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In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades after civic republicans and critical legal theorists mostly had formed their respective critiques of individual rights. Consequently, such thinkers failed to incorporate the notion of constitutional rights into their critiques. The particular exit rights that she enumerates–that is, the rights to exit from the benefits and responsibilities of public projects, including public education, publicly funded policing, civil rights commitments, and public health projects–harm civil society in profound ways not appreciated by rights critics in the 1970s and 1980s. The harm these rights do, the author states, borrowing language from the title of Thomas Mann and Norman Ornstein’s recent book, has turned out to be even worse than it might have seemed in the heyday of our rights critiques. The author urges a reinvigorated rights critique that centers on these new rights and new harms.

In part II the author discusses a countertrend: the expansion of civil rights beyond those enumerated in the Civil Rights Act of 1964. Some of our most newly created civil rights, generally created by Congress and state legislatures rather than announced by courts, in effect extend to individuals various rights to entercivil society, or some civil project close to its core. She calls these civil rights “rights to enter”–these include, for example, the right to a high quality and public education, the right to purchase health insurance at affordable costs, the right to a safe home and neighborhood free of gun violence, the right to nurture a newborn or sick family member while not losing one’s job, the right to marry whom one loves regardless of sex, and the right to work and school environments free of discriminatory animus. All of these civil rights, imperfectly recognized in various statutes, invite participation in some core sphere of civil society: education, insurance markets, neighborhoods, family, marriage, or employment. These civil “rights to enter,” which stand in contrast to constitutional “rights to exit,” exemplify both an old idea that dates back to the early days of the republic, and a new idea that invites participation in a radically transformed civil society. Not only are these rights not harmful to civil society, they are integral to it.

The author states that, generally, civil rights to enter are clearly not buttressed by constitutional rights to exit, and increasingly are threatened by them. First, both our historical and more modern civil rights to enter civil society–the various civil rights won in the nineteenth century by freed slaves and wives, and in the twentieth century by racial and religious minorities; women; the disabled; the elderly; school children; gay, lesbian and transgendered citizens; laborers; economically struggling parents; and the victims of hate crimes and private and domestic violence–are not constitutional rights at all, and for the most part the courts have declared as much. Although there exists a civil right to these societal benefits, there is no clearly defined constitutional right to an adequate public education, to a police force, to some measure of health care, to be free of private discrimination in employment, to safe and fairly remunerated labor, or to help with child care while employed. All of these rights, however, are at least arguably civil rights. And some of them are core civil rights. But increasingly the Constitution not only fails to protect these civil rights but also threatens to undermine them, insofar as it grants individuals and corporations the right to exit precisely those civil projects and legal institutions that civil rights seek to guarantee others the right to enter. Civil rights and constitutional rights are thus decidedly not co-constitutive of a unified constitutional tradition, or of an articulable American identity, or a distinctively American conception of the nature of rights. Rather, civil rights and constitutional rights are on a collision course.

In both parts the author suggests that the almost ten-year-old constitutionally grounded, individual right to bear arms, particularly when combined with the broadened understanding of self-defense embodied in “stand your ground” laws, jointly constitute a paradigmatic, and maybe the paradigmatic, “exit right.” By contrast, the civil rights to physical security, and to state protection against private violence that interrupts it, are at least as old as the Constitution itself, and exemplify the civil rights paradigm that she tries to describe: the right to state protection against private violence is the quintessential and foundational “right to enter.” The author concludes with the observation that, while the constitutional right to own and use a gun and the civil right to protection from the state against private violence, are in obvious tension, the constitutional right to gun ownership recognized by the Supreme Court does not necessarily foreclose the possibility of a civil right to decent effective gun-control laws. Perhaps if we could spark a renewed civil rights movement, aimed at legislative activism rather than judicial activism, we might inspire a lawful and politically salient civil response to the threats to our safety and the tears to our social fabric that are occasioned by the Court’s newfound constitutional right to own and use lethal weapons. The same may also be true more broadly. The author’s general conclusion is that the way to repair the damage done to civil society by constitutional exit rights might be simply to reinvigorate our civil rights agenda.

Publication Citation

94 B.U.L. Rev. 893-912 (2014)