By Mary Ann Glendon


The Free Press New York 1991




            In Tocqueville’s ten-month study of America he found that the lawyers’ habits of mind ran down through the lowest ranks of citizens.   Legal historian Lawrence Friedman has said that modern America is “a vast, diffuse school of law.”  The language we have developed for public use in our large, multicultural society is more legalistic than what Tocqueville heard and draws less on cultural resources.  Since 1831 and especially since WW II rights talk has become more morally neutral, adversarial and rights oriented. 

        At least until the 1950s the principle focus of constitutional law was not personal liberty, but the division of authority between the states and the federal government. 

Pg. 5.  Today the bulk of the Court’s constitutional work involves the claims that individual rights have been violated.  The shift was, of course, with the civil rights generation.  Law got more attractive and exciting as a major.  This change has obscured the important roles that federalism, legislation and the separation of powers still can and must play in safeguarding rights and freedom. 

           This was born of spotting racism and corruption in local politics that made normal activist channels difficult.  Brown v. Board also inspired.  Legal tactics were preferred to voter’s rights gain and the hard work of organizing in the political arena where one might only be able to gain a compromise.  The courts started to interfere in the running of prisons, hospitals and school systems in every locale. 

          Our vocabulary change is as dramatic as the legal.  Pg. 9. We say we can do whatever we please, but when we think of criminal law we know that is not true.  But the American version of the language of rights is the language of no compromises whatsoever.  In the Republic absolute freedom is said to be great until the details are unpacked (no one has to go to war or participate in government). 

         The words of the Declaration of Independence and World War II provide the basis of American version of rights.  P. 12.  What is unique in our version is the way that American rights talk (separate from the way we live and talk in our neighborhoods and families) is that right are presented as being individual, absolute and free from implying responsibilities.  This characteristic is clear when you look at the way rights are discussed in other liberal democracies.  When Canada inducts it tells people to be political and get along with their neighbors, we say you now have rights unfettered.  There is no talk of limitations or duties to the community or respecting morality or public order or the general welfare in our documents. 

          Our language comes from a melding of the Anglo-American rights tradition with the more nuanced dialect of rights and responsibility associated with the Romano-Germanic legal traditions.  These are further blended with the Enlightenment declarations.  We do Hobbes and Locke without the continental Rousseau and Kant.  Another peculiar bent is our total substantiation of the individual. 

          We expand rights without an eye to the end in mind.  Our limited vocabulary makes us like a foreigner who can say “food” “Shelter” and that’s it.  Limited conversation.  It walls us off from our fellow citizens.  She does not wish to get rid of rights, but deepen our talk about them so they reflect our common understanding of lived reality.  We need to balance the rights vision of the Founders with the republic talk.  But how can this be nourished? 




            p. 18 A man’s home was his castle, but apartments bring us into an “auditory intimacy” with our neighbors.  One person’s children’s noise can breach the moat of distance.  The judge told them to work it out civilly.  No right to eviction, no right to make as much noise as you wish. 

        English law has legislative, not judicial, supremacy.  Not being shared by England nor Canada, our version of rights talk cannot be blamed on the mother country. 

        p. 21 The origin of our version goes back to Locke the story teller in his Second Treatise of Government where he tells of the “state of nature” and “all the World was America.”  Natural products were enhanced by the labor of man and made it his property alone (at least where there is enough for others left in common).   This shows that individual rights of ownership are anterior to government.  But we submit to government to safeguard our property.  Property meaning “lives, liberties and estates”.  This is “the great and chief end” for which men come together in commonwealths. 

        Rousseau, by contrast, said man in nature had no property.  Locke’s treatise was meant to bolster limitations on royalty.  Once parliamentary prerogatives were established, it was dropped in England – but not here.  Blackstone argued that when folks multiplied civil rights replaced natural rights.  He was infatuated with the absolute nature of rights.  His became the law book in the US. 

        All the founders were steeped in Blackstone.  P. 24 The founders had seen how State governments had trammeled property rights in the name of democracy and so saw it as being of central importance.  It provided a convenient symbol for the ways in which government must be limited.  It symbolized responsibility for self. 

        This created problems from the beginning.   The 5th amendment specifically recognized eminent domain.  In the Charles River Bridge case (1837), the Supreme Court allowed a second bridge to be built because it favored the community. 

        But they overwhelmingly sided with property.  The Dreadful Dred Scott case went the other way.  And they continued to invalidate public safety measures on the basis of property rights.   The State Courts said a man’s home was inviolable.  Public rights were a product of the 1930s court and 1937 National Labor Relations Act where they upheld the right of the government to have minimum wage laws.  In the 1950s they really allowed any eminent domain a legislature conjured up.  Pg. 30 Poletown in Detroit being given to GM is a stark example. 

        In the 1960s welfare and jobs began to be reconceptualized as form of property for constitutional purposes.  The right has tried to get property rights back to being absolute, but they are a shell of their former self.

        Rousseau said private property was a crime.  Greeks worried about private orientation and greed and the Bible speaks of stewardship and your duty to the community.  It is arguable that Rousseau’s greatest contribution to Western scholarship was to keep these two sources alive in our minds.  P. 34, keeping us in touch with Jerusalem and Athens.  Inequality made Europe amenable to this sort of talk. 

        The post Napoleon re-established French monarch made no attempt to give the property back to those the revolution had stolen it from.  This reality informed the whole continent.  Frederick the Great worked on the concept that the public had to provide for those who could not provide for themselves. P. 37.  Rousseauean rhetoric, classic notions of virtue, biblical injunctions and feudal vestiges separate the continental view of property and rights from ours.   

        The US Supreme Court, “began in the 1950s to expand the constitutional protection of a broad range of personal rights-freedom of expression, equal protection of the laws, and various rights of criminal defendants.  Meanwhile, all Europe was reexamining fundamental legal ideas in the light of the experience with National Socialism.  Legal positivism, the notion that one’s rights are no more or less than what the law says they are, now seemed untenable.” 

        Pre-political rights looked appealing.  There has been a problem finding grounding for these rights however.  And few of these rights are presented as absolutes.  The Canadian Charter of Rights and Freedoms of 1982 guarantees rights, “subject only to subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  The German Basic Law of 1949 says that property imposes duties to serve the public weal. 

        Dworkin is very Blackstone.  Many of the individual rights now exerted borrow in language from that developed for property in the US.  But the qualifications of other traditions shows that rights needn’t be so absolute. 

        P. 42. The stark language of the 1st Amendment gives the appearance of absolutes and Justice Black said he believed in “Absolutes.”  The deference and place given freedom of speech is a sign of the essential dependence of our democratic political order upon ongoing reasoned deliberation.  Respect for that process of deliberation would seem to require truth-telling about rights.  Many who want a strict interpretation of the second want a loose interpretation of the first. 

        But this stark language cannot explain our embracing of absolutes where others won’t.  Property isn’t even an unqualified right in our constitution (the fifth).   The roots of our take on rights must be found elsewhere (Locke and Blackstone).  P. 44. But on top of this the pervasive legal nature of our consciousness is a cause.  We are the most lawyer ridden society on earth and that whose lawyers are the most adversarial. 

        Claims of absoluteness have the ill effect that they downgrade rights into the mere expression of desires and wants.  They express our most infantile nature.  Rights talk silences responsibility talk.  Seatbelt laws for example.  Helmetless riders have loved ones and become helpless and expensive in the hospital.




            Karl Marx was the first to note that life liberty and property are the rights of a separated, independent individual.  The Court did not make the right to privacy from whole cloth.  It is implicit in Locke, Hobbes and Blackstone.  Where did this individual self-sufficient image come from? 

          Again, John Locke said we had property in nature, but we entered into government to protect our property more efficiently.  Blackstone always said this “absolute” right was a residuum of natural liberty. 

           Mill saw privacy of the private life, not based on right, but fear of government. 

          p. 49. The major spur to legal rights to privacy came from photography and mass communication.  The rich were the first to feel their personal lives being made private.    

          Brandeis laid the theoretical grounding for the right to privacy in a Harvard Law Review article.  It was grounded in the right to enjoy your property.  P. 53 He coupled this with Mill’s fear that the mediocre masses will stifle the lone genius’ potential (though they didn’t cite him?).  Brandeis later said that publicity could clean folks up.  Brandeis dissented in a wire tap case and said the fourth and fifth gave a right to privacy.  The right to be let alone was called, by the 1950s, the underlying principle of the Bill of Rights.  But the right to privacy did not flower until 1965’s Griswold v. Connecticut.  This was to protect family and marriages from intrusion (ie protect them). 

In 1972 it became the right of individuals to be protected in Eisenstadt v Baird and then Roe v. Wade in 1973.  The fetus was not a person and so they had no contravening rights.  Laws requiring she be given information or the option of help for adoption were considered to interfere with her isolation.  There was no grounding for this right.  It was absolute.

 In 1986 the court narrowly upheld a Georgia anti-homosexual law.  It said there was no right to sodomy.  But by Bork’s failed nomination privacy had become a trump, a super right. 

P. 61. Other countries have gone different ways.  The French, in 1881, said you had a right not to have your picture published without your consent.  German Basic Law of 1949 says “Everyone shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral code.”  The word used for development means folding out.  England and France don’t really have judicial overview to the point where the courts can stop laws. 

p. 64. German statues further specify that you may not violate another’s right.  They had a nearly identical case to Roe v. Wade.  They answered it in the light of their “confrontation” with National Socialism.  This implied that they had to protect life.  They also considered the ethical message sent by a law allowing abortion on demand!  Thus it went back to the legislature who put information and waiting periods and steps in the way to allow it, but with the appropriate moral gravity and difficulty accompanying it.  They are also entitled to lots of single mom support and help if they will take it to term.  All our women get, by contrast, is a right to privacy.  We cannot even give information because it implies the state making a moral wedge and statement.  In our system it is only a decontextualized war of rights.  Right to choose, right to life. 

p. 67. We are much more likely to be able to print anything about anyone.  In Germany, they delayed the census by four years because the information could be used to bad effect.  We have a problem regulating guns due to a don’t tread on me vision of the individual.  We have gone from the privacy of family to that of the individual. 

But this is backed up by a deeper understanding of the individual.  Locke, Hobbes and Rousseau’s myths about the individual in nature saw him as unmolested or seeking to be.  Rousseau alone saw alone as healthy and natural.  His great admirer, Kant, also saw man as a solitary thinker.  And Adam Smith turned us into homo economicus (selfish, calculating and seeking self-sufficiency). 

None wrote of the family nor of women.  They wrote of “man”.  Locke, to disprove the analogy of monarch to citizen as father to child, put bad spins of the family that included Incans eating their children.  Rousseau, more accepted on the continent, did say that socialization was needed for the individual and so, like Plato, stressed education. 

Marx noted that none of the rights of man go beyond the egoistic man. 

p. 71 The West German Constitutional Court in 1970 said that the “The concept of man in the Basic Law is not that of an isolated, sovereign individual; rather, the Basic Law resolves the conflict between the individual and the community  by relating and binding the citizen to the community, but without detracting from his individuality.” It is a departure from classical individualism and rejects collectivism. 

Kant influenced Wilhelm Von Humboldt who influenced Mill.  

Our decontextualized man runs into most trouble when making laws for procreation, family relations or child rearing.  Our divorce laws assume individual self-sufficiency as do our aid to dependent family laws. 

The French 1946 Constitution says that “The nation shall unsure to the individual and the family the conditions necessary to their development.”    The German Basic Law also protects “Marriage and family”.   Duty to children Protection of mothers.  The Universal Declaration of Human Rights also recognizes the family. 

p. 74 Parents are ill served by laws that treat their families as “life-styles.”  The elderly and frail also need more help than rights to autonomy.  Our lack of vocabulary about things other than the individual creates the situation it is limited to speaking about.




            We nor government have no duty to help others.  We have a right to ignore those in mortal danger.  European constitutions do impose this duty on individuals and governments.  The Yania case establishes our right not to help others who are in trouble.  In 1980 it was held that an Aunt had no duty to warn her 11 year old nephew that the seat on the power mower was loose.  

        P. 80 Lawyers are socialized by discussing these cases in their first year.  An Olympic swimmer has no duty to rescue a drowning baby.  They are challenged to find a basis upon which this duty my hang.  The message is that the law distinguishes between acts and omissions.  And another is that they should not make the mistake of confusing their personal notions of morality and the law. 

            The right to negligence is especially true if the folks involved have not entered into a “special relation” where there is an expectation of protection.  Nephews and neighbors are, legally, strangers.  In no legal codes are there duties to help others.  Social norms were the source of this duty.  The law now seems to condone anti-social behaviors and only considers changing to the tune of requiring damages be paid, not duty required. 

Pg. 84 In France, the person is liable to the public and public prosecution, but not liable to the people involved.    Why do we only look at tort (damages) laws?  Perhaps it represents our traditional preference for private, rather than public, solutions.  But another factor is that in Romano-Germanic systems of Continental law criminal codes reflect reinforcing widely shared minimal standards of behavior.  The rescue laws remind us that we a part of society and have duties to good citizenship.  We are uncomfortable with law touching moral sense.  We have stressed the separation of law and morals for much of the twentieth century. 

It is a nation of laws, not men.  She is not suggesting that law should go back to being the moral schoolteacher it was in colonial times.  A nineteenth-century English jurist wrote “Law cannot be better than the nation in which it exists, though it may and can protect an acknowledged moral standard, and may gradually be increased in strictness as the standard rises.” 

            We see law as command, as in Hobbes, and so resist it.  Others law as agreement ala Kant and Rousseau, who accept it. 

            P. 86. Holmes in the most widely quoted legal article ever written by an American roundly denounced the “confusion between legal and moral ideas.”  He expounded a strong moral relativism, where my morals and the others were just personal desires.   Researchers found that if a law were passed about the duty to rescue, people would view those who didn’t comply more harshly because they thought the law stemmed from representing the majority opinion.  Some states have enacted “good Samaritan” laws that give people immunity from damage if they were trying to help. 

            p. 89 Do police have the duty to help?  Jackson v. City of Joliet in 1980 showed that the police have no special relation to you and if you are in a burning car they can just call 911 and look the other way.  The courts said also that a ruling of negligence and damages would cause tons of litigation and bureaucracy.  The ruling was made by none other than the theorist Richard Posner.  He said the Bill of Rights is a charter of negative, not positive rights.  If the feds imposed such a duty, the States would have to make some provide services for others without consent.  If local authorities do not provide services, the political process of the city and state is the remedy. 

In DeShaney v. Winnebago the Supreme Court asked if the State could be sued for failing to remove a boy being beaten by a father on behalf of the absentee mother.  There was no special relation between the child and the department of social services.  It is not a violation, said Rehnquist, of the due process clause.  He was not deprived by the state.  The abuse did not happen in a state foster home. 

P. 94 Justice Brennan dissented.  He said the county did not competently follow through on a duty it had voluntarily taken upon itself.  Rehnquist said no, you have no right to government aid.  This could be interpreted to say that we are a nation of strangers.  Rehnquist said we are in the “free world”, this unfortunate choice of words would not sound good to the boy who was beaten.  Court opinions are, however, not addressed to the litigants, but to the community of interpreters. A nicer opinion would have mentioned the remedies that were available to the boy and family ($50,000 from Wisconsin).  

She worries that this decision has sent an alienating message to the general public.  The message is also sent out to public officials.  She also admits, however, that if they had been allowed huge sums of money, it might not have secured better services in Wisconsin.  The State might have been drained of funds.  He was right, she concludes, in sending them back to the political system, but said it poorly. 

P. 98 How do other countries conceive of the obligation to come to the aid of the needy?  We have no constitutional commitment to it.  In most Western European states, the constitution guarantees old-age pensions, national health care and unemployment compensation on par with free speech and rights of property.  Rehnquist’s statement would not fly there.  When they did their post WW II constitutions they added positive rights. 

This European language does not necessarily mean, however, that the rights are enforceable.  These pare called “programmatic rights,” or statements of public goals and social aspirations whose implementation must await legislative or executive action and budgetary appropriations.  And we do have comparable rights under the welfare state established in the 1930s.  These cannot be withdrawn without due process of law.  Nor can they be distributed unequally. 

These programs keep responsibilities of the citizen and state prominently in view along with rights. 

P. 101 There is a traditional silence in American law, however, regarding the duties of the citizens individually or collectively to come to the aid of one another.  When the constitution was written government was to be small.  Now it has usurped all and the customary norms have diminished.  Law goes where no other institutions go.  Americans today, rightly or wrongly, regard many legal norms, especially those of criminal, family, and constitutional law, as expressions of minimal common values.  So we need to be very careful when we defend restatements of older positions. 

No duty to rescue sits uneasy with us because there are so many places with no community.  As social bonds become weaker a moral vacuum arises.  Law tends to move into this vacuum.  We have not generated a language about responsibility.  Blackstone guards property, DOI says our rights are inalienable but only mention the duty to overthrow bad governments.  The general welfare did not mean a welfare state and when the 1930s one came it was not delivering a hibernating promise, but against our background of government distrust. 

p. 105 Legislators need to be aware of the pedagogical dimensions of the laws they pass.  These laws say what kind of people we are and what kind of society we are creating. 

p. 106 All over the Western world, divorce became easy on no-fault grounds in the 1970s and 1980s.  There are three approaches to the problems of continued dependency after divorce.  The continental pattern in France and Germany places a strong emphasis on the financial obligations of former providers.  The Nordic welfare states give priority to self-sufficiency and supplement it with government programs.  They treat it like an illness or unemployment.   Americans do self-sufficiency without the support.  Every attempt to gather child support is met with civil libertarians talking about rights. 

We would not endorse the notion that we can divorce our children, but the law does and the state shows indifference. 




            p. 110 The flag burning dispute puts rights talk against a vacuum of vocabulary concerning community.  There is a disagreement between those who equate all widely held standards with oppression and those who regard the extension of constitutional protection to flag burning, child pornography, or sadomasochistic art and all the practices and procedures through which a society constantly defines and redefines itself. 

            Detroit’s Poletown folk could only talk about property rights and make an analogy to environmental protection.  No other language was available to them.  Plant closings also are poorly expressed.  Youngstown talked of “community property” having arisen.  There is no “community property” in American jurisprudence, however.  Arguments are framed as the economic interests of the owners v. the employees.

            Western Europe requires notice and sometimes retraining and moving help.  Not seen as pro-labor, but as addressing the long-term interests of community, family and a productive work force. 

            A 60 day notice requirement in America was passed over Reagan’s veto.

            The Sierra club could not sue to preserve federal parkland as a shared natural resource.  They had to find individuals that were harmed.  Except with corporations, which have been defined as individuals, the law does not recognize groups or associations well. 

            P. 115 Associations are seen as interest groups: groups of self-serving individuals.  There hasn’t been that big a need to take care of such things.  At the Founding, these familial and community associations just seemed natural.  That is not to say that they did not think these social institutions were important.  Jefferson, Adams and especially Madison stressed their importance. 

            They could not have for seen the bureaucratic dependence of the populace, the flourishing and deterioration of public education.  They assumed the social environment would always just be there. 

            P. 117 The French revolutionaries sought to get rid of institutions that competed for loyalty with the state.  They sought to make the people, society, and the state one.  Napoleon stopped attacks on institutions and brought the social society under the wing the central government.  Tocqueville, Durkheim, Hegel, Marx and Burke about what might happen if social institutions became weaker as government became stronger. Tocqueville and Burke particularly saw a connection between rootedness and civic virtue and the danger of selfish private orientations.  Tocqueville saw hope in private associations and Durkheim called them “secondary groups.”  The State is too remote to bring unity. 

            Whereas Marx thought the State would wither away, it has in fact gotten stronger and society has withered away.  Our rights bearing vocabulary doesn’t give us a way to bring it back. 

            Family values are talked of often by politicians.  These are platitudes.  Those involved are more interested in yelling at each other than actual families.  The right talks about “traditional” families as a “basic social unit.”  The left sees the traditional family as “patriarchal” artificial and oppressive.  They speak of “families” rather than the “family”.  The right says laissez faire economics will bring back the family reliance.  The left says no, redouble support efforts.  Voters are frustrated in having to choose between these two positions. 

            p. 122 Until the 1960s law held the ideas on the cultural right.  Marriage was treated as an important support institution.  Father had most decision making power.  Family members could not enforce contracts against each other or sue each other.  Women were to be faithful and children born out of wedlock had hardly any legal standing at all. 

            Now the legal assumptions look like those of the cultural left.  Divorce is an individual right that one spouse can enter into.  Gender based distinctions are gone.  Family members can sue each other.  Formal and informal marriage distinctions have been blurred and there are no legal discriminations against children born outside of marriage.  Child support has been largely replaced with the idea that the spouses should be self-sufficient outside of marriage - spousal support, if awarded, should be temporary.  Families are treated as a collection of individuals.  The discussions over what a family is reflect its final deconstruction. 

            The traditional family does seem to exist when the ids are small and then go to a dual income model after that.  This is ignored by family deconstructers.  That gender differences can be disregarded is an unrealistic as the notion that they can be rigidly prescribed.  Women are more financially vulnerable in divorces.  The wife does most child care.  Generally family has been defined as a household with more than one generation.  That is being challenged. 

            Our stake in children being raised is greater than how adults choose to arrange their lives.  Europeans differentiate between households engaged in raising children and those who are not.   We are coming at this definition slowly. 

            P. 126 In the 1970s a regulation about a neighborhood being for families excluding grandmothers raising kids was struck down.  What of single moms or homosexual couples?   All agree that healthy families are important, but how to create them is very disputed. 

The disputants do not worry about the continuation of a free, democratic, and egalitarian regime.  But liberal democracies are not a given. SHE HIT IT!  Character is a part of this.  We shy away from such discussions because we do not want to seem judgmental.  We do not consider the emotional and financial costs to the children.  The duties to uphold the recreation of society take a distant back seat to individual rights and prerogatives. 

When asked what makes a good citizen only seven percent of young people mention our being a democracy.  People for the American Way did the survey but offered no explanation.  A separate analysis found that young people know less, care less, vote less and are less critical of their leaders than any group has been in the last 50 years.  Young people of the past have been as well informed as older folk. That is no longer the case.  It is possible that the decline of the family, along with tv, has exasperated this. 

P. 130 We need to switch from thinking about family policy to family ecology.  Family policy is about setting up conditions for the future.  Urie Bronfenbrenner has written about human ecology.  A study in Hawaii in the 1950s identified factors that shield at risk children.  Intelligence and personality.  Stable families with at least one caretaker with whom they bond.  And third, a support system systems external to the family.  School was seen to be a home away from home for some, mentors, YMCA, churches especially.  Neither formal social service agencies nor mental health professionals were found to have played a significant role. 

This was done just as families started to disintegrate and so highlight the importance of community connections.  In 1960 fewer than 10 percent of American children lived in a single-parent home.  By 1988 it was 25%.  More than half of all children born in the 1980s will spend part of their childhood in single parent homes.  Nearly half of all female-headed families with children under six live in poverty. 

The community supports are important but they in turn depended on families.  Law cannot replace families or communities, but it can at least seek not to undermine the social structures upon which they rely.  We should not treat child-raising as just another life-style choice.  Tax, zoning, and social assistance laws should take credence of their affect.  We should not apologize for defining our society as one that relies heavily on families to socialize its young and encourages, aids and rewards this endeavor. 

We should refer to natural ecology systems.    But Michael Walzer has warned that the four mobilities, Geographic, Social , Political and Social has resulted in there being no out there to rally but separated, rights-bearing, voluntarily associating, freely speaking, liberal Americans.  We are living on inherited social capital, consuming our resources without replenishing them. 

P. 137 Group rights language doesn’t help.  These pit groups against individuals, one group against another, and group against state.  Oppression and tribalism lurk there.  Group rights are ephemeral, not communities.  They can also be NIMBY.   No prisons, foster homes, mentally retarded or public works here.  We need rather, a more ecological way of thinking about social policy.  Groups are important, but not for their own sake. 

When individual rights are able to undermine communities they destroy their underpinnings.  Free markets, strong states and civil society are all potential threats to individual citizens.  But a weakness in any puts the entire democratic enterprise in danger. 

She likes the vouchers for private child care centers idea.  These strengthen private community institutions.  Old people can work in these church based centers. 

Adolescent pregnancy laws are another case in point.  The Adolescent Family Life Act (ALFA) gives grants to private organizations to develop programs to assist teenage parents and research into what causes it.  It is community based legislation.  Was it to allow funding for birth control or abortions thought?  But it saw government being interested in social ecology.  It does not organize communities, but helps community groups already in place.  In an encouraging decision, the Supreme Court upheld the challenge to ALFA on church/state grounds.  P. 142 The decision showed a growing Court willingness to appreciate civil society. 




            “But a great civilization can also be recognized by its refusal to borrow, by its resistance to certain alignments, by its resolute selection among the foreign influences offered to it . . . Fernand Braudel


            When asked to identify 16 places on a map we, of course, came in last.  We are also unconcerned with the legal culture of the rest of the world.  It is ironic that we have contributed so much to the judicial world, but now barely participate in it. 

            Belfast v. Atlanta

            In both places anti-homosexual laws were challenged.  Mr. Dudgeon did so in Belfast.  The European Commission of Human Rights held that Northern Ireland’s legal prohibition of homosexy violated Article 8 of the European Convention on Human Rights. 

            Article 8 reads:

1.      Everyone has the right to respect for his private life and family life, is home and his correspondence. 

2.      There shall be no interference by a public authority with the exercise of this right except such as is in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 


Mr. Hardwick challenged in Georgia. 

            There being a supranational court is new.  The Dudgeon case of N. Ireland said that regulation could happen due to the need of a democratic society.  Necessary for the protection of morals did not require an emergency.  But the wanting to create a moral society had to be weighed against the harm done to Mr. Dudgeon.  They also weighed in whether or not it was wise to create a Euro-norm for all countries. 

                        Our own Justice White said his right to privacy was not violated as there is no right to sodomy.  The other side said he had the “right to be let alone” and that “a man’s home is his castle.”  It wasn’t very nuanced.  Both White and Blackmun said that the right either had to be fundamental or not at all.  Neither looked into whether or not there was a rational basis for the Georgia statute. 

                        White’s opinion gives the feeling of callousness towards the feeling of a minority in the way that the Euro court’s decision does not.  Their decision gives fewer grounds for gloating and alienation or anger.  Our talk jeopardizes the legitimacy of the court. 

            When we do the rights talk take, we end up with there being no grounds for distinction between homosexies and heterosexies or discrimination based on nothing.  The Euro decision did not carry implications for employment, housing, adoption, family benefits the way that rights talk does. 

            It is ironic that the European judges have become pragmatic, principled and flexible when these were once the pride of American common law.  Cardozo and John Marshall Harlan would be unhappy. 

            Courts know about our decisions and we do not know about theirs.  To some degree our reticence comes from prudent unwillingness to render ourselves vulnerable to institutions heavily staffed by critics of America.  Anthony Lester predicted that the once-great American legal influence abroad will gradually diminish unless we relinquish our isolationist stance.  Our ideas about rights, however, that have had the greatest influence abroad are not those which are currently predominant in our rights talk. 

            P. 160 Time magazine in a bicentennial issue called our Constitution “a gift to all nations because some 160 of the then 170 countries had written charters modeled directly or indirectly on ours.  More than half of all existing constitutions were adopted since the mid-1970s.  They are overwhelmingly parliamentary.  The feature that gets the most attention is the enumeration of rights and the independent judiciary empowered to back them up. 

            The values given constitutional status since WW II have included social as well as individual rights.  The formulation of these are more nuanced than our DOI or B of R.  Many rights are viewed as inseparable from responsibilities, liberty and equality are seen as coordinated and fraternity gets its day in court too.  Personal values are regarded as higher than social ones, but also as being rooted in them. 

            Most foreign judiciaries have shied from allowing courts to rule on constitutional questions.  Many use a tribunal for such issues.  And these are more circumspect than our courts.

            Much of our judicial activism is attributed to a historical time when confidence in our state legislatures was low.  We have really moved personal liberties into the foreground.  We are studied here because we are seen to have a lot of experience with this and judicial review.  But, in reality, judicial review was little used until recently.  Where rights pertaining to fair criminal procedure, equal legal treatment, free expression, or privacy are concerned, the US Court has only a slightly longer experience than a great number of other nations. 

            P. 164 In 1982 Canada’s constitution was “patriated” from the UK and amended to include a bill of rights.  It had to decide an abortion case much like Roe V. Wade right away.  It recognized that the grounds being used were those of American precedent.  But it said, we are not going to let the American’s define the debate for us. They left the parliament in charge.  Their decision left a lot of latitude for the legislature and it has not been revisited since.  The only justice that relied on the American vision in her opinion was impatient to remind the legislature of the court’s power and the legislature’s limits.

            The differences in interpretation history were necessary due to the differences in culture.  Canada being more elitist, communitarian, statist and group oriented than the US. 

            The Canadian constitution recognizes limits on rights, group rights, but not property rights. 

            P 168 In Europe our influence is mitigated by knowledge of us being second hand through scholars.  And our interpreters tend to be advocates for individual rights and insensitive to context in a way that doesn’t make sense to others.  Our case study with 200 years behind it is also very complicated to digest. 

            Still our scholarship helps other countries to think better about their own problems.  It would be good if we availed ourselves of their experience. 




            P. 171 Our simple rights talk contributes to the erosion of the habits, practices and attitudes of respect for others that are the ultimate and surest guarantors of human rights.  It impedes our creative long-range thinking.  It accommodates the economic, immediate and personal but neglects the moral, long-term and social implications. 

            Rights talk is turning our discourse into a parody of itself and killing the idea of compromise.  This individual desire based egoism is in direct contrast to the purposes set up in the preamble.  Refining the discourse of rights will not help our vacuous, hard-edged and inflexible discourse.  We hope this talk is not a mirror of our actual society.   If not, what tools in society can we use to rescue ourselves.  Here she speaks of Bellah’s “first language” of individualism.  Self-expression and self-glorification have replaced self-reliance and self-discipline.  Lasch says we have lost the patriotic, biblical and folkloric legends that once provided young people with ideals towards which they might grow. 

            We still, however, tend to live and work in communities and have table talk and family histories.  Traditionally women have taken the lead in transmitting family lore and educating children.  Feminist vocabularies of caretaking are important here.  We should discourage exaggeration absolutes and litigation.  Many judges take context and the understanding that neither side is 100% right into account.  Immigrant groups are also a source of different thinking like the native Americans who were hippie stewards of nature.  The biblical language of stewardship helps too.  This is better than a “right” to a healthy  environment. 

            P. 176 The greatest hope for renewal perhaps lies in the American political tradition itself.  Properly understood liberalism has a moral core and assumes community.  We should think of the social costs of rights and what effects a given right can be expected to have on the setting.  Our very heterogeneity that makes us go for abstract sources of unity can help us. 

            But would a dynamic leader bring this message to us?  New media works against this idea.  Those who are most powerful are often those least tied into tangible community.  Mill warned of the soft tyranny of the stupid majority.  The “labor beat” has disappeared from American newspapers.   There is a growing gap between those who work in America and those who report on it. 

            We need not only public discourse, but the conditions for public deliberation.  Leaders must provide models of discussion?  Information, forums, facts and places where interests and interests can be exchanged.  We need political platforms that attract folks and not the clashing of unyielding interests in irreconcilable conflict.  We need to respect each other.  We need civility. 

            Havel wondered at the energy and commitment of youth who knew nothing of political liberties and discourse.  We always strive for higher and recovered our humanistic and democratic traditions that were transmitted though dormant through civic associations.  They involved young people in calling “good and evil by name.”  We have more of a civic tradition and so should be able to connect with this dormant spirit. 

            The Supreme Court seems to be loosening up the reigns on legislatures and local control.  People are starting to rebel against the idea that morals and religious talk don’t belong in public discourse. 

            Perhaps some can, like Dr. King, help us to bridge our gaps and disagree without losing mutual respect.  Our diversity and opportunities for experimentation our society allows may prove fertile ground for renewal.