Rethinking Rights Beyond Absolutism Towards Pluralistic Justice

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A Trivium-Based Analysis of Justice, Governance, and Pluralism

GRAMMAR: DEFINING THE CURRENT CRISIS IN RIGHTS DISCOURSE

In contemporary society, the concept of rights has become a dominant frame through which we understand justice, freedom, and power. Rights are invoked in debates over healthcare, education, gun ownership, voting, bodily autonomy, and more. However, the way rights are currently understood—particularly in the American legal and political system—has fostered division, legal absolutism, and moral gridlock.

Core Definitions and Their Evolution

Rights Absolutism: The treatment of rights as binary, non-negotiable entitlements that override all competing interests once recognized. This absolutist conception can be traced to the Enlightenment's reaction against arbitrary power, but has evolved far beyond its original intent.

When we speak of rights absolutism, we are describing a phenomenon where recognized rights function as what Ronald Dworkin termed "trumps"—overriding considerations that nullify competing values, no matter how compelling. For example, in contemporary discourse, one might hear that "my right to bear arms shall not be infringed" or "my right to bodily autonomy is absolute." These statements frame rights as binary—either fully protected or fully denied—with no space for contextual application or balancing of competing goods.

Judicial Monopoly on Rights: A system where courts, rather than democratic institutions, are the primary arbitrators of which rights exist and how they are applied. This monopoly represents a profound shift from the founders' vision of rights as politically negotiated guardrails.

The judicial monopoly manifests in the practice of constitutional courts having final say on rights interpretation. When the U.S. Supreme Court rules on whether a right to privacy encompasses abortion (as in Roe v. Wade and later Dobbs v. Jackson), or whether campaign finance regulations violate free speech (as in Citizens United), these decisions often end political conversation rather than facilitate it. This creates what Robert Cover called "jurispathic" effects—courts killing off competing normative understandings rather than allowing them to coexist within a pluralistic framework.

Scarcity Logic of Rights: The belief that rights are limited in number and scope, leading to competition between groups to have their values and interests validated as rights.

This logic operates on the false premise that rights recognition functions like a zero-sum game. When one group gains recognition for their rights, another group perceives a loss. This creates what Mary Ann Glendon called "rights talk"—a discourse that emphasizes individual entitlements over community well-being and mutual obligation. Under scarcity logic, rights become a kind of positional good—valued not only for their intrinsic benefits but for the status and power they confer relative to others.

These foundational assumptions distort the purpose of rights and limit our capacity to pursue justice through inclusive, democratic means.

The Historical Evolution of Rights Discourse

The concept of rights has undergone profound transformations through history. In ancient societies, what we might call "rights" were typically understood as proper ordering within a cosmic hierarchy. Cicero spoke of natural law, but not individual entitlements against the collective. The Magna Carta established limits on royal power, but these were primarily conceived as protecting the prerogatives of nobility, not universal human entitlements.

The modern notion of individual rights emerged more clearly during the Enlightenment, particularly through the work of philosophers like John Locke. In his Second Treatise of Government (1689), Locke articulated a vision of natural rights to "life, liberty, and property" that existed prior to government and could not be legitimately violated by political authority. This represented a radical inversion of previous thinking—rather than deriving rights from duty to a sovereign, rights became the foundation upon which legitimate governance must be built.

Thomas Hobbes, in his Leviathan (1651), presented a different view. While acknowledging natural rights, Hobbes argued that in the "state of nature" (an ungoverned condition), life would be "solitary, poor, nasty, brutish, and short." His solution was a social contract in which individuals surrender certain freedoms to a sovereign authority in exchange for security. This tension between Lockean natural rights and Hobbesian social contract created an enduring dialectic in rights theory.

Jean-Jacques Rousseau further complicated the picture in The Social Contract (1762), arguing that rights were neither wholly natural nor simply surrendered, but transformed through collective self-governance. Under his conception of the "general will," freedom was not opposed to authority but realized through participation in creating the laws that govern society.

These philosophical foundations profoundly influenced the architects of constitutional government during the American and French Revolutions. The early vision of rights in the American system was not one of individualistic trumps but of tools for self-governing communities. The Bill of Rights was intended primarily to limit centralized authority and protect local political processes. As James Madison explained in Federalist No. 51, the constitutional structure was designed so that "ambition must be made to counteract ambition"—creating a system of balanced powers rather than absolute entitlements.

Rights during this founding period were embedded in majoritarian social institutions—although deeply flawed by their exclusivity toward white male property-holders. Women, enslaved people, and many others were excluded from the rights-bearing community. This profound contradiction between universal language and exclusive practice would drive much of the subsequent evolution of rights discourse.

The Judicial Turn in Rights Protection

As society expanded its moral circle to include historically marginalized groups, courts became the primary vehicle for extending rights. This shift from political recognition to judicial enforcement created a rights landscape dominated by legal abstraction rather than civic deliberation.

The trajectory of this shift is visible in the evolution of equal protection jurisprudence in the United States. In the infamous Dred Scott v. Sandford (1857) decision, the Supreme Court denied the very possibility of Black citizenship. Following the Civil War, the Fourteenth Amendment established equal protection under law, but the Supreme Court severely limited its application in cases like Plessy v. Ferguson (1896), which sanctioned racial segregation.

It was not until Brown v. Board of Education (1954) that the Court began to fulfill the promise of equal protection. While Brown represented a moral advance in recognizing the dignity and rights of Black Americans, it also cemented the Court's role as the ultimate arbiter of which rights exist and how they apply. Subsequent movements for women's rights, LGBTQ+ rights, and disability rights increasingly focused their strategy on litigation rather than democratic persuasion.

This judicial turn was accelerated by the development of what's known as "incorporation doctrine," which applied the Bill of Rights to state governments through the Fourteenth Amendment. Prior to incorporation, rights constraints primarily limited federal power, leaving substantial autonomy to states and localities. The incorporation process, while extending important protections, also shifted the site of rights negotiation from democratic bodies to judicial chambers.

The legal philosopher Jeremy Waldron has critiqued this development as the "circumstances of disagreement." In pluralistic societies, Waldron notes, citizens inevitably disagree about the content and application of rights. When courts become the primary arbiters of these disagreements, we lose the opportunity for democratic working-through of moral conflicts. Instead, contested questions are settled through the interpretation of abstract legal texts by elite jurists.

This does not mean that judicial review has no place in rights protection. Courts play a critical role in protecting minorities from majoritarian overreach. However, the near-monopoly of courts over rights discourse has diminished other democratic mechanisms for rights recognition and balancing.

LOGIC: SYSTEMIC CONSEQUENCES AND CONTRADICTIONS

The Feedback Loops of Absolutist Rights Culture

When rights are seen as absolute and zero-sum, every policy dispute becomes a moral battlefield. This fosters several interlocking dynamics:

Binary Thinking: Complex, pluralistic social issues are reduced to winner-take-all outcomes. If one party is a rights-holder, the other must lose entirely. This binary framing makes compromise appear not just difficult but morally suspect.

Consider the debate over religious exemptions to non-discrimination laws. When framed in absolutist terms, either religious business owners have an absolute right to refuse service based on their beliefs, or LGBTQ+ individuals have an absolute right to equal service in all contexts. The possibility of contextual solutions—such as exemptions for small businesses with personal religious objections while requiring larger businesses to serve all customers—becomes difficult to even discuss.

This binary thinking appears rational to participants because of what psychologists call "moral conviction"—the feeling that certain issues are not merely preferences but fundamental moral truths. When an issue becomes morally sacralized, compromise feels like betrayal of core values.

Political Paralysis: Because compromise becomes morally suspect, political systems stall in resolving critical issues like reproductive health, education equity, and pandemic responses.

Political scientist E.E. Schattschneider observed that "the definition of alternatives is the supreme instrument of power." When rights absolutism defines alternatives as binary—either full recognition or complete denial—it removes the middle path of negotiated solutions. This leads to what Charles Lindblom called "the science of muddling through"—governments unable to make coherent policy, instead producing inconsistent, patchwork approaches to complex problems.

The COVID-19 pandemic illustrated this paralysis. Debates over mask mandates and vaccination requirements were often framed as absolute rights conflicts—either an absolute right to public health measures or an absolute right to bodily autonomy. This framing made it difficult to develop nuanced, context-sensitive policies that could adapt to changing circumstances.

Social Fragmentation: Groups feel either fully validated or entirely erased by the courts, leading to cycles of resentment, mobilization, and polarization.

When the Supreme Court ruled in Obergefell v. Hodges (2015) that same-sex couples have a constitutional right to marry, many LGBTQ+ Americans felt their dignity and equality finally recognized. Simultaneously, some religious conservatives experienced this as a rejection of their moral worldview. Rather than seeing the decision as balancing competing values, both sides perceived it through a binary lens—as either complete victory or total defeat.

This winner-take-all perception creates what political scientists call "moral solidarity"—the binding together of groups around shared moral grievances. The losing side feels not just politically defeated but morally delegitimized, creating powerful incentives for counter-mobilization. This dynamic helps explain the polarization cycle in American politics, where court decisions intended to resolve conflicts often intensify them instead.

Institutional Incentives and Public Choice Theory

Legal and political actors behave rationally within the rules of the system. If the courts are the only venue where rights are recognized and enforced, then advocacy groups focus their resources on litigation rather than coalition-building. This aligns with Public Choice Theory, which examines how institutional design shapes the incentives and behaviors of political agents.

Public Choice Theory emerged in the mid-20th century through the work of economists like James Buchanan and Gordon Tullock. Their key insight was to apply economic analysis to political decision-making, viewing politicians, bureaucrats, and voters as rational actors pursuing their self-interest within institutional constraints. When applied to rights discourse, this theory helps explain why various stakeholders adopt strategies that collectively produce suboptimal outcomes.

Consider how advocacy organizations allocate resources. If courts are the primary enforcers of rights, rational groups will invest heavily in legal strategies rather than grassroots organizing or legislative lobbying. The NAACP's focus on litigation strategy in the early civil rights movement exemplifies this approach. While cases like Brown v. Board were crucial victories, they also reinforced the primacy of courts in rights recognition, further shifting resources toward legal rather than political advocacy.

This judicial monopoly also encourages strategic framing. Actors redefine their policy preferences as "rights claims" to gain judicial protection. This creates what legal scholar Martha Minow calls the "rights lottery"—groups compete to have their interests recognized as constitutionally protected rights, which offers stronger protection than ordinary political victories. Once a policy preference gains the status of a "right," it becomes more resistant to democratic reconsideration.

Interest Group Dynamics and Rights Claims

According to Mancur Olson's classic work on collective action, small groups with concentrated interests tend to organize more effectively than large groups with diffuse interests. In the context of rights litigation, well-funded, focused interest groups can mobilize resources to frame their preferences as rights, potentially overwhelming broader but less organized public interests.

For example, the gun rights movement successfully reframed the Second Amendment as protecting an individual right to bear arms rather than a collective right tied to militia service. This strategic reframing, backed by concentrated advocacy resources, transformed constitutional interpretation despite significant public support for gun regulations.

This pattern reflects what political scientist Frank Baumgartner calls "policy punctuation"—long periods of stability interrupted by sudden shifts when advocacy reaches a tipping point. The judicial focus of rights advocacy makes these punctuations particularly disruptive, as court decisions can rapidly reshape policy landscapes with limited democratic input.

Economic and Moral Externalities

The consequences extend beyond law into economic and moral realms, creating structures that systematically advantage certain groups in rights recognition.

The Cantillon Effect was named after 18th-century economist Richard Cantillon, who observed that when new money enters an economy, those closest to the source receive it first and benefit most. In modern economic theory, this describes how the sequential distribution of resources affects inequality—those with early access can use resources to gain positional advantages before prices adjust.

When applied to rights discourse, we can observe a parallel phenomenon. Those with early access to rights recognition—historically privileged groups with greater access to legal resources—can use those rights to secure additional advantages before the system adjusts. For example, freedom of speech was enshrined as a constitutional right long before many Americans could meaningfully exercise it. Those who already held social power could leverage speech protections to reinforce their position, while marginalized groups faced both legal and extra-legal suppression of their expression.

The Cantillon Effect in rights creates what political philosopher Judith Shklar called "the liberalism of fear"—a system that formally protects rights but fails to address the substantive conditions that make rights meaningful. When elite litigants or well-funded advocacy groups are better positioned to frame and argue their rights, the recognition of rights follows power and access, not justice.

Chartalism and Modern Monetary Theory (MMT) provide another useful parallel. These economic frameworks emphasize that governments that issue their own currency do not face hard financial constraints, only real-resource constraints. Similarly, societies are not inherently limited in the number of rights they can recognize and balance—they are only constrained by political imagination and institutional design.

Just as MMT argues that money is a public utility created by government, not a naturally scarce resource, rights are socially constructed tools for managing human relations, not pre-existing entities with inherent limitations. The perceived scarcity of rights is, in many ways, a choice rather than a necessity. We could design systems that recognize multiple rights simultaneously, adjusting their application contextually rather than assuming that rights must conflict in zero-sum ways.

Moral Externalities of Rights Absolutism

Economist Ronald Coase observed that in the absence of transaction costs, parties would negotiate efficient solutions to externality problems regardless of initial rights assignments. However, rights absolutism creates enormous "moral transaction costs" that prevent such negotiations. When claims are framed as non-negotiable moral entitlements rather than competing interests, the social cost of compromise becomes prohibitively high.

This helps explain why issues like abortion remain intractable in American politics. Both sides perceive moral costs to compromise that far outweigh potential benefits, creating what game theorists call a "social dilemma"—a situation where individually rational choices produce collectively irrational outcomes.

Moreover, rights absolutism generates what philosopher Bernard Williams termed "moral luck"—arbitrary factors determine whether your moral views will be validated as rights. Born in the right era, with the right demographic characteristics, in the right jurisdiction, your deeply held convictions might be recognized as rights; otherwise, they remain merely personal beliefs. This arbitrariness undermines the perceived legitimacy of the system among those whose values are not recognized.

RHETORIC: CIVIC AND ETHICAL REASONING

John Adams' Moral Algorithm

"Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men."

John Adams' statement reflects what philosophers call "consequentialist" ethics—judging systems by their outcomes rather than their procedures. Under consequentialism, a just system produces good consequences for those affected by it. Adams specifically identifies the "common good" as the proper aim of government, contrasting it with the "private interest" of individuals or classes.

Current rights discourse often fails this test. It privatizes justice by locating rights in individual entitlement rather than community well-being. When courts deny equal funding to poor schools or rule on abortion without acknowledging either women's autonomy or fetal life, they elevate procedural form over substantive justice.

The philosopher Michael Sandel has termed this "procedural liberalism"—a focus on neutral processes rather than substantive outcomes. Procedural liberalism attempts to remain neutral between competing conceptions of the good life, but in practice often reinforces existing power structures. When courts interpret rights through procedural frameworks divorced from substantive outcomes, they may technically protect formal equality while permitting material inequality to flourish.

For example, in San Antonio Independent School District v. Rodriguez (1973), the Supreme Court ruled that education is not a fundamental right under the U.S. Constitution, allowing property tax-based school funding to continue despite producing dramatic inequalities. The Court's reasoning focused on procedural questions about federalism and judicial role rather than the substantive consequences for children's life opportunities.

Similarly, in Dobbs v. Jackson Women's Health Organization (2022), the Court overturned Roe v. Wade, focusing on whether abortion rights were "deeply rooted in this Nation's history and tradition" rather than grappling with the complex moral questions of women's autonomy and fetal life. This procedural approach fails to address the substantive question of what configuration of rights and responsibilities would best serve the common good in a pluralistic society with deeply held, conflicting moral views.

Adams' emphasis on the "common good" suggests a different approach—one that evaluates rights claims based on their contribution to collective flourishing rather than abstract procedural correctness. This doesn't mean ignoring individual rights, but rather understanding them in relation to community well-being and mutual obligation.

John Rawls' Veil of Ignorance

"Principles of justice should be chosen as if one does not know their place in society."

John Rawls' "veil of ignorance" thought experiment asks us to imagine designing principles of justice without knowing our personal characteristics—gender, race, class, abilities, etc. This "original position" forces impartiality by removing self-interest from moral reasoning.

Rawls developed this concept in his landmark work A Theory of Justice (1971), which represented an attempt to reconcile individual liberty with social equality. The veil of ignorance is a procedural device for generating principles that are fair because they are chosen without knowing how they would affect one personally. Behind this veil, Rawls argued, rational people would choose two principles:

1. Equal basic liberties for all citizens
2. Social and economic inequalities arranged to benefit the least advantaged (the "difference principle")

Under Rawlsian ethics, the current system appears unjust on multiple fronts:

If you didn't know whether you'd be rich or poor, you would not endorse unequal education funding. Behind the veil of ignorance, rational actors would insist on educational systems that provide quality education regardless of socioeconomic status. Contemporary school funding, tied to local property taxes, fails this test by perpetuating inter-generational inequality.

If you didn't know your gender or reproductive capacity, you wouldn't support abortion laws that ignore women's autonomy or that fail to provide social support for childrearing. Rawlsian reasoning suggests a comprehensive approach that recognizes both reproductive autonomy and the social responsibility to support families and children.

If you didn't know your physical abilities, you would favor accessible healthcare and disability accommodations. Not knowing whether you might need such accommodations, rational self-interest would lead to supporting strong accessibility requirements and universal healthcare.

Rawls' approach highlights how current rights frameworks often reflect and reinforce existing power structures rather than transcending them. Rights should not be designed to favor the already-powerful. Justice demands a framework built for fairness across all possible social positions.

Critiques of Rawls

While powerful, Rawls' approach has faced significant criticism. Communitarians like Michael Sandel and Charles Taylor argue that the veil of ignorance strips away the very identities and attachments that give moral reasoning its substance. We can't meaningfully evaluate justice without considering the particular communities and traditions that shape our values.

Feminist philosophers like Martha Nussbaum and Susan Moller Okin have noted that Rawls' original conception paid insufficient attention to family structures and caregiving relationships, assuming a public/private distinction that obscures important sites of justice and injustice.

These critiques suggest that while the veil of ignorance offers a valuable impartiality check, it must be complemented by attention to particular contexts and relationships. Rights frameworks must navigate between universal principles and particular circumstances, not simply abstract from the latter.

Aristotle's Virtue Ethics

Law and policy should cultivate virtue and encourage flourishing (eudaimonia) in both individuals and communities.

Aristotle's approach to ethics differs fundamentally from modern rights frameworks. Rather than focusing on abstract rules or utilitarian calculations, Aristotle centered his ethics on the development of character and the cultivation of virtues necessary for human flourishing.

In his Nicomachean Ethics, Aristotle defined virtue as a mean between excess and deficiency—courage is the mean between recklessness and cowardice, for example. Virtues are not innate but developed through practice and habituation within communities that model and reinforce them.

When applied to contemporary rights discourse, Aristotelian virtue ethics offers a different lens for evaluation. Rather than asking only whether rights are correctly identified and enforced, we might ask how rights frameworks shape character and civic relations.

When rights are litigated in zero-sum, adversarial terms:

They encourage hubris in victory and resentment in loss. Court decisions that completely validate one moral perspective while dismissing another foster what Greeks called "hubris"—excessive pride or self-confidence. Victorious groups may develop a sense of moral superiority rather than recognizing the legitimate concerns of others. Defeated groups experience not just political loss but moral delegitimization, fostering resentment and undermining social cohesion.

They inhibit civic deliberation by transferring responsibility to legal elites. Citizens become passive recipients of rights determinations rather than active participants in working through difficult moral questions. This undermines what Aristotle considered essential civic virtues—practical wisdom (phronesis), justice (dikaiosyne), and moderation (sophrosyne).

They promote passivity, as citizens wait for courts rather than engage each other in moral reasoning. This creates what Tocqueville called "soft despotism"—a condition where formal rights exist but citizens lack the habits of association and deliberation necessary to give those rights meaningful content.

A system that balances rights claims through dialogic, flexible, and morally grounded reasoning encourages virtues of deliberation, humility, compassion, and courage. It treats citizens as moral agents capable of navigating complex ethical terrain, not merely as rights-bearers awaiting judicial validation.

Kantian Deontology: Dignity and Autonomy

Immanuel Kant's moral philosophy provides another crucial perspective on rights. Kant's categorical imperative—to act only according to that maxim by which you can at the same time will that it should become a universal law—grounds ethics in universal principles rather than outcomes or virtues.

For Kant, human dignity derives from rational autonomy—our capacity to give ourselves moral laws and act according to them. This autonomy generates what Kant called "perfect duties"—absolute prohibitions against treating persons merely as means to an end. We must always respect the humanity in others, recognizing them as ends in themselves.

Applied to rights discourse, Kantian ethics suggests that rights should protect human dignity by ensuring that no person is treated merely as an instrument for others' purposes. This provides a powerful foundation for certain absolute rights—prohibitions against torture, slavery, and genocide, for example, which can never be justified regardless of consequences.

However, Kantian absolutism faces challenges in cases of conflicting rights. When multiple persons assert dignity-based claims that cannot be simultaneously satisfied, how do we adjudicate between them? Kant's framework offers limited guidance for such conflicts, potentially reinforcing rather than resolving rights absolutism.

Mill's Harm Principle: Limiting Liberty

John Stuart Mill's On Liberty offers yet another ethical framework relevant to rights discourse. Mill's "harm principle" states that "the 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." This principle aims to maximize liberty while providing a clear boundary—harm to others—that justifies its limitation.

Mill's approach offers a more flexible framework than Kantian deontology, allowing contextual balancing of rights based on potential harms. However, it raises difficult questions about what constitutes "harm"—physical injury? Emotional distress? Offense to moral sensibilities?

Contemporary rights debates often invoke competing conceptions of harm. Pro-life advocates cite harm to fetuses, while pro-choice advocates cite harm to women denied reproductive autonomy. Free speech absolutists minimize the harm of offensive expression, while others emphasize the psychological and social harms of hate speech.

Mill's framework doesn't resolve these conflicts but suggests that rights limitations should be proportional to demonstrable harm rather than based on mere preference or offense. This offers a potential middle path between rights absolutism and complete relativism.

Care Ethics: Relationships and Context

Developed by feminist philosophers like Carol Gilligan and Nel Noddings, care ethics shifts focus from abstract rights to concrete relationships and responsibilities. Rather than asking what principles apply universally, care ethics asks what responsibilities arise from particular relationships and contexts.

Care ethics emphasizes that human flourishing depends not only on autonomy but on networks of care and support. We are not self-sufficient rights-bearers but interdependent beings whose well-being depends on quality relationships. This perspective highlights how rights discourse often obscures care relationships that sustain human life.

For example, abortion debates framed solely in terms of competing rights (maternal autonomy versus fetal life) ignore the relational context in which pregnancies occur and the networks of care necessary for child-rearing. A care ethics approach would address not only legal rights but social responsibilities—ensuring that women have the support necessary to make meaningful reproductive choices and that children have the care they need to flourish.

Applied more broadly, care ethics suggests that rights should be understood contextually, attending to particular relationships and vulnerabilities rather than applying abstract principles universally. This doesn't eliminate rights but embeds them in networks of care and responsibility.

Deliberative Democracy: Habermas and Beyond

Jürgen Habermas's theory of communicative action offers a procedural approach to resolving normative conflicts through inclusive, rational dialogue. For Habermas, legitimate norms emerge not from abstract principles but from actual communication among affected parties under conditions of equality and freedom from coercion.

Habermas distinguishes between strategic action (aimed at achieving predetermined goals) and communicative action (aimed at reaching mutual understanding). Rights discourse often devolves into strategic action, with groups manipulating legal language to advance pre-established interests rather than engaging in genuine dialogue.

A deliberative approach would create forums for affected parties to articulate their concerns, challenge each other's assumptions, and work toward mutually acceptable solutions. This doesn't require consensus on fundamental values—what Rawls called "comprehensive doctrines"—but rather an "overlapping consensus" on specific issues despite broader disagreement.

In practice, deliberative processes like citizens' assemblies, deliberative polls, and consensus conferences have demonstrated that ordinary citizens can engage complex moral issues with nuance and creativity when given appropriate information and forums. These processes often generate solutions that transcend the binary options presented in traditional rights discourse.

SYSTEMIC ALTERNATIVES: COURTS AS BOUNDARY-SETTERS

Rethinking the Role of Judges

Judges should not function as arbiters of absolute truths, but as facilitators of pluralism who define boundaries within which democratic negotiation can unfold.

This boundary-setting approach draws inspiration from what legal scholar Lawrence Lessig calls "constitutional architecture"—designing rules and institutions that structure public debate rather than dictating its outcomes. Instead of treating rights as binary (either protected absolutely or not at all), courts would establish minimum thresholds of protection while leaving space for democratic deliberation about specific applications.

Constitutional Minimalism: Legal philosopher Cass Sunstein advocates for "judicial minimalism"—the practice of deciding cases on narrow grounds that leave maximum space for democratic deliberation. Minimalist decisions resolve the specific dispute at hand without establishing sweeping precedents that foreclose democratic experimentation.

For example, rather than declaring a comprehensive right to healthcare that dictates specific policy choices, minimalist courts might establish a threshold requirement that no person be denied emergency care regardless of ability to pay. This creates a floor of protection while allowing democratic institutions to determine how to structure the broader healthcare system.

Proportionality Review: Common in European constitutional courts, proportionality review asks not whether a right has been violated in binary terms, but whether limitations on rights are proportional to legitimate government interests. This approach recognizes that most rights can be limited under certain circumstances but requires that limitations be necessary, minimally restrictive, and balanced against the importance of the right.

Canadian constitutional jurisprudence exemplifies this approach through the "Oakes test," established in R. v. Oakes (1986). Under this test, rights limitations must:

1. Serve a pressing and substantial objective
2. Be rationally connected to that objective
3. Impair the right no more than necessary
4. Be proportionate in their effects

This framework allows courts to protect rights without absolutism, creating space for contextual balancing rather than winner-take-all outcomes.

Case Study: Education Inequality

Rather than asking whether there is a formal right to equal education, courts can evaluate tangible inequities—facilities, resources, staff quality—and require states to meet a minimum threshold of fairness. This avoids perfectionism while acknowledging injustice.

The South African Constitutional Court demonstrated this approach in Government of the Republic of South Africa v. Grootboom (2000), a case concerning the right to housing. Rather than declaring an absolute right to immediate housing for all citizens, the Court evaluated whether the government's housing program was "reasonable" in addressing the needs of the most vulnerable. This established a meaningful standard of review while preserving democratic discretion over specific implementation.

Applied to education, a boundary-setting approach would establish minimum standards of educational adequacy while allowing democratic processes to determine how to meet those standards. Courts would function as guardrails against extreme inequality rather than designers of educational systems.

This approach recognizes what economist Albert O. Hirschman called "the principle of conservation and mutation of social energy." When direct routes to justice are blocked, energy shifts to alternative paths. By setting boundaries rather than dictating solutions, courts can channel social energy toward democratic problem-solving rather than endless litigation.

Case Study: Reproductive Rights

Instead of denying that competing values exist, courts could adopt balanced frameworks. One model considers both women's autonomy and fetal life, ensuring that rights protection is accompanied by social support structures like childcare, healthcare, and parental leave.

German constitutional law offers an instructive example. In a series of abortion decisions, the German Federal Constitutional Court recognized both the value of fetal life and women's autonomy. Rather than declaring one absolute over the other, the Court established a framework that decriminalizes abortion while affirming a state interest in protecting fetal life through non-punitive means—counseling, social support, and addressing root causes of unwanted pregnancy.

This approach shifts focus from criminal prohibition versus absolute right to the social conditions necessary for reproductive justice. It acknowledges legitimate moral concerns on both sides while seeking practical solutions that respect women's agency and provide substantive support for families and children.

Political theorist Mary Ann Glendon contrasts this approach with American abortion jurisprudence, which initially framed abortion primarily as a negative liberty—freedom from government interference—without corresponding attention to the social supports necessary for meaningful reproductive choice. A boundary-setting approach would protect core reproductive autonomy while allowing democratic deliberation about how best to support families and children.

Case Study: Disability Access

Rather than issuing immediate bans on noncompliance, courts could use tools like "suspension of invalidity": declare the system unjust, but grant governments a transition period to implement solutions. This fosters collaboration, not conflict.

The Canadian Supreme Court has employed this approach in cases where immediate invalidation of laws would create hardship or administrative chaos. In Schachter v. Canada (1992), the Court outlined various remedial options, including delayed declarations of invalidity that give legislatures time to develop compliant policies.

Applied to disability access, this approach recognizes both the fundamental right to equal participation and the practical challenges of retrofitting existing infrastructure. Courts would establish clear accessibility requirements while providing realistic timelines for implementation, encouraging collaborative solutions rather than adversarial enforcement.

This exemplifies what governance scholar Charles Sabel calls "democratic experimentalism"—an approach that combines clear goals with flexibility in implementation, allowing for contextual adaptation and learning from experience. Rather than dictating uniform solutions, courts would establish frameworks within which various approaches could be tested and refined.

These approaches exemplify Elinor Ostrom's Commons Governance—where rules evolve contextually, shaped by affected communities, and maintained through feedback, trust, and accountability.

Ostrom's Commons Governance in Depth

Elinor Ostrom's groundbreaking work on governing common-pool resources (for which she received the 2009 Nobel Prize in Economics) offers powerful insights for rights governance. Studying communities around the world that successfully managed shared resources like fisheries, forests, and irrigation systems, Ostrom identified principles that enable sustainable governance without requiring either top-down state control or pure market mechanisms.

Ostrom's research challenged the influential "tragedy of the commons" theory, which predicted that shared resources would inevitably be overexploited without private ownership or state regulation. Instead, she documented numerous cases where communities developed nuanced rules and monitoring systems that sustainably managed commons for generations.

Key principles from Ostrom's work applicable to rights governance include:

Clearly Defined Boundaries: Successful commons governance requires clear definition of who has access to resources and under what conditions. Applied to rights, this suggests establishing core protections while clearly defining their limits and conditions—avoiding both under-protection and absolutism.

Congruence Between Rules and Local Conditions: Rules governing commons must match local environmental and social conditions. Similarly, rights application should be sensitive to context rather than imposing uniform solutions across diverse communities.

Collective-Choice Arrangements: Those affected by rules should participate in modifying them. Rights frameworks should include mechanisms for affected communities to shape their interpretation and application, rather than imposing elite determinations.

Monitoring: Effective commons governance includes monitoring both resource conditions and user behavior, typically by community members themselves. Rights systems similarly need mechanisms for evaluating whether rights are effectively protected and balanced in practice, not just formally recognized.

Graduated Sanctions: Violations are addressed through graduated penalties rather than immediate severe punishment. Applied to rights, this suggests proportional responses to violations rather than all-or-nothing enforcement.

Conflict-Resolution Mechanisms: Accessible, low-cost means for resolving disputes prevent escalation and adaptation failures. Rights systems need accessible forums for addressing conflicts without requiring expensive litigation.

Minimal Recognition of Rights to Organize: External authorities must recognize community members' right to create their own institutions. Higher-level rights frameworks should respect the autonomy of communities to develop contextual interpretations and applications.

Nested Enterprises: For larger systems, governance activities are organized in multiple layers of nested enterprises. Rights governance similarly requires coordination across levels—from local to national to international—with appropriate authority at each level.

These principles offer a framework for rights governance that balances protection with adaptation, universality with context, and expertise with democratic participation. Rather than treating rights as abstract principles enforced from above, Ostrom's approach embeds them in self-governing communities with appropriate external supports and constraints.

Deliberative Democracy Tools

Beyond court reforms, democratic systems can develop deliberative tools for addressing rights conflicts through inclusive, informed dialogue. Three promising approaches include:

Citizens' Assemblies: Randomly selected citizens deliberate on complex issues with expert input and facilitated discussion. The Irish Citizens' Assembly (2016-2018) successfully addressed divisive issues including abortion and same-sex marriage, producing recommendations that garnered broad public support despite initial polarization.

Citizens' assemblies work by creating what political theorist Jane Mansbridge calls "enclave deliberation"—safe spaces where citizens can explore issues outside partisan frameworks. Random selection ensures demographic diversity, while structured deliberation encourages careful consideration rather than immediate judgment.

Deliberative Polling: Developed by James Fishkin, this method measures opinion changes when citizens engage deeply with issues rather than responding to surface cues. Participants are polled before and after in-depth deliberation with diverse fellow citizens and access to balanced information.

Deliberative polls consistently show that ordinary citizens can develop more nuanced, less polarized views when given opportunities for genuine engagement. For example, deliberative polls on energy policy in Texas showed significant shifts toward support for renewable energy across political lines after participants engaged with balanced information and diverse perspectives.

Consensus Conferences: Originally developed in Denmark, these bring together lay citizens to evaluate complex technological or scientific issues with major social implications. Participants study the issue intensively, question experts, and produce a consensus report for policymakers.

These deliberative tools share key features: they create spaces for citizen engagement beyond interest group advocacy, provide balanced information rather than partisan messaging, and encourage reflection rather than immediate reaction. When applied to rights conflicts, they can generate solutions that respect core values on multiple sides while avoiding zero-sum framings.

CONSTITUTIONAL COMMUNITY AND ETHICAL INFRASTRUCTURE

The Constitution as a Living Social Contract

A constitution earns allegiance not through its sanctity, but through its adaptability to evolving realities. If the legal system permanently marginalizes certain values or communities, it forfeits its moral claim to loyalty.

This view draws on what legal philosopher Jeremy Waldron calls "the dignity of legislation"—the idea that democratic lawmaking, not just judicial interpretation, expresses a community's moral commitments. Constitutions function not only as constraints on majorities but as frameworks for ongoing self-governance, requiring both stability and adaptability.

Constitutional theorist Bruce Ackerman describes this dynamic through his theory of "constitutional moments"—periods of heightened public engagement that generate new constitutional understandings without formal amendment. The New Deal, the Civil Rights Movement, and other transformative periods demonstrate how constitutions evolve through democratic mobilization, not just judicial interpretation.

A resilient constitutional order must meet several conditions to sustain loyalty across diverse communities:

Recognize plural values without demanding unanimity: Constitutional frameworks should acknowledge legitimate moral pluralism—the existence of multiple reasonable conceptions of justice and the good life. Rather than imposing a single comprehensive doctrine, constitutions should create spaces where diverse traditions can coexist while maintaining core commitments to equal citizenship.

Political philosopher John Rawls termed this approach "political liberalism"—focusing on constitutional essentials that can gain support from different comprehensive doctrines without requiring agreement on fundamental philosophical or religious questions. This allows what Rawls called an "overlapping consensus" on basic political values despite deeper disagreement.

Acknowledge that today's minority may be tomorrow's majority: Constitutional design should recognize the inevitable shifts in demographic, cultural, and political power. Systems that permanently entrench certain viewpoints or interests at the expense of others undermine their own legitimacy over time.

James Madison addressed this concern in Federalist No. 43, noting that constitutions must balance stability with responsiveness to "that continual change which characterizes the life cycle of human beings." A constitution that cannot evolve to incorporate evolving understandings of justice will eventually face crisis as excluded perspectives gain moral and political strength.

Empower communities to shape the boundaries and meanings of rights: Rather than treating rights interpretation as an exclusive province of courts, constitutional systems should create multiple avenues for communities to participate in giving content to abstract rights.

Legal scholar Robert Cover described this as "jurisgenesis"—the creation of legal meaning by communities rather than just courts. In Cover's view, courts often function "jurispathically," killing off competing legal interpretations rather than allowing them to coexist and evolve. A healthy constitutional order would foster multiple sites of legal meaning-making while maintaining sufficient coherence for social coordination.

This approach aligns with Civic Republicanism, which sees freedom not as non-interference, but as participation in self-rule. A healthy republic fosters not only individual liberty, but also mutual obligation and shared governance.

Civic Republicanism: Freedom as Non-Domination

Civic Republicanism, with roots in ancient Rome and Renaissance city-states, offers an alternative to both liberal individualism and communitarian collectivism. Contemporary republican theorists like Philip Pettit define freedom not as absence of interference (the liberal view) but as "non-domination"—the absence of arbitrary power over one's life.

Under this conception, rights exist not primarily to shield individuals from collective decisions but to ensure that collective power cannot be exercised arbitrarily or without consideration of affected interests. The goal is not to maximize individual autonomy but to prevent domination—situations where some can exercise unchecked power over others.

This frames rights differently than both liberal individualism and traditional conservatism. Consider free speech: a liberal individualist views speech rights as protecting individual expression regardless of consequences; a traditional conservative might emphasize community standards and moral limits; a civic republican focuses on whether speech enables or undermines equal citizenship and democratic deliberation.

In practice, civic republicanism encourages institutional designs that disperse power and create multiple checks on its exercise. This includes not only formal separation of powers but substantive conditions for equal citizenship—education, economic security, and protection from both public and private domination.

Applied to rights conflicts, this approach focuses on preventing any group from imposing arbitrary power over others' fundamental interests, while recognizing that rights exist within, not against, self-governing communities. It seeks balance between democratic decision-making and protection against majoritarianism when core interests are at stake.

Applying Donella Meadows' Leverage Points

To create a more just and flexible rights culture, we must intervene at deeper levels of the system. Environmental scientist Donella Meadows identified a hierarchy of "leverage points"—places to intervene in complex systems ranked by their effectiveness. These provide a framework for systemic change in rights discourse.

Paradigm Shift: From rights as absolutes to rights as relationships

The deepest leverage point in any system is its paradigm—the shared mindset from which system goals, structures, and behaviors emerge. Shifting from seeing rights as absolute individual entitlements to understanding them as tools for structuring just relationships would transform how rights conflicts are approached.

This paradigm shift doesn't abandon rights protection but contextualizes it within broader commitments to justice, community, and human flourishing. Rights become not ends in themselves but means for creating social conditions where people can develop their capacities and pursue meaningful lives in community with others.

Philosopher Martha Nussbaum's "capabilities approach" exemplifies this shift, focusing on what people are actually able to do and be rather than formal entitlements. This approach asks whether social arrangements enable people to exercise fundamental capabilities—physical health, practical reason, affiliation with others, control over one's environment, and so on. Rights serve these capabilities rather than existing as abstract entitlements.

Goal Adjustment: From winning court cases to fostering civic solidarity

The next leverage point involves the system's goals. When rights advocacy focuses primarily on courtroom victories, it incentivizes adversarial approaches that undermine civic solidarity. Reorienting toward building just communities through multiple means—litigation, legislation, education, organizing—creates space for more collaborative approaches.

This doesn't mean abandoning rights protection but embedding it within broader goals of social transformation. As civil rights lawyer and scholar Lani Guinier argued, court victories without corresponding social movements and political power often prove hollow. Rights advocacy should aim not just at formal recognition but at building the power and connections necessary for substantive implementation.

Information Flow: Democratize the language and access to rights discourse

Systems are shaped by what information flows through them and who controls that flow. Rights discourse has become increasingly technical and professionalized, limiting participation to legal elites. Democratizing this discourse requires making rights language accessible to ordinary citizens and creating forums where diverse voices can participate in interpretation.

This aligns with what Paulo Freire called "critical consciousness"—developing people's capacity to analyze their social reality and act to transform it. Rather than treating rights as technical legal constructs, education and organizing can help communities develop their own understanding of rights and how they relate to lived experiences.

System Rules: Encourage deliberative processes over adversarial ones

The rules that govern how systems operate constitute another key leverage point. Shifting from adversarial to deliberative processes changes how rights conflicts are addressed. This means designing forums where affected parties can engage directly rather than through legal proxies, and where solutions emerge through dialogue rather than zero-sum competition.

Practical examples include restorative justice programs that address harm through community dialogue rather than punitive mechanisms, community benefit agreements that involve affected residents in development decisions, and participatory budgeting that gives citizens direct voice in resource allocation. These approaches build rights considerations into democratic processes rather than treating rights as external constraints.

Self-Organization: Let communities evolve their own interpretations within ethical bounds

Complex systems develop emergent properties through self-organization—the ability of system components to create new patterns without central direction. Creating space for communities to develop contextual interpretations of rights within broader ethical boundaries fosters adaptive responses to complex moral questions.

For example, rather than imposing uniform standards for religious accommodation, systems might establish minimum protections while allowing communities to develop context-specific applications. This recognizes what anthropologist James Scott calls "metis"—local, experiential knowledge that often surpasses abstract expertise in addressing complex social problems.

CONCLUSION: WHAT KIND OF SOCIETY DOES THIS PRODUCE?

A society governed by absolutist rights logic is prone to division, rigidity, and moral exhaustion. It teaches citizens to fight for dominance, not understanding. It breeds cynicism about law, exclusion in politics, and fragility in institutions.

This brittleness comes not from taking rights too seriously but from treating them too narrowly. When rights become technical legal instruments divorced from underlying values and detached from democratic processes, they lose their power to foster moral imagination and civic solidarity.

A Different Vision: Plural, Provisional, and Civic Rights

A society that treats rights as plural, provisional, and civic fosters several key qualities:

Greater empathy and mutual recognition: By acknowledging the legitimate concerns on multiple sides of rights conflicts, citizens develop what philosopher Richard Rorty called "sentimental education"—the capacity to see others as fellow travelers with valid perspectives even when they differ from our own. This doesn't require agreeing with all perspectives but recognizing their human origins and legitimate concerns.

This empathetic capacity creates what political scientist Danielle Allen terms "political friendship"—the ability to work together despite disagreement, knowing that today's opponents may be tomorrow's allies on different issues. Rather than viewing political opponents as enemies or moral inferiors, citizens see them as partners in an ongoing project of self-governance, albeit with different perspectives and priorities.

Adaptive governance responsive to real-world complexity: When rights are understood as tools for navigating complex social relationships rather than absolute trumps, governance can adapt to changing circumstances without losing moral orientation. This creates what organizational theorist Karl Weick calls "requisite variety"—the capacity to generate responses as diverse as the challenges faced.

Adaptive rights governance would include mechanisms for continuous learning and adjustment. Rather than treating rights interpretations as permanent settlements, systems would incorporate feedback loops that allow for ongoing refinement based on experience and changing conditions. This doesn't mean sacrificing core protections but understanding them as evolving rather than static.

A richer moral imagination, capable of holding many truths: Perhaps most importantly, a pluralistic approach to rights fosters moral imagination—the capacity to envision new possibilities beyond current frameworks. Philosopher Martha Nussbaum describes this as "narrative imagination"—the ability to understand the world from perspectives different from our own, seeing possibilities invisible from a single vantage point.

This moral imagination enables what theologian Reinhold Niebuhr called "proximate justice"—the pursuit of better, more inclusive arrangements without demanding perfect solutions. It acknowledges the partiality of all moral perspectives while still striving toward arrangements that better serve human flourishing across differences.

Practical Implementation: Education, Institutions, and Culture

Realizing this vision requires changes across multiple domains:

Civic Education: Schools must teach not just rights as abstract concepts but the skills of democratic deliberation. This includes the capacity to engage respectfully across difference, evaluate competing claims, and develop solutions that acknowledge multiple values. Programs like the Deliberating in a Democracy project demonstrate how students can practice these skills through structured discussion of contested issues.

Institutional Reform: Courts, legislatures, and administrative agencies need redesign to facilitate pluralistic rights application. This might include more use of advisory opinions that guide rather than mandate, sunset provisions that require periodic reconsideration of rights interpretations, and structured opportunities for affected communities to participate in developing implementation strategies.

Cultural Development: Beyond formal institutions, cultural practices that foster democratic virtues are essential. These include norms of charitable interpretation when engaging opposing views, willingness to revise positions in light of new information, and commitment to finding common ground despite disagreement.

Such a society does not abandon rights—it rescues them from abstraction and re-grounds them in justice, community, and virtue. In this vision, courts become stewards of dialogue, citizens become co-authors of the social contract, and rights become the language through which a people governs itself—together.

As Hannah Arendt observed, the "right to have rights" depends ultimately not on abstract principles but on belonging to a political community that recognizes one's claims. By fostering communities capable of recognizing multiple legitimate claims simultaneously, pluralistic rights frameworks create the conditions for more inclusive, adaptive, and morally rich political life.

This approach doesn't promise perfect justice or absolute certainty. Instead, it offers what philosopher Isaiah Berlin called "value pluralism"—recognition that human goods are many, not one, and sometimes in tension with each other. A mature political community doesn't seek to eliminate these tensions but to navigate them with wisdom, compassion, and commitment to mutual flourishing.

Measuring Success: Beyond Rights Recognition

The success of this approach would be measured not by maximizing rights recognition but by developing communities capable of navigating moral complexity while maintaining core commitments to human dignity and equal citizenship. Indicators might include:

• Decreased polarization around rights issues as measured by willingness to acknowledge legitimate concerns across political divides
• Increased citizen participation in rights deliberation beyond litigation
• Development of novel solutions that transcend binary framings of rights conflicts
• Greater perceived legitimacy of political and legal institutions across diverse communities
• Improved capacity to adapt rights frameworks to changing conditions without losing core protections

These measures focus not on formal rights recognition but on the quality of civic relationships and the capacity of communities to navigate moral disagreement productively. They treat rights not as ends in themselves but as tools for building more just, inclusive, and flourishing societies.

In the words of theologian Reinhold Niebuhr, "Democracy is finding proximate solutions to insoluble problems." A pluralistic rights framework acknowledges the provisional nature of all political arrangements while maintaining commitment to the ongoing work of justice. It recognizes that we navigate by moral stars we will never reach, but which nonetheless guide us toward more humane shores.