The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.
It is both gratifying and disheartening to be asked to comment on my now twenty-five-year-old Article, From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights. It is gratifying to think that the thesis of that Article remains worth discussing a quarter of a century later, but disheartening to realize how little effect it has had on the academic debate.
The thesis of the Article is that there are two different ways of understanding the nature of fundamental legal rights—the “classical conception” and the “contemporary conception”—and that fundamental rights serve their purpose of protecting individual autonomy against state interference only when understood under the classical conception. The classical conception views fundamental rights as absolute option rights—rights that empower individuals to make choices free from state interference that are not subject to being overridden by other moral interests. Such rights to non-interference do not conflict with each other and are possessed only by individual human beings. The contemporary conception views fundamental rights as prima facie protections for important underlying moral interests. Such rights may be both option rights and welfare rights, may come into conflict with one another, and may be possessed by individuals, groups, and even animals.
For fundamental rights to serve their purpose, they must restrain the state’s authority to interfere with individuals’ conduct. Under the classical conception, fundamental rights do this by carving out spheres of autonomy in which individuals are entitled to act free of state control. In contrast, under the contemporary conception, fundamental rights do this only in cases in which there is no conflict of rights. For when rights conflict, the state is authorized to resolve the conflict, which it does on the basis of the same utilitarian standard it employs when there are no rights at stake. In such cases, the rights essentially “drop out” of consideration. Under the contemporary conception, as the number of fundamental rights increases, so does the number of cases in which rights conflict, and hence, so does the number of cases in which the rights drop out. Thus, the more fundamental rights one has, the less effectively they restrain state power. And thus, for fundamental legal rights to fulfill their role in a liberal society, they must be understood as and limited to absolute option rights that protect individual autonomy.
My argument for a classical liberal understanding of fundamental rights has, of course, not carried the day. As a result, much of contemporary political disputation devolves into a battle of rights with one side claiming to be protected by an option right while the other side claims that its welfare right overrides that protection, and vice versa. Each side then appeals to the state to resolve the conflict of rights, which it does (theoretically) on a utilitarian basis, or (more realistically) on the basis of whatever underlying moral interest is favored by the politically dominant group.
I illustrated this problem twenty-five years ago by noting that under the contemporary conception of rights, a student at a public university who was a member of the KKK could have a fundamental right (derived from the First Amendment) to express his or her belief in the genetic superiority of white people at the same time that an African American student had a fundamental right (derived from the Fourteenth Amendment) to an educational environment free of racial discrimination and harassment. This would mean that the first student’s option-right to freedom of expression would conflict with the second’s welfare-right to a non-discriminatory educational environment. The state would then be authorized to resolve the conflict of rights, which would empower it to determine which of the underlying interests—freedom of expression or freedom from discrimination—is more important. But this means that the right to freedom of expression no longer functions as a restraint on state power.
This scenario is now playing out at universities across the nation. Students’ right to freedom of expression is confronted by other students’ right to an educational environment free of hate speech or from intimidating, hostile, or offensive conduct by others. This leaves it to the university administration (which in public institutions is a governmental agent) to resolve the conflict on the basis of which of the underlying values—freedom of expression or freedom from offensive conduct—it believes to be more important. But this is precisely the ground on which such a question would be resolved if there were no right to freedom of expression (and no right to freedom from offensive discriminatory conduct) in the first place.
Just last December, my hypothetical became a real case when a student at Georgia Southern University exercised his right to freedom of speech to present a defense of white supremacy as a class assignment, which was deemed to be inconsistent with the university’s commitment to inclusion and diversity. In that case, the university came down on the side of the right to freedom of expression. But such is not always the case. Last year, a professor at Emory Law was removed from the classroom and is facing termination for using the “n-word” in discussing a case in which the conduct giving rise to the lawsuit being discussed involved the use of the “n-word.”
The purpose of fundamental rights is to remove certain areas of human conduct from the democratic collective decision-making process; that is, to remove it from the power struggle of democratic politics. The classical conception of rights, which treats them as absolute protections of individual autonomy that cannot be overridden by other more important moral values, does precisely this. A fundamental right to freedom of expression would prevent the state from interfering with protected speech regardless of the other moral interests that would be served by doing so.
In contrast, the contemporary conception of rights treats rights as protections for underlying moral interests, which allows for conflicts among rights that must be adjudicated by the state. This renders them subject to precisely the democratic power struggle that they were designed to circumvent. Under the contemporary conception, a fundamental right to freedom of expression would permit the state to interfere with protected speech whenever those presently in control of the political apparatus believed other important moral interests—such as an inclusive academic environment—would be served by doing so.
I’m afraid that the observation that fundamental rights can serve their purpose only when understood under the classical conception is as true today as it was twenty-five years ago.
John Hasnas, J.D., PhD., LLM., Professor of Ethics, McDonough School of Business, Georgetown University and Professor of Law (by courtesy) at Georgetown Law Center.