by Sonu Bedi. New York: Cambridge University Press, 2009. 220pp. Hardback. $81.00/£45.00. ISBN: 9780521518284. Paperback. $29.99/£15.99. ISBN: 9780521732154. eBook format. $24.00. ISBN: 9780511501319.
Reviewed by Beau Breslin, Department of Government, Skidmore College, bbreslin [at] skidmore.edu.
Readers of The Chronicle of Higher Education, Inside Higher Ed, and other similar publications will attest to the growing frequency of articles that take direct aim at the contemporary professoriate. It seems we are doing a lousy job in so many areas of the academy. Just a few months ago The New York Times echoed such criticism when it ran a piece by Mark C. Taylor – a member of the Religion Department at Columbia – entitled the “End of the University as We Know It.” In the article, Taylor bemoans the ways in which we now run our colleges and universities. He talks about the exploitation of part-time instructors, the irresponsible use of graduate students, and the archaic allegiance to disciplinary divisions and identities. Yet he reserves his harshest condemnation for faculty who are increasingly asking insignificant intellectual questions and pursuing “ever-increasingly specialized” scholarly agendas. “As departments fragment,” he remarks, “research and publications become more and more about less and less.”
Mark C. Taylor clearly has not read Sonu Bedi’s new book, REJECTING RIGHTS, a provocative and accessibly written monograph that asks one of the most fundamental questions facing any student of normative legal and political thought: are individual rights really worth preserving? That’s right, Bedi has placed individual rights and liberties directly in his crosshairs in an attempt to ask whether Americans are better off pursuing a course that rejects rights and, in their stead, sets clear expectations and standards for political institutions to satisfactorily “justify” any infringements of our freedom. The book is interesting and even playful in its prose; its greatest virtue, though, is its capacity to make us think about the often-unquestioned dominance of rights in contemporary American culture. This is no insignificant line of inquiry.
The book is divided into three parts and eight chapters, each intended to build an unapologetically normative argument about the way in which America’s liberal-democracy can ensure meaningful limited government. In Part I Bedi describes the “conventional” method for constraining the power of majorities. He says that, although some theories and arguments might fiddle with the margins, all current positions use the language of rights as the principal means of combating public authority. America’s model of limited democracy, in other words, relies on the idea that individual rights will control self-interested and reckless majorities. For Bedi, the conventional reliance on rights cannot guarantee limited government. He draws on contemporary debates heavily infused with rights – including debates about abortion, same-sex [*518] marriage, sexual privacy, and the like – to suggest that the typical use of rights to control state action has not been all that successful. In fact, Bedi believes that such a conventional account is antithetical to the vision of a robust democratic polity. The predominance of rights, he insists, “entail no genuine role for democracy. By its very terms, the classical account of rights has no necessary relationship to a positively expressed democratic common good” (pp.8-9). Classical rights theorists like Locke, Nozick, Rawls, and Dworkin, as well as “reflexive rights theorists” like Habermas, Michelman, and Benhabib inevitably underrate the importance of democratic decision making when compared to the force of rights.
Bedi begins to build his retort to the conventional account in Part II of the book. He believes that a more effective path to genuine limited government is to reject the standard role of rights and, instead, embrace a “theory of Justification” whereby public policy is only defensible or legitimate if it seeks to “minimize (mitigate, prevent, regulate, etc.) demonstrable, non-consensual harm” (p.60). There is, in short, only one justification for any state action (minimizing demonstrable, non-consensual harm), and thus government must provide a rationale for its actions based on that single principle. Bedi’s “theory of Justification” allows for the rejection of rights because it insists on a mechanism to ensure that government rationalizes all that it does. The limitation of public authority presumably comes from the simplicity and singularity of the plan: if all agree that the only legitimate state action does no demonstrable, non-consensual harm (and institutions actually live by that one rule), minorities need not worry about abuses by an oppressive majority.
He is, of course, not the only intellectual to endorse a theory of justification. Chapter 3 – the first chapter in Part II – offers a critique of liberal theorists who propose, in Bedi’s opinion, rather weak versions of such a theory. Bedi contends that no liberal theorist offers a compelling theory of justification. Ackerman doesn’t, Habermas doesn’t, and neither does Rawls. Michael Oakeshott comes close, though. His conception of the civil condition in ON HUMAN CONDUCT sketches the framework for a persuasive theory of justification – one that downplays rights and still constrains majoritarian impulses – and yet he, too, does not go as far as Bedi imagines. Bedi argues that these theories, while probably better in some sense than the conventional rights-based accounts, still do not effectively “balance the values of liberty and democracy” (p.60). In Chapters 4 and 5, he tries to correct the defects of these liberal theories by offering his own, alternative vision.
To this point in the book, the argument can be characterized as primarily theoretical and almost exclusively normative. Bedi makes a series of intellectual moves, all intended to convince the reader that a Bedian theory of Justification is both more sound than the theories that have come before and more capable of delivering on the promises of liberty, equality, and democracy. In Part III, Bedi introduces a new, empirical dimension. Here, he attempts to argue that “contemporary constitutional law has moved in the direction of [his] theory of Justification, turning away from the core rights of the [*519] private sphere: property, religion, and intimacy” (p.10). In other words, the author will now try to convince the reader that, at least within the federal judiciary, his theory of Justification actually has some traction.
Citing Supreme Court cases in the areas of property, religion, and sexual intimacy, Bedi insists that the Court has rejected the very rights on which these freedoms rest. Take the establishment and free exercise of religion cases as an example. Bedi argues that in all but a handful of cases over the past several decades, the Court has refused to provide special or “unique” protection for religious freedom. In case after case – GOLDMAN v. WEINBERGER (1986), EMPLOYMENT DIVISION v. SMITH (1990), CITY OF BOERNE v. FLORES (1997), and so on – the Court has refused to acknowledge any special protection for religious liberty. Consistent with his theory of Justification, he writes, “the Court appropriately [has] turn[ed] away from a focus on the religious observer and her right to religion, looking instead to the democratic polity’s reason for enacting the regulation” (p.131). Religion, he argues, “is like any other association, group, or preference deserving no more and no less protection” (p.131). The Court is rejecting rights, at least in the areas of property, religion, and intimacy, and that, according to Sonu Bedi, is both wise and exciting.
In the last significant chapter of the book (there is a one-page conclusion at the end), Bedi endeavors to adapt his normative theory of Justification to legal questions that are less about individual freedom and more about equality. He spends most of the chapter investigating what he describes as “the Court’s perverse equal protection logic” (p.166), especially as it applies to affirmative action. For many scholars of law and courts, his central argument – that courts should abandon the tiered approach to judicial scrutiny in the equal protection arena and adopt a single test based on a credible application of rational review – will seem familiar. John Paul Stevens, of course, has argued for such an approach at various points in his career. It is interesting, however, to imagine how such an interpretive standard dovetails with Bedi’s overall theory of Justification. If the basis for the theory is the expectation that political institutions have to constantly justify their decisions as rational or reasonable, a single interpretive test that asks precisely that question makes a good deal of sense.
If the measure of a good book is its capacity to foster different ways of thinking about familiar problems, Sonu Bedi’s REJECTING RIGHTS succeeds admirably. The very notion of rejecting rights as the primary means to facilitate greater degrees of freedom and democracy is provocative and counterintuitive. It is also deeply refreshing. Bedi does not try to tackle too many issues in this book, and the result is a lean, well-written, lively piece of scholarship. The book was a joy to read. Its greatest virtue is perhaps its ability to move important, though sometimes stale, conversations about rights and the authority of government in fun new directions.
The problem with REJECTING RIGHTS is that I am not sure the argument is as successful as the questions are fundamental. The author [*520] makes a few assumptions about the actual administration of his theory that are unconvincing. Relatedly, he uses his case studies to draw somewhat tenuous conclusions about the judiciary’s overall attitude. For example, he is essentially asking judges to engage in the type of jurisprudence that smacks of substantive due process. In his words: “we need simply proclaim that the law is irrational, arbitrary, even ridiculous” (p.1). Later, he writes, “the Court need not appeal to rights or suspect classes/classifications to ensure liberty. It should turn its complete attention to legislative purpose” (p.123; emphasis his). That may not be theoretically alarming (after all, courts evaluate the substance and purpose of laws all the time), but it will not be easy to get the institutions of American politics – especially the courts – to fully embrace such an interpretive strategy, especially when they must do so in every single case involving individual rights, equality, and democracy.
Similarly, I am not convinced we can always measure “demonstrable, non-consensual harm.” Laws often impose a demonstrable harm on individuals or groups in order to prevent an even greater perceived harm to others. In hindsight it is clear that the internment of Japanese Americans during World War II was criminal. Even still, it is a good illustration of the difficulty here. Few would disagree that interning a portion of the population against its will constitutes a “demonstrable, non-consensual harm.” And yet, at the time, Justice Black and a majority of the jurists on the U.S. Supreme Court endorsed that policy under the assumption that national security was at stake. The problem is a temporal one. Policy-makers and judges are often willing to allow a demonstrable harm in the present so as to prevent the possibility of what they convince themselves is an even greater harm later. Sometimes the harm comes to pass and sometimes it doesn’t, and yet that uncertainty does not prevent politicians and judges from making the calculation. Unless we can manage the temporal problem, I suspect it will be hard for Bedi’s theory of Justification to get off the ground.
The book spawns other questions, some of which may derail parts of the normative project. A few that come to mind: Can a group of political institutions as complex as those in the United States rely solely on questions of rationality when there is no dominant conception of the good to guide them? Is the rejection of rights a repudiation of the founding principles embedded in the Declaration of Independence? What about those rights that are enumerated in the original, unamended constitutional text? Do we reject them as well? And what does that mean for the constitutional document itself? Can we make claims about the direction of the Court’s jurisprudence – in Bedi’s estimation towards his theory of Justification – from three areas of the law (property, religion, and intimacy)? How about when one of those areas – intimacy – is heavily (though not entirely) dependent on only two cases (BOWERS v. HARDWICK  and LAWRENCE v. TEXAS )? Is rejecting rights throwing the baby out with the bath water?
I view the fact that these (and many other) questions emerge from this work as stimulating. Sonu Bedi has done [*521] students of legal and constitutional theory a rare service: he has managed to say something fresh and provocative. What is more, he has confronted important, fundamental questions about the nature of liberty and democracy in America and he has forced us to do the same. Assuming we accept his invitation, we may just have some ammunition for Professor Taylor.
Oakeshott, Michael. 1975. ON HUMAN CONDUCT. New York: Oxford University Press.
Taylor, Mark C. 2009. “End of the University as We Know It.” THE NEW YORK TIMES, April 27, 2009.
BOWERS v. HARDWICK, 478 U.S. 186 (1986).
CITY OF BOERNE v. FLORES, 521 U.S. 507 (1997).
GOLDMAN v. WEINBERGER, 475 U.S. 503 (1986).
EMPLOYMENT DIVISION v. SMITH, 494 U.S. 872 (1990).
LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
© Copyright 2009 by the author, Beau Breslin.