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1 Rights Consciousness in American History  .  It is a truism of contemporary law practice that lawyers rarely spend much time kindling in everyday Americans a vivid sense of rights. Far more often, as legal anthropologists have shown, the exchange between clients and lawyers works the other way around. From the moment the injured and aggrieved cross the law office threshold, seeking help in some tightly knotted relationship with their neighbors, bosses, public officials, or family, their talk is suffused with claims of rights and injustice. Anger, outrage, meanness, and naked self-interest are all poured into a flood of rights talk. Into rights talk, too, flows just the opposite: altruism, hope, selflessness, and loyalty. Intervening in this tide of legal and political abstractions, the lawyer’s job is not to teach clients the language of rights. It is, rather, to talk them out of most of their rights claims, to nudge them toward mediation and compromise, to pare their cases down to the bare essentials they think will form a successful case in the courts.1 American civic culture has not always been saturated by rights consciousness , but for well over two centuries, the language of rights has left a powerful mark on social and political relations in the United States. The negative effects of a political culture steeped in competing rights claims have often been noted. Rights talk has destabilized politics, often at the expense of deliberation and compromise. It has sluiced complex issues of policy into narrow claims of rights and fractional interest. It has swept key issues of democratic politics into the undemocratic rule of the courts. It has helped to produce a society with more lawyers per person, it is said, than any other on the globe, and it has flooded every aspect of life with legalist argument. And yet, rights talk has also been one of the most important ways in which Americans have infused their politics with a dimension beyond mere law or inter- ests. Arguments about rights—essential, inalienable, human rights—have been among the key ways in which Americans have debated what a good society might look like, unburdened of injustice and the dead hand of the past. In its messiness, power, and contradictions, rights talk is one of the basic noises of American history. Only a fraction of the historic contest over rights has taken place within the confines of courts and law books. Scholarship on the Bill of Rights has consistently exaggerated the place of that document in the dynamics of rights history in the United States. The courts have never been as imaginative producers of rights as the litigants who have pressed their arguments and cases on the justices, or raised them on the street corners or in the churches or labor union halls. The law has delineated and institutionalized rights, sorted through the rights claims thrust upon it, siphoning off and defusing some, instantiating others. But the legal profession’s desire for control over the production of rights and over the diffusion of rights consciousness has always been profoundly frustrated. Rights talk in the American past has been not only the jargon of the courts but also and more importantly the characteristic language of popular politics. It has been the talk of town meetings, political rallies, newspapers, voluntary associations, religious assemblies, workmates, family gatherings, and electoral huckstering. In moments of crisis the upshot of this broad diffusion of rights talk has been angry collisions of competing rights, as the rights of enslaved Americans have smashed up against the rights of other Americans to property in slaves, the breadline standees’ right to a job against the rights of free enterprise, the rights of pregnant women against the rights of the unborn. Popular politics in America has not only been the site of extravagant rights assertion but also of endemic rights violations, perpetuated in the name of justice, security, patriotism, or racial purity—even in the name of rights themselves. Rights have been invented and repudiated, expanded and violated, striven for and struggled over. The current emotionally charged and politically polarized furor over gay rights is no historical aberration ; its dynamics are among the most familiar in American history. Yet it is from this ongoing, passionate, democratic debate over rights, often far from the dicta of courts, that the expansion of rights has historically drawn its primary energy. Although an enduring feature of American political culture since the eighteenth century, rights consciousness has been not been static. There are four...

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