process clause. ·         substantive due process: protection against any unreasonable or arbitrary law, e.g., laws restricting the ability of bakeshop owners and their workers to enter into employment contracts [as in Lochner v. New York (1905), which struck down New York’s Bakeshop Act]   Legal scholar Lawrence Friedman says of the distinction:   [The] great expansion of judicial review in the late nineteenth century pivoted on the due process clause. Doctrines sprang out of these few words like rabbits from a magician’s hat. The draftsmen of the Fourteenth Amendment were almost certainly thinking only of procedure when they used the words “due process.” They were thinking of fair trials in courts of law. But by the turn of the century, the phrase had come to mean something quite different, and vastly greater. As the Court saw it, an “unreasonable” or “arbitrary” law amounted to a deprivation of due process. Only the justices, of course, could say what was unreasonable or arbitrary. Too great an infringement of “liberty of contract,” for example, violated the Constitution. (American Law: An Introduction, New York, W. W. Norton, 1998, p.217.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rehnquist continues:

 

[The Due Process Clause] forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. ...

... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. ...

 ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause. (306)

 

Glendon’s view seems to be that an exclusive emphasis on individual rights and a disregard for the state’s obligations to its citizens resulted in an interpretation of the Constitution according to which the Winnebago County DSS did not behave in an unconstitutional manner.

 

Justice Harry Blackmun, who also wrote the majority opinion in Roe v. Wade, wrote a widely quoted dissenting opinion in this case. In part it reads:

 

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, … “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles—so full of late of patriotic fervor and proud proclamations about “liberty and justice for all”—that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve—but now are denied by this Court—the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide. (quoted in part on p.308)

 

 

[6.4.3.] Gay Rights.

 

Rorty illustrates the problem he sees with “rights talk” with the example of gay rights.

 

·         “Instead of saying, for example, that the absence of various legal protections makes the lives of homosexuals unbearably difficult, that it creates unnecessary human suffering for our fellow Americans, we have come to say that these protections must be instituted in order to protect homosexuals’ rights.” (304, emphasis added)

·         “...what is really needed in this case: an attempt by the straights to put themselves in the shoes of the gays.”

 

To illustrate the difficulty he takes to be inherent in the rights approach, he cites Colin Powell’s objection to the suggestion that excluding gays from military service is no better than excluding African-Americans. Rorty describes Powell’s view as being that “gays simply do not have the rights claimed by blacks.” (304)

 

Says Rorty, those who support this view cite the Supreme Court ruling in Bowers v. Hardwick (1986), in which the courts found that state laws against consensual sodomy between homosexuals do not violate the Constitution. [The person charged under this case was Michael Hardwick, a bartender at a gay bar in Atlanta, who was arrested in his home for having oral sex with another man.][4]

 

Says Rorty: “people arguing against Powell have to contend that Bowers was wrongly decided. This leads to an argumentative impasse, one that suggests that rights talk is the wrong approach.” (304, emphasis added)

 

It is not clear why Rorty thinks that taking the position that a Supreme Court ruling was mistaken or unjust constitutes an “argumentative impasse.” There is no obvious reason why argumentation cannot continue once someone takes this position.

 

Rorty’s claim that an appeal to gay rights would be tantamount to an “argumentative impasse” is especially odd, given that he himself considers the possibility that Bowers v. Hardwick could be reversed.

 

But he maintains that, if it is reversed, an accurate explanation of its reversal will not appeal to gay rights. In particular, he claims that if it is reversed, it will not be

 

because a hitherto invisible right to sodomy has become manifest to the justices. It will be because the heterosexual majority has become more willing to concede that it has been tormenting homosexuals for no better reason than to give itself the sadistic pleasure of humiliating a group designated as inferior—designated as such for no better reason than to give another group a sense of superiority. (305)

 

 

Rorty was writing in 1996 and did not know that the decision in Bowers v. Hardwick would be overturned in Lawrence v. Texas (2003):   Bowers’ rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.[5]   So the basis for the decision was that state laws that outlaw sodomy between consenting adults violates the 14th amendment’s due process clause: “...nor shall any State deprive any person of life, liberty, or property, without due process of law...”   So the majority in this 6-3 ruling certainly took themselves to be identifying a previously unrecognized right: the “right of homosexual adults to engage in intimate, consensual conduct.”

 

 

Stopping point for Friday April 13. For next time, read pp.315-24.