Record: Robin West, “A Tale of Two Rights.” Boston University Law Review, 94 (2014): 903-912. [Abstract]
Summary: Are individual rights a danger to societal aspirations for equality, community, and democracy? This is the question that West, a Professor of Law and Philosophy at Georgetown University, attempts to answer in this article.
Critics argue that individual rights may compromise the equality of others and cause democratic processes (including those that promote equality) to be seen as a source of oppression from which individuals must be protected. West hopes to complicate these familiar critiques by discussing two kinds of rights (rights to exit and rights to enter) and their effects on society.
A right to exit is a right to opt out of some central public or civic project. For example, people have the right to opt out of public education (through homeschooling), publicly funded policing (through self-defense laws), civil rights commitments (for certain religious groups), and public health projects (by receiving exceptions to insurance laws). West discusses “opting out” of publicly funded policing through the Second Amendment and self-defense laws at length, but I will summarize them briefly. Essentially, self-defense laws (resulting from District of Columbia v. Heller, 2008) have allowed people to opt out of the publicly funded police force. The more pertinent example that West discusses is the right to exit public education. While we do not have a well-articulated constitutional right to a high quality public education, homeschool advocates have won the right to pull their children out of public education. West describes this by saying, “The homeschooling community, or at least the best organized part of it, seeks quite explicitly to exit this intergenerational social compact, by which one generation funds the education of the next in the interest of building a strong civil society” (p. 901). While these rights to exit that West has discussed may appear to fall along Republican interests, in reality, today’s exit right paradigm originated with some liberal cases. Specifically, pregnant women can exit their pregnancies through an abortion, and dying people can, to some degree, choose to exit their lives. The consequence of the increasing importance of exit rights is that instead of maintaining the aspiration of e pluribus unum (from many come one), we are building a country of e pluribus pluribus (from many come many). Instead of building a core educational curriculum required to meet the needs of all children, for example, we are allowed to homeschool and work towards individualized goals like entrance into the Kingdom of God.
A right to enter allows individuals to enter an aspect of civil society in a way that they previously could not. Namely, in this category there are a host of anti-discrimination laws that protect individual rights on the basis of race, sex, disability, etc. For example, there are laws passed after the fall of slavery that protect the rights to own property, write a will, and enjoy public accommodations and transportation. After the Civil Rights Movement, we gained the rights to nondiscriminatory education and employment opportunities. In the modern era, rights to enter include same-sex marriage, the right to be protected against domestic violence, and the right to not be deprived from a job due to caregiving responsibilities. A defining characteristic of these rights to enter is that we cannot enforce them without the government’s help, supporting laws, and the institutions of civil society. For example, the majority of people would not acquire a quality education without protective laws, educational institutions, and administrative bodies that regulate the quality of education and compliance with the laws.
So, in summary, West believes that rights to exit society are a threat to the American way of life but that rights to enter society are an essential part of it. Naturally, the danger of the rights to exit depend on how many individuals exercise their rights. For instance, if many healthy people opted out of the Affordable Care Act, it would be unsustainable. She concludes by saying that we should work to define the content and boundaries of our civil rights to a high quality public education, decent jobs, and health care.
Appraisal: Personally, I did not find West’s argument against exit rights to be particularly convincing due to her use of hypotheticals as her counterarguments. For example, she says that our reliance on exit rights is threatening e pluribus unum; however, has the United States ever been completely faithful to its motto? Should it be? Since West demonstrates that Republicans are nowadays primarily concerned with rights to exit (i.e. religious exemptions to health care laws), and Democrats are more focused on rights to enter (i.e. affordable healthcare and college education for all), the article comes off as extremely partisan. While rights to exit and enter are an interesting way to frame the political divide that has taken hold of the United States, West focuses on explaining the differences between the two types of rights instead of supporting her position that individual rights to exit are dangerous to society.
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