THE AUTHORITY TO BE FAIR
The parents of the child with autism in Hartford, Connecticut, were convinced that he should be in a classroom with other students. He had shown a tendency to be violent at an early age, but by 2002, when in the seventh grade, he was unusually large and increasingly prone to violence. He began attacking other students without provocation. He kicked the teacher and, a few days later, punched her in the face. The school told the parents that he had to be removed to an environment where he couldn’t injure others. Asserting their legal rights under federal law, they refused. His conduct got worse. He bragged about hitting the teacher, and started throwing furniture. The sense of urgency increased. “It is very difficult to control him while he is throwing furniture,” the teacher’s report stated. “He is a grave danger to other children, paraprofessionals and teachers.”
The class practiced evacuation drills so that they could move quickly when the attacks started. But no one at the school had the authority to send him to a special education setting where there was more control. Under federal law, the school had to institute formal legal proceedings and receive a formal order from the judge. The parents, heedless of the terror felt by the other students, demanded that their child stay put. The teacher took a leave of absence. After almost two years, with legal hearings and thousands of dollars of formal expense, the school finally received the final order in the spring of 2004 that the child was unsuited to be in the classroom with other students.
Fairness is an important goal for Americans. But what happened in this incident doesn’t bear much resemblance to fairness. Disruption is by definition abusive, even if at the hands of someone who can’t help himself. But no one in the school had the authority to weigh the needs of the individual against those of the rest of the school community—at least not without drawn-out legal proceedings. What was involved was a matter of individual rights.
Rights, we’ve been taught, are the ultimate tool of a free society—a guarantee of fairness. This conception of rights, as noted, is an innovation of the 1960s; people didn’t used to go around talking about their rights in schools and jobs. When America took off the blinders of neglect, it saw that disabled children were ignored or locked away in awful institutions. Rights worked to break down barriers of segregation. Why not use rights to guarantee fairness in social services? In 1975 Congress passed the original special education law (now called the Individuals with Disabilities Education Act [IDEA]), giving each child with disabilities the right to “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child.”
Rights seemed like a magic solution. Congress and the courts could be heroes, simply by tapping people with the rights wand. Not much federal money needed to be allocated (Congress currently funds less than 20 percent of special ed costs). No enforcement mechanism was generally required. That’s the main feature of a right: People can enforce it themselves.
A veritable cornucopia of these new rights overflowed out of Washington in the years following the 1960s. In addition to rights for special education, Congress passed laws giving rights for “equal access” to the disabled. The Supreme Court held that public employees had the right to due process if they lost their jobs, and students had the right to due process for ordinary discipline. Civil rights laws were expanded to encompass discrimination on the basis of age, sexual orientation, religion, gender, marital status, and national origin. These new rights embodied a change in social values that was overdue. But giving unilateral power to the rights bearer to call officials onto the legal carpet has proved counterproductive on many levels.
It’s hard to object to anything labeled as “rights.” Moral authority counts for a lot, and these modern rights arise out of genuine grievances—racism, sexism, and neglect of the disabled. Imagine yourself in a debate: Are you against rights for the disabled?
But isn’t it curious, as Yale law professor Akhil Amar observes, that these modern rights are usually asserted in someone’s own interest? The new rights give power to people to demand something from other free citizens. The rights our founders gave us, by contrast, were defensive in nature; they prevented people in government from doing things to you, like taking your home away.
A fairer society was the goal. By handing out rights, there would be no need to rely on the good faith of anyone in authority. Did it work? After a few decades of experience under this new regime of rights, the pluses and minuses are pretty apparent. With special education, on the plus side, students with disabilities now have programs and personnel that are focused on learning disabilities of all types. This is an enormous achievement, not to be underestimated or removed. As I discuss below, however, other countries show similar levels of service without making them a matter of individual rights.
But the dark side of these new rights is also apparent. The first and most obvious is that other students are being hurt. What about their rights? The episode with the seventh grader in Hartford is unusual only in degree. Talk to almost any principal or teacher, and you will hear stories of special ed students who regularly disrupt the learning in the classroom.
Zealous special ed parents can themselves wreak havoc by pushing what they view as their rights. In a school district outside Houston, by the time a student with autism was eight years old, the parent had brought eight due process hearings objecting to the child’s placement. After compromising with the parent several times, the school stood firm on its recommendations; that hearing cost the school district more than $100,000. After the parent lost, she tried home-schooling the child, but then announced that she was returning him to the school. The school’s speech therapist resigned immediately. The first-grade teacher from the prior year—one of the school’s best and most experienced—also announced her resignation, rather than be in the same school with that child and his parent. Her class with that student had the lowest reading scores of any she had taught—perhaps attributable to the twenty-two full days she had spent away from the class in meetings and due process hearings.
In 2004 Congress tried to give school officials more authority to deal with disruptive special ed students. But under the logic of rights, sending disorderly students out of the room wouldn’t be fair if the disorderly acts were a “manifestation” of the disability—as they usually are, for example, with students with autism. “It would be unconscionable to have a national policy to allow kids to be punished,” one advocate for the disabled asserted, “when the disability is something out of their control.” So under the revised law, schools still go through formal hearings to get a violent student removed. In 2008, in another Houston school, the third-grade class practiced evacuation drills for the times when the student with autism lost control.
Involuntary violence in the classroom and bullying parents are only the most dramatic of the unintended consequences of special education law. Special ed constantly skews daily choices. Special education always comes to the head of the line—for the budget, for the principal’s hours in the day, even for what gets taught. Deb White, a science teacher in Cody, Wyoming, was effectively ordered to dumb down her curriculum. “I had twelve students in my ninth-grade physical science class, but three had learning disabilities,” Deb said, “and I was told those three students had to be able to keep up with the work. So I had to teach, in effect, a sixth-grade course. What does that do to the other kids’ preparedness for advanced science?” Her husband, Bob White, also a science teacher, couldn’t take his class on a nature hike because one student in a wheelchair wasn’t able to go.
It is a nice trait of the American character, observed by Tocqueville, that we want everyone to have the same opportunities as others: “No novelty in the United States struck me more vividly during my stay there than the equality of conditions.” But the reality, as Tocqueville also observed, is that people are very different. Some are born with disadvantages that can’t be overcome, no matter how hard we try. Kurt Vonnegut once wrote a short story, “Harrison Bergeron,” about a society that guaranteed everyone was equal. Those who were athletic had to wear weights; those smarter than average had radio receivers in their ears to blare harsh sounds when the brain became too active. Vonnegut’s absurd society is separated from ours only by the element of parody. Ours too has the effect of pulling everyone down toward the level of the least able—where one student’s disability waters down the curriculum, or disrupts the learning of the entire class.
Rights have the appearance of drawing clear legal boundaries—after all, rights certainly establish who’s supposed to win. But rights don’t have a limiting principle. Rights give a sword to one group to wander onto the field of freedom and, in the case of special education, to demand whatever they can imagine would be best for their child. You and I would do the same for our children. But there’s no budget, and no line that says enough’s enough. Law is supposed to provide knowable obligations, not give one group a blank check. “The new rhetoric of rights is less about human dignity and freedom,” Professor Mary Ann Glendon observes in Rights Talk, “than about insistent, unending desires.”
The power of labeling a legal protection a “right” is astounding. Few have the nerve to talk about the unfairness to other students, except under their breaths. Most people seem to accept the resulting tyranny as the natural order. The plight of the teachers trying to create a learning environment is virtually ignored: “It’s unfortunate the [teachers and aides] had to experience all this,” said an advocate for the disabled about the furniture-throwing student in Hartford, “but it’s something you should be fully aware of before you enter the profession.” Only one thing matters in the current state of things: Students “have rights, and those rights need to be protected.”
Modern rights are not a tool of freedom, however. They are a form of tyranny, albeit well intentioned. By allowing some citizens to wield coercive power over others for their own benefit, modern rights repudiate a core precept of freedom. “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others,” John Stuart Mill explained. “His own good . . . is not a sufficient warrant.” The validity of enforcing a right, according to philosopher Joseph Raz, hinges on whether by “protecting the right of that individual one protects the common good.” Modern rights do the opposite. They allow the rights holder to assert state power for his own benefit, often to the disadvantage of the common good.
Rights sit high on the altar of American values. But the modern version of rights, like safety, is only half an idea. “American liberals are great,” the French writer Romain Gary observed. “They’ve got a sense of injustice bigger than anyone else, but not much of a sense of justice.” It is impossible to achieve justice in any communal activity by looking at the rights of one person without considering the effects on others. Justice Brandeis tried to warn us:
Experience should teach us to be most on our guard to protect liberty when Government’s purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
This is not a stable situation. People don’t like being coerced. A backlash is inevitable. We must come up with another way of caring for people with special needs.
FAIRNESS THROUGH BALANCE, NOT RIGHTS
Fairness isn’t this hard, or at least getting in the zone of what most people would consider fair. Let’s go back to John Rawls’s “veil of ignorance,” where you choose what’s fair while not knowing your situation in life—for example, whether you were the parents of the autistic child or the parents of one of the other children in the class.
What would you do? Perhaps the school could try allowing the autistic child to stay in the classroom. Who knows? Maybe it will work wonders. Maybe the other children will learn patience and develop an appreciation for the problems faced by others. After one violent incident, however, and certainly after two, someone should have the authority to make the obvious decision to put the disabled child back in special care. It’s not fair, I believe most people would conclude, to sacrifice the learning of all the other students for the special needs of one.
But we can’t make those choices today. There’s one factor implicit in Rawls’s formulation that’s missing in the vocabulary of rights: the balancing of different interests. Rights don’t allow balancing, at least not in the sense of considering different interests. It’s everything for the rights holder, and everyone else gets whatever’s left over. This is a serious impediment to the quest for fairness.
Balance is at the heart of almost every conception of the good society, from antiquity to the present. Aristotle’s golden mean was the balance between “excess” and “defect”: “Excellence, then, is a state concerned with choice, lying in a mean . . . determined by reason and in the way in which the man of practical wisdom would determine it.” Every communal activity requires balance. Legislatures must balance demands from every segment of society. Teachers must balance the needs of different students. Doctors conduct triage to balance the predicament of different patients waiting for help. Judges, as we discussed in the next chapter, must balance the predicament of the victim against the needs of a free society. Look up at the symbol of Justice. There she sits, eyes blindfolded to prevent partiality, sword raised to show authority—and holding scales that are in perfect balance. Fairness is basically impossible without balance.
But how do we achieve balance? Balancing almost by definition is not a job for a machine or an objective formula. Legislatures weigh different considerations when passing laws, including the need for flexibility in implementation. For daily activities, balancing requires human judgment on the spot. The teacher has thirty students to worry about, and the principal has several hundred. They have multiple goals, including caring for special needs students, but also goals equally important, such as teaching the other students and maintaining order. Constant balancing is required. “The more societies become complex, the more difficult it is for morality to operate as a purely automatic mechanism,” sociologist Emile Durkheim observed. “Circumstances are never the same, and as a result the rules of morality require intelligence in their application.”
All roads lead to human judgment. Someone must have authority to make these balancing judgments. The officials doing the balancing should be accountable, of course, and important decisions can be second-guessed. But these balancing judgments can’t be dictated in advance. Nor can they be “proved” in some objective way, as discussed later. Balancing, and the second guessing of balancing, always boils down to judgment of the particular person with that responsibility.
Fairness requires giving someone the job of balancing the needs of different interests. That’s how it works in countries that have successful programs for caring for disabled children. In Denmark, for example, the goal is a free education for all students, including those with special needs. The head of the school has the responsibility to make placement decisions, including whether a student needs special classes or schooling. The headmaster must consult with the parents and a psychological expert, who often ends up mediating any dispute, but the final decision is still the headmaster’s. Headmasters do not tolerate students who are violent, for example, because that would not be fair to other students. Parents can complain up the line to municipal authorities and, for students with severe disabilities, to a national board. But there are no trial-type proceedings. A senior government official in this area said that he had heard of only two court cases about special needs students in his entire career.
Nor is there any particular budget allocation in Denmark for special needs students; the municipality must provide these services out of its general school budget. This reflects a pointed policy goal in Denmark that the municipality must always be in the position of balancing the needs of all students. If the parents want to send the child to a special private school, they must usually pay the difference.
This is not perfect, of course. The parents or loved ones would always like the state to provide more. But on balance, people think the system works fairly. There’s nothing very mysterious about it. If you or I were making it up, this is probably how we’d do it, with the possible exception that U.S. schools may need a specific budget allocation so that disabled students are assured of getting their fair share.
Giving someone responsibility to balance different interests is not exactly a novel idea. So why do we continue to tolerate the bullying of legal rights? What keeps us from restoring balance is not the effectiveness of this regime of rights—the disruption caused by special education rights is hard to avoid—but distrust of authority.
Americans can’t stand the idea of people making decisions that affect other people. Giving someone authority to make balancing choices is almost unthinkable. Who knows what prejudices lurk inside someone’s soul? We live in a diverse culture and, we’re told, one person’s values of right and wrong should not be imposed on someone else. We want automatic fairness.
Now we’ve come full circle. Fairness requires balancing, which requires human judgment. But the main point of rights is that they avoid the need for human judgment. Rights are automatic (or so we think). Rights are our antidote to unfairness by those in authority. Our official values were certainly unfair in numerous respects, as we discovered in the 1960s. But the cure for bad values is to demand good values. Trying to solve the problem by handing out rights doesn’t guarantee fairness—it just pushes the needle to the other extreme, guaranteeing unfairness to the common good.
RETHINKING AUTHORITY
No one wants to return to the old days, when our treatment of the disabled and mentally ill could be best described as out of sight, out of mind. My father suffered from bipolar depression, and when I was a teenager, he was institutionalized at the Eastern State Hospital, a mental institution in Kentucky. By the time Ken Kesey’s One Flew over the Cuckoo’s Nest was published, the scenes were already familiar to me from my visits to Eastern State—the dead look in my father’s eyes after shock treatments, the screaming people wandering around in semi-squalid conditions. We now, thankfully, have a different sense of our responsibilities.
The alternative to absolute rights is not absolute discretion. Humans have a bad tendency to see their options as black or white. Authority structures can be far more nuanced than that. Legislatures can establish clear public goals. They can give officials the responsibility to achieve those goals, balancing the needs of all constituencies. They can provide funding. They can give other officials oversight responsibility, including for accountability. But meeting these goals still requires judgment on the spot—deciding, for example, whether a student is too violent to be mainstreamed.
Authority is one of those subjects, like risk, that people just don’t like to talk about. But in any joint enterprise decisions have to be made. These decisions are not generated by a miracle machine that guarantees wisdom and fairness, but by people—ordinary mortals—who have that responsibility. I know this is bad news. Even worse, as Lord Hoffmann explained, those choices by those in authority are essential to our freedom. If the judges don’t draw the boundaries of reasonable risk as a matter of law, then pretty soon legal fear undermines our freedom. Lakes and rivers close down to public access. Fairness is similarly impossible without the authority to balance different interests.
Inevitably, people will make mistakes, or worse. Some judges will be unwise; some teachers will be unfair; some managers will be mean-spirited. When that happens, they can be held accountable up the chain of authority. But people will also make good judgments. George Washington cautioned against trying to control decisions by officials too much. “No man is a warmer advocate for proper restraints,” Washington wrote, “but I have never been able to discover the propriety of placing it . . . out of the power of men to render essential services, because a possibility remains of their doing ill.”
Common sense has an uphill battle here, however. Values trump facts, and distrust of authority is a core value of our culture. Americans believe that freedom means protecting people against authority. This is one place our political parties come together, competing to create structures that effectively prevent anyone in authority from making decisions.
Liberals focus on the predicament of the individual and believe that individual rights are the best guarantor of fairness—that any individual who feels aggrieved should have the right to invoke law to second-guess decisions by people in authority. As legal philosopher Ronald Dworkin puts it, “‘Balanced’ is a code for ‘denied’” because the result hinges on decisions by “those in power.”
Conservative ideology is explicitly based on distrust of official authority. Ronald Reagan said that “we know from experience that the 10 most frightening words in the English language are ‘I’m from the Federal Government, and I’m here to help.’” If there has to be regulation, then make rules as detailed as possible; conservatives certainly don’t want government officials to be free to use judgment. Conservatives see red when they think of judges drawing on their values. That’s “judicial activism.” Judges should apply the law mechanically.
The distrust of authority by liberals and conservatives started at opposite ends of the spectrum, with liberals distrusting business and conservatives distrusting government. But that distinction has blurred with time. Legal shackles are now a reflexive reaction to anyone with authority.
In truth, America has never figured out the relationship between authority and freedom. Throughout the history of our country, Americans have believed that authority is the enemy of freedom. The first try of our founders, the Articles of Confederation, failed for lack of authority. The second try, the Constitution, gave us a national government and individual protections against state authority. But the agrarian society of our founders didn’t require much authority beyond the basics of crime, contract, and interstate commerce.
With the Industrial Revolution, society became far more interdependent, and abuses of private power far more dangerous. But our clunky ideology against government authority—the main tenet of laissez-faire—made it impossible to deal with industrial abuse. The Supreme Court in this period, sounding like Emerson, sounded the clarion call of individual freedom:
[A person must be free] to act in such manners not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; that is, to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them to their highest enjoyment.
These declarations about freedom were inspirational—at least if applied to the pioneer farmer or the tradesman setting up his shop. But the Court used this philosophy to strike down duly enacted laws for the safety of workers, ostensibly protecting the freedom of industrial companies. Letting a factory boss mangle workers “as his judgment may dictate for the promotion of his happiness” was perhaps not the freedom that Emerson had in mind.
We now see those high-blown statements about freedom as a cruel joke. The battle for humane working conditions, led by progressives such as Jacob Riis, was almost as difficult as the struggle for civil rights a half century later. The shift, long overdue, required a new legal philosophy.
Freedom could not be defined merely as protection against government authority. People needed protection from business too. Instead of facing up to the link between authority and freedom, we created structures that further eroded authority. As the twentieth century progressed, and especially after the rights revolution of the 1960s, freedom was redefined as protections against all authority, public or private. Constitutional protections such as due process, designed to protect against state power, now applied to ordinary interaction in schools and in the workplace. Anyone could challenge almost any decision.
Both the philosophy of laissez-faire and the philosophy of individual rights were cast as protections against authority. Laissez-faire, ostensibly protecting against government, led to a tyranny of the factory bosses. Individual rights, ostensibly protecting against all authority, led to a tyranny of the angry individual. Freedom was the casualty both times.
Authority is not the enemy of freedom, but its protector. Law is not supposed to be a sword against authority. Law is supposed to define the scope of proper authority. It does this by asserting authority to draw the boundaries that define the area of our freedom. Authority can certainly be abused, but ceding authority to people without common responsibility is a formula for abuse.
RESTORING AUTHORITY AND THE COMMON GOOD
Deb White, the science teacher in Cody, Wyoming, is not the kind of person who gives up easily. For fun, she takes her family camping in the nearby national forest, which happens to be a grizzly bear preserve. But, she told me, “the legalistic mind-set wears you down. . . . Recently I had a student who turned in a project late, and I took ten percent off. I then spent twenty days arguing with his father over whether I could take off points because it was late.” Asked what the legal basis was of the father’s argument, Deb said, “I can’t even imagine. This is a project they’ve been working on in class for six weeks. They knew the penalty for a late paper. But there’s this idea nowadays that any negative outcome must violate your rights.”
The school administrator wasn’t helpful. “He was kind of tiptoeing around so as to make no one angry, acting like a referee.” Deb eventually gave up. “Why should I go to bed upset every night? Sure it’s unfair to the other kids who somehow managed to get the work done. Sure it’s a bad lesson in how to get your way. But life’s too short. I said, ‘Fine, I’ll give him the points back.’ Just give them what they want.”
The rights revolution has descended pretty far since the glory days of tearing down the walls of segregation. Now teachers can’t change a grade for a late paper. This is not an aberration. Sociologist Richard Arum found that almost 50 percent of teachers believed that they didn’t have authority to change grades based on classroom deportment. No such legal rule in fact exists. But it doesn’t matter. Rights have taken a life of their own.
Rights now exist because people believe they exist. Most people would be hard pressed to tell you what exactly these rights are. The new rights are amorphous, a kind of a catchall for protections against unfair authority. People assume that there’s a right to due process on almost any decision that affects anyone—in the classroom, on the playing fields, in the workplace, you name it. Students regularly accuse teachers of violating their rights. This belief in legal rights, mainly unfounded, has become its own reality. Rights are everywhere.
Digging ourselves out of this rut is impossible without a radical change in approach. The rights have spawned a class of zealots, who assert their rights like fire-breathing dragons. Without a higher authority to protect us, we shrivel up. The only solution is to abandon the mechanism of rights altogether for daily activities. Deb White and her school principal need the authority to listen to the angry parent and then to say, politely but firmly: “Those are the rules.” End of discussion. If the father followed through with his threat of suing, the judge should not only dismiss the case promptly but charge the father with all the school’s costs (including the wasted time by educators).
Restoring the authority to balance changes the dynamics of public choice radically. Instead of asserting rights, the claimant must make his argument on the basis of what’s reasonable. Instead of making escalating demands, the parent or other advocate now has to frame the discussion in terms of the effect on everyone else. People compete on the basis of reasonableness, not legal threats. The strident vocabulary of entitlement is replaced by one of balance and accommodation. The argument gravitates toward the center. If some parent persists in arguing that he’s entitled to something, all that’s needed is to kick it up the line to the person in charge of resolving disagreements. That’s what authority is for.
Rights should be put back on the constitutional altar where they came from—basically, civil liberties such as free speech, property rights, or protection from systemic discrimination. Those rights do not require people to act at the insistence of the rights bearer or interfere with the balancing judgments needed to run a school or other enterprise.
It’s hard for a society to shift gears, and changes in basic approach normally can’t be done with too much subtlety. Rights rhetoric should basically be banned from daily disputes. What’s required to put this genie back in its bottle is as simple as it is revolutionary: Restore the authority of people with responsibility to make judgments that strive toward balance. These judgments will be accountable, not by legal rights asserted by whoever is unhappy, but by judgments of others up the line.
1. Rewrite statutes to restore balancing authority. Statutes that provide services or accommodations, such as special education laws, should be amended so that disagreements are resolved by officials who have that responsibility, not resolved as a matter of rights in legal hearings. A busy principal or supervisor can hardly take the time to prepare for litigation, with documents, witnesses, and emotional rancor. Moreover, as discussed later, decisions like these are matters of judgment, not proof. Just the threat of a proceeding, as with the angry father in Deb White’s class, is enough to make a principal cave in. Educators and officials must have the authority to act as our surrogates in making common choices.
2. Abandon the due process model for social services. The Supreme Court must do its part to remedy this overflow of rights. All the superstitions about due process in schools and public institutions need to be rejected in no uncertain terms. The Court has already moved in this direction by watering down the due process rulings. Now it needs to take the last essential step toward clarity and confirm that daily choices in schools have no constitutional overlay. Schools henceforth will be accountable by decisions of duly elected officials or their nominees, not in lawsuits.
I don’t want to understate the difficulty of making this shift. Heaven help the political leader who steps out front on this problem. No group wants to give up its rights. Zealots will chain themselves to front doors and scream injustice when we try to restore balance instead of unlimited rights. Perhaps you and I too would feel this way if we shared their predicament. But the overpowering sense of entitlement doesn’t make it right. Democracy aspires to balance, not zealotry.
Every culture, wittingly or unwittingly, has a public philosophy, a frame of reference by which people relate to each other. Many among us probably think that the last half of the twentieth century will go down in history as the Age of Individual Rights, or some such high-minded name. There are certainly heroes who’ll get credit for breaking the bondage of racism and gender discrimination. But those triumphs may be tarnished if, in the name of rights, we lose our ability to raise healthy children or run our schools. Just as the defenders of laissez-faire hoped to be remembered as defenders of freedom, but ended up being remembered as apologists for industrial abuse, so too the age of individual rights may be remembered as a period of bullying by using law.
Our governing philosophy is not, in truth, fairly characterized as one of individual rights, except in a mutant version that removes our freedom to act. Our governing philosophy is to strive for the lowest common denominator—a belief that society will somehow achieve equilibrium if it placates whoever is complaining. Our monocular focus on the individual, like our obsession to eliminate risk, makes it impossible to achieve any of our stated goals, including fairness.
The rights revolution was doomed from the start. It didn’t account for a truth of human nature—that people are wired to be self-centered. “The power of self-interest,” Reinhold Niebuhr argued, colors all human activity. As Niebuhr put it, “reason is always . . . the servant of interest.” Our founders understood this well. “[S]ince man was an unchangeable creature of self interest,” historian Richard Hofstadter observed, our founders “would not . . . leave anything to his capacity for restraint.” That’s why they created a government structure that in various ways could be insulated from the passions of what they called faction. Modern rights, by giving legal powers to some groups over others, basically institutionalize faction. The effect, predictably, is to draw out the worst of human nature. Give me, give me more.
Nor did the rights revolution account for the essential truth of public choices—that legitimate interests in society always conflict. “Liberty for the wolves,” as philosopher Isaiah Berlin put it, “is death to the lambs.” These conflicts cannot be resolved by an automatic system of rights and duties. They require constant choices, taking into account scarce resources and other circumstances.
The decline in social responsibility couldn’t have come at a worse time. We live in an age of unavoidable interdependence. Our interdependence demands not an atomized view of individual rights but a greater sense of social accommodation. We’re all in it together. Health care, schools, the environment, to name three, are effectively joint goods. Every dollar wasted on unnecessary health care is a dollar not available to someone who needs it. Every hour spent by a teacher in a dispute with a parent is an hour not available for preparing or teaching. Modern society cannot fulfill all its responsibilities if its citizens are grabbing all they can.
The selfish tendencies of a rights regime are exacerbated in an anonymous society, which lacks the restraining influence of small community. In the 1980s the communitarian movement, led by sociologist Amitai Etzioni, tried to encourage a greater sense of ownership in our common choices. Sociologist Benjamin Barber now organizes a worldwide “Interdependence Day” on September 11 each year. But there’s something missing that relegates communitarians to being a chorus of do-gooders. Communitarians don’t have a developed theory of authority. People will always make selfish demands on common resources, for the reasons stated by Niebuhr, unless there’s a mechanism that draws the line on behalf of all society.
Moving the needle back to the center—generally the goal of good public policy—requires restoring the authority for balancing. Perhaps nowhere is this authority for balancing more important than in drawing the boundaries of lawsuits, which is what we discuss next.