11 - The Rights Revolution in the Twentieth Century

Summary

Americans have always framed claims of injustice in the language of rights, but the late twentieth century saw a large expansion of the domain in which the language of rights played a major part in political and legal contestation. This “rights revolution” in the twentieth century also transferred large parts of that contestation from purely political arenas to administrative and judicial forums.

Rights consciousness has been an important component of the way in which ordinary Americans have seen their place in the social world. Americans have translated their claims about what they wanted and needed for fulfillment in life – claims about their interests – into claims about their rights as human beings. The American Revolution was in part fueled by the widespread belief that the British Parliament was denying Americans their rights as Englishmen. Economic development produced conflicts over land and the use of public space that Americans framed as conflicts about their rights to property.

For most of U.S. history Americans sought to vindicate their rights through legislative action. The rights revolution of the twentieth century expanded the number and nature of the claims that could be presented as claims about rights and added the courts to legislatures as important venues for appeals to rights. The rights revolution was indeed revolutionary, but that revolution had significant conservative elements. Claims about rights were typically appeals to existing values that were not adequately realized in current practices, rather than appeals for some basic reorientation of American values. In presenting rights claims to courts, participants in the rights revolution called on judges to draw on traditions and doctrines that the advocates and the judges could find already in place.