RIGHTS ISSUES IN HISTORICAL PERSPECTIVE

Rights conflicts begin in legally constituted relationships that produce roles or identities. Typical relationships include ruler–ruled, husband–wife, master–servant, property owner–government, employer–employee, parent–child, and landlord–tenant. A claim to rights often requires a prior self-recognition of one's status, for example, as a wife, servant, property owner, or parent. Throughout American history, many rights claimants may simply have meant to secure from courts or other legal institutions what they were entitled to, within the received terms of traditional common law relationships. But by the middle years of the nineteenth century, claimants also drew from the Constitution a variety of rhetorical tools that allowed them to claim "rights" to change or destroy established relationships, to free themselves.

Traditional relational identities developed on the terrain of legal doctrines that extended back before American history, often to medieval English law. In legal relationships, rights were a resource over which combatants struggled. Sometimes a right asserted by the one meant the other possessed no right. If I owned land, you either were on my land by permission or you were a trespasser. As often, or as likely, a right asserted meant someone else had a corresponding duty. If I owned land, the government's agents, the police, had a duty to arrest trespassers. If I owned a factory, the government owed me an injunction to prevent the union from achieving its aims by interfering with what I regarded as my rights. A husband's rights, within a regime of common law coverture, implied a wife's duty to obey. A wife's rights, within the same regime, identified a husband's duty to support.

In order to assert a right, a claimant had to understand herself as within a relationship. But often the claimant's understanding of the relationship deviated from established legal identities. From the early years in the nineteenth century, for example, many mothers drew from the wider culture a sense of themselves as rightful caretakers of their children. But their understanding had no connection to the established law of child custody. Prior to the middle of the nineteenth century, mothers had no right to custody. Husband-fathers alone had that right, a right they could lose only by misconduct. Married mothers, by contrast, were, in william blackstone's phrase, entitled only to "reverence and respect." And even when a father lost his right, there was no legal reason why a mother would necessarily gain it.

Litigants struggled over the terms of their relational identities on doctrinal terrain filled with contradictory understandings and incoherencies. Different judges emphasized different aspects of the same rules, interpreted them in widely differing ways, made the simple complex. Moreover, American history in all its cultural and economic and political dimensions constantly pulled at received legal expectations. A country founded on a revolt of sons against a parental nation would not look at parents and see absolute rights holders. Although the inherited law of marriage included a duty on the part of wives to live within their husband's household, no American court ever enforced a husband's right to "recapture" his wife. By the 1840s, mothers often triumphed over fathers in custody disputes, even though mothers still had no legal "right" to custody.

Over a long period that began in the eighteenth century, contractually constituted identities replaced many received relational hierarchies founded in custom, established religion, common law, or statute. In nineteenth-century America, the diverse and manifold identities of servants, a few understood as "casual" laborers, far more as "domestic" servants located in household relationships, merged together into the new contractually constituted "worker" or "employee." In the late twentieth century, marital rights and identities that were once understood as fixed and noncontractual became contractualized and negotiable. The magic of contract law often re-created threatened hierarchies—famously so, in the workplace. But throughout American history, this shift from status to contract was usually understood by commentators and litigants alike as weakening established legal identities.

American federalism further weakened the capacity of law to enforce identities. Most identities were founded in laws and practices made in the states. But the states were part of a country where multiple jurisdictions made laws, but none of them had the capacity to compel loyalty and submission. Husbands may have owed a theoretically inescapable duty of support to their wives, but in America it was so very easy to leave and abandon, to go elsewhere. And the knowledge that exit was easy shaped the laws in the various states and shaped the conduct of many caught up in received identities. corporations were always subject to the regulatory and police power of the state. But in the real world of American capitalism, corporations could always leave, and take their wealth and jobs and taxes elsewhere.

By the middle years of the nineteenth century, many Americans imagined their core rights as rooted less in positive law and established relationships, and more in an identity freed from dyadic relationships. Freed slaves insisted on what one planter identified as their "wild notions of rights and freedom." The woman's rights activist elizabeth cady stanton wrote of "the inalienable right of all to be happy." Autonomy, the capacity of the free individual to imagine and realize a personal future not defined by prescriptive relationships, became a root value.

After the civil war emancipatory visions of natural rights came to be identified with a few phrases in the federal Constitution—primarily portions of the bill of rights and the reconstruction amendments—and with the first two sentences of the declaration of independence. Those phrases carried meanings that would have surprised their authors. Rights claimants read subversive and disruptive and utopian messages in the texts, drawing on diverse and contradictory sources, including English common law, liberal political thought, Enlightenment philosophy, post-Reformation theology, the medieval peasant's vision of self-ownership and freedom, and, above all else, the emergent understanding that a legitimate political order had to be one that destroyed the badges of servitude. The identification of constitutional language with emancipatory aspirations apparently resulted from the happenstance that a moral critique of slavery and a celebration of the virtues of free labor developed contemporaneously with American constitutionalism. The exaltation of freedom required the antithesis of enslavement. Nearly all of the varying meanings derived from the phrase " equal protection of the laws " were rooted in contending visions of what was overthrown with the end of American chattel slavery, understood as a long-standing and established legally constituted relationship.

Rights litigants transformed core phrases of the federal Constitution into critical tools, ways to challenge vested and received relational identities. Long-standing legal powers were recast as violating constitutional rights. The police power—the state's capacity to protect the "health" of the community—had long justified laws against miscegenation and other restrictions on marital capacity. But through the lens of constitutional rights consciousness, such powers became suspect, even if supported by political majorities. One should not have to understand oneself as guilty of "illicit intercourse" when one knew oneself as married. Nor should one who engaged in homosexual sexual practices have to know himself as a criminal sodomite. Federal judicial authority, within the limits of the state action requirement of the fourteenth amendment, became, at least potentially, a continuing challenge to relationships founded in state law.

Because constitutional texts had to be reinterpreted to do the work of divesting relational identities, and because that work had to be done by judges and other legal actors with differing capacities and agendas, meanings of rights always remained ambiguous. Litigants may have wanted to destroy vested structures that imposed and reinforced subordination. But often even the language of victory was muffled and confused. The idea of a "colorblind" Constitution that the naacp legal & educational defense fund drew out of the first Justice john marshall harlan'sdissenting opinion in plessy v. ferguson (1896) and that triumphed in brown v. board of education (1954) was intended as a constitutional challenge to racial subordination and white hegemony. Yet the demand for absolute government neutrality between the races became the foundation for "reverse discrimination" arguments made by white men who feared losses when African Americans and other persons of color gained from the destruction of previous hierarchies. Always there lurked a variety of rhetorical moves that allowed courts to re-create traditional relational identities. Homosexual sodomy remained subject to state proscription, not a constitutionally protected private right. Constitutional rights only occasionally triumphed over traditional state powers and practices; nor did they often destroy traditional vested rights and identities. There was always some plausibility to the claim that a commitment to change through constitutional rights assertions was a form of false consciousness, that faith in constitutional change was a diversion of human and moral capital away from serious political struggle.

The significance of rights disputes for American constitutional history lay less in the victories than in the faith diverse Americans invested in constitutional language. For many, hopes became identified with constitutionalism: the hope of an end to ascribed identities, the hope of change to mere law and merely vested rights and to conventional practices, the hope for newly recognized rights. The power of the faith in emancipatory textual meanings sometimes survived a generation or several generations of contrary constitutional doctrine. Rights consciousness undercut and challenged the structures that created and reinforced vested rights and identities, including received constitutional doctrine. And out of faith and hope survived the promise of a democratic constitutionalism; of a society in which all participated as destroyers and creators of constitutional order.

Hendrik Hartog
(2000)

Bibliography

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