This article explores the character of conservative legal activism in post-civil rights America, arguing that this activism is motivated by two related factors: (1) resentment over the increased political participation of historically marginalized Americans and (2) principled allegations that these historically marginalized Americans are making illegitimate claims for "special," not equal, rights. I argue that the allegation of special rights is tied to the activists' resentment in multiple and complex ways. On the one hand, the allegation that the rights claims of the historically marginalized are illegitimate claims for special rights is itself an expression of resentment. Like arguments that oppose redistributive social change by relying upon discourses of color blindness, states' rights, evangelical Christianity, and community harmony, special rights talk channels resentment into recognizable and intelligible forms. But, on the other hand, the use of special rights talk is not simply cover for an underlying, fully formed resentment. Instead, the allegation of special rights propels and amplifies activists' resentment, transforming it from one that is based primarily upon competing self-interests into one that is concerned with values, morality, and national identity. Special rights talk thus partially constitutes resentment; it hardens the resolve of opponents of redistributive social change, encouraging them to understand themselves as defenders not only of their own self-interests but also, primarily even, as defenders of the core American values and ideals that are promoted by equal rights and assaulted by special rights. Thus convinced that their opposition is authorized by American tradition, conservative legal activists redouble their counter-mobilization efforts, leading to an exacerbation of already tense conflicts. A case study of the nationwide anti-treaty-rights movement grounds this analysis.
There is an important sense in which language constructs the people who use it.
(Murray Edelman, Constructing the Political Spectacle)
Mr. John J. Benson, an ordinary American citizen, is troubled by the spread of "special" rights. "Special rights?" he asks:
Since when did America have special rights? I thought all of us were supposed to be equal before the law? It is supposed to be equal rights.
Today we have all kinds of rights. Special rights based on gender, based on race, based on disability, based on sexual preference and so on and so forth.
Today it seems everyone has rights except for white males. In fact, we (white men) are the biggest victims of a society that blames us for all the wrongs in the world and denies us our individual rights at the expense of special rights for others. (Benson 2002:14)
Hardly exceptional, Benson's formulation illustrates a general resentment that consumes America's political culture in contemporary times. That this resentment is so often expressed through the condemnation of supposedly deviant rights-claims is, moreover, significant. For at the intersection of rights and resentment, I shall argue here, emerges the political vision of an increasingly large segment of the American populace. But to understand how the political visions of Americans are constructed by the sort of special rights talk proffered by Benson, we must attend, first, to the nature of the claims that he condemns and, second, to the character of those condemnations themselves. Each task, we will see, leads us to consider the constitutive power of language in general and of rights discourse in particular.
The allegation that certain populations are seeking special rights is, in fact, a reaction to the political activism of women, African Americans, the physically and mentally disabled, Native Americans, and gays and lesbians over the last 50 years. That activism was characterized by a willingness to mobilize constitutional and other rights as resources for social change. …