Rights From Wrongs: A Secular Theory of the Origins of Rights, By Alan Dershowitz, Basic, 256 pp, $24
It's a gutsy guy who'll talk back to the Founding Fathers. But Alan Dershowitz is not just some mouthy know-it-all. And when the Declaration of Independence affirmed as "self-evident" that all men "are endowed by their creator with certain unalienable rights," the man who perhaps is the country's most famous law school professor says the Founders goofed.
They later stripped away many of those "unalienable" rights themselves, he notes. President John Adams enforced the Alien and Sedition Acts, quashing free speech and dissent; Thomas Jefferson helped write Virginia's slave-holding law a few years after he drafted the Declaration. Obviously, some God-given rights weren't self-evident to the God-fearing men who launched the Republic.
When even believers ignore the notion of divinely given rights, we need another authority for those rights, Dershowitz says in "Rights From Wrongs." And fast. In the "absence of an authoritative source of rights, such as God or nature, it is easy to argue that man-made rights must take a back seat to the preferences or perceived needs of the majority in a democracy." It is easy, for example, for the government to claim broad powers to detain foreign fighters at Guantanamo Bay Naval Base, a claim that troubled even some conservatives and that the Supreme Court found necessary to limit.
In this persistently thoughtful, usually engaging book, Dershowitz, a self-described secularist, argues that rights should come from sad human experience. God doesn't give us our rights, he says; people "design -- invent -- rights to prevent the recurrence of wrongs." From the Inquisition to slavery to the Holocaust, "experience has shown that societies that treat people unequally -- that deny most of them any semblance of equality of opportunity -- end up with dissatisfaction, disorder, and violence."
"Rights From Wrongs" introduces and dismisses the theories of natural law, which holds that rights come from something outside the law, such as God or nature, and of positive law, which holds that rights are granted by the law itself. Dershowitz's approach of rights coming from wrongs, or more precisely from the lessons of past injustice, is intended as a third way.
This odd-couple pairing --rights from wrongs? -- is something of a theme in the book. At times, you may find yourself wondering if you've entered some bizarro world in which conservative theorists become liberals and vice versa. For example, conservative justice Antonin Scalia is famous for his "dead Constitution" view that the rights granted by that document are fixed and do not change. Liberals call the Constitution a "living" document and say rights must evolve and expand with changing times.
Then last summer, the Supreme Court considered the case of Yaser Esam Hamdi, an American citizen captured in Afghanistan as an alleged enemy combatant. The government wanted to detain Hamdi indefinitely.
The court ruled that Hamdi had the right to challenge his detention before a "neutral magistrate," and Scalia came down harder than his colleagues against the conservative Bush administration. He was prepared to spring Hamdi immediately, Dershowitz writes, on the grounds that the Founders had originally intended to protect citizens against government excesses such as unreasonable imprisonment, even in national emergencies.
Scalia's inner liberal finds a counterpoint in Dershowitz, who famously has been willing to bend his civil libertarian streak to consider antiterror measures heretofore unacceptable on the cocktail circuit in his hometown of Cambridge. If rights derive from experience, he says, it follows that we not only should expand them at times, we should also contract them when experience dictates.
Dershowitz quotes the late Supreme Court justice and living-Constitution advocate William Brennan, who constantly sought to expand rights, declaring that "each generation has the choice to overrule or add to the fundamental principles enumerated by the framers."
The middle of the book, which considers theories from various schools of philosophy, is ethereal enough not to cause regret among those who didn't major in that subject. But Dershowitz quickly returns to earth, applying his approach to topical debates such as abortion, the death penalty, and animal rights. (He offers fodder for both sides on the first two. On the third, he says: "It is certainly possible that in centuries to come our descendants -- having very different experiences than we had -- will have great difficulty understanding how decent people could have treated animals the way we do.")
Most readers will probably find something about which to disagree with Dershowitz. No matter. "Rights From Wrongs" is a crash course in legal theory that's cheaper and faster than law school. And probably more intriguingly lucid.