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This article discusses the absence of the Rights Critique in the modern era, and its impact on the current formulation of rights in America. The three-pronged rights critique-–that U.S. constitutional rights politically insulate and valorize subordination, legitimate and thus perpetrate greater injustices than they address, and socially alienate us from community--was nearly ubiquitous in the 1980s. Since that time, it has largely disappeared, which in this author’s view is an unfortunate development.

The rights critique continues to be relevant today, because Obama-era rights continue to subordinate, legitimate, and alienate. However, these rights do more than just exaggerate the pathologies of rights about which the rights critiques have complained. For one, Obama-era rights are more lethal than the original rights targeted by the rights critique. But most importantly, several Obama-era rights are best described as defensive rights, which allow the holder to withdraw from the social compact with a failed or failing state. Recent court decisions have recognized the right of citizens to withdraw from the bonds of citizenship, because the state has proven to be incapable of performing its most basic functions, such as providing for the poor, providing children with an adequate education, or preventing violence against its citizens.

Finally, the article argues that the proper response is not to withdraw from the social compact through the courts, but to engage the citizenry in rebuilding the state so that the state is capable of performing its essential functions.

Publication Citation

53 Wm. & Mary L. Rev. 713-746 (2011)