Page 73 - ACTL Journal_Sum24

fying spectacle of group distraction; a spectacle so far removed from what we thought were the limits of rights violations in civilized societies that we found our entire vocabulary and remedial arsenal inadequate. We were left with no moral al- ternative but to acknowledge that individuals could be denied rights, not in spite of, but because of their differences and started to formulate ways to protect the rights of the group in addition to those of the individual.
We had, in short, come to see the brutal role of discrimina- tion and invented the term “human rights” to confront it. We extended the prospect of full socioeconomic participation to women, non-whites, indigenous people, persons with disabil- ities, and those with different linguistic identities. And most significantly, we offered this full participation and accommo- dation based on and notwithstanding group differences.
Civil liberties gave us the universal right to be equally free from an intrusive state regardless of group identity. Human rights gave us the universal right to be equally free from dis- crimination based on group identity. Both are crucial to mak- ing justice happen for real people.
But then, we seemed to stall as the last century was winding down. What we appeared to do, having watched the dazzling success of so many individuals and so many of the groups we previously excluded, is conclude that the battle of discrimina- tion had been won and that we could, as victors, remove our human rights weapon from the social battlefield. Having seen women elected, appointed, promoted, and educated, having permitted parades to demonstrate gay and lesbian pride, hav- ing started to recognize our shameful treatment of indigenous people, and having constructed hundreds of ramps for per- sons with disabilities, many were no longer persuaded that the
diversity theory of rights was relevant any longer and sought to return to the simpler rights theory in which everyone was treated the same.
Which brings me to part two. That new approach put some very vocal parts of the public on a collision course with our lib- eral democratic values, which put them on a collision course with the judiciary. The underlying principles of democracy and the Rule of Law became contested, including the role of a judge in a democracy. And the more judges protected and ex- panded the rights of minorities, the more some majorities be- came unhappy and started to challenge the legitimacy of the judiciary, ignoring the foundational democratic framework of checks and balances and accusing judges of trespassing on the legislature’s territory.
The truth is there will always be those who think that what judges do is political, or illegitimate, or just plain wrong. And sometimes, they’ll be right. But sometimes they won’t. But I think in the current climate, most members of the pub- lic, particularly in the United States, are totally confused by whether judges are doing what they’re supposed to be doing.
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So we started to dismissively call a differences-based ap- proach political correctness, or an insult to the goodwill of the majority and to the talents of minorities, or a violation of the merit principle. Somehow, we started to let those who had enough say enough is enough; allowing them to set the agenda while they accused everyone else of hav- ing an agenda and leaving millions wondering where the human rights they were promised were and why so many people who already had them thought the rest of the coun- try didn’t need them.