The seemingly imminent collapse of Roe v. Wade and the loss of reproductive autonomy for millions of women has put the Supreme Court back in the political spotlight (if it had ever left). Depending on how the official decision is written, we may be poised to see a drastic reduction in previously guaranteed rights. But what does it mean for a right to be guaranteed? What I mean more specifically is: what is the agency that continues to guarantee a right? The potential collapse of Roe raises many troubling questions about where American society is going, but I think it has been such a flashpoint because it demonstrates rather starkly that the barrier between law and politics is wafer thin indeed. More to the point it would seem that the guarantor of rights has been political power and capacity rather than institutional jurisprudence and argumentation.
I know, I know. My political friends on the left (especially those who are realists or anarchists) have already developed their suspicions of those who fetishize institutions and their supposed imperviousness to the vagaries of politics. However, I understand why the idea that the barrier between law and politics is becoming evermore porous would be unacceptable to my liberal friends and, furthermore, why our political moment must be especially disconcerting for them. After all, in order for rights to be meaningful they must be grounded in something more substantial than the contingent outcomes of political conflict. Rights are (or at least should be!) the constraints within which political conflict plays out; they should very rarely be the outcome of political conflict.
I won't go over the kind of mawkish politics that such a view may tend towards whereby we wait for institutional characters such as Ruth Bader Ginsburg, Robert Mueller, or James Comey (of the FBI!!) to intervene and set right political conflict that threatens to spill over into lawlessness. John Ganz has ably described this phenomenon here. Nevertheless, I think we should evaluate what our disposition to legal institutions ought to be at this moment and what we would like them to be in the future. On the one hand, I think liberals are correct that rights should be secured against the oscillations of politics. On the other hand, I am sure that realists on the left are correct when they assert that rights without political power count for very little in this world.
But in our current conjuncture I think there is a quite a bit of distance between how many liberals think the world ought to be and how left realists see the world currently. I am not saying that society has reached a point where law and political power are one and the same. But I am saying that if rights are meant to be the guarantors of reasonable political conflict we are seeing that rights do not guarantee themselves. The mere existence of an institution does not guarantee anything one way or the other. Indeed, institutions can seem to betray us or, at the very least, betray their founding purposes.
Which brings me back to my original question concerning the agency that continues to guarantee a right. After all, it is not institutions per se that betray their founding purposes. It is agents acting through and within those institutions. Prior rules, norms, and, conventions may constrain what agents can do for a time, but over time rules can be bent, norms shifted, and conventions changed. How much rule bending that will be allowed depends on the organizational capacity of agents within and without institutions. Despite the tendency to speak as if the Supreme Court (or the Senate, the Presidency, the FBI) was an agent unto itself, strictly speaking the Supreme Court does not act independently of the agents who inhabit it.
I am reminded of something the Black labor activist James Boggs wrote in the aftermath of Brown v. The Board of Education: "But in the period since 1954, Negroes have found that every institution in the country, from the Constitution on down, cannot guarantee or give them the rights they are entitled to. The Supreme Court decision, instead of guaranteeing them any rights, has only set them free to fight for these rights...The myth that American democracy protects the rights of Negroes has been exploded" (1970: 23). For Boggs, rights are guaranteed by the practical struggle and organization of agents who claim these rights as their own. The Supreme Court can formally institutionalize a right, but Blacks will have to organize and struggle to effectuate this right. Indeed, looking at the battle to desegregate schools following the Brown decision would seem to support Boggs's view. Moreover, the present de facto resegregation of America's schools adds more weight to Boggs's view. I think he is questioning whether a right can remain guaranteed if there are not agents sufficiently organized to defend it.
Boggs's answer is a rather definitive "no." Now Boggs has a specific analysis as to why American democratic institutions on their own cannot defend rights. It is because democratic institutions are interwoven with the economic imperatives of capitalism. For Boggs, the organization of capital tends to compete with and weaken the rights of working class Blacks in order to render them more available for exploitation (1970: 23). The point here seems to be that institutions are points of mediation such that the form rights will take depends on the actually existing social forces in a society.
On Boggs's view rights are immanently historical, but they are not arbitrary. The actuality of rights will depend on how well we can organize the social forces embedded in our political form of life. Insofar as we are disorganized by these social forces the protection of our rights cannot be guaranteed by tradition, moralism, or law. Boggs thinks that the force of rights can only be guaranteed insofar as they are mediated by the organizational capacity of agents who would claim them. Writing in 1968, Boggs was led to call for a wholly new constitution of the United States since "Now that blacks are engaged in a revolutionary struggle, the constitution by which the United States is finally governed will have to be a revolutionary constitution based upon the new social forces, just as the Constitution of 1787 was a constitution based upon the new social forces of that day. A revolution does not develop unless the government has been unable to resolve the basic issues under the existing framework" (1970: 103). I do not claim to know if we are at a breaking point whereby we should start thinking about a new constitution in the face of our moribund institutions.
And if Boggs is right it does not much matter if I think we need alternative institutions. The fact of the matter is that, at present, there does not seem to be the political capacity to erect and form new institutions to guarantee the rights we need in this moment. I think a key lesson to learn from the potential fall of Roe is that it was a mistake to think that institutions on their own will safeguard rights as if our agential organization were not a necessary component to what it means to have an effective right.
I am inclined to think that our disposition towards rights and institutions, law and politics, should be that we will have to be the guarantor of our rights; no one can do that work for us. This means that the barrier between law and politics will never be a settled affair and the form it will have to take cannot be settled by tradition alone (though I am sure traditions will have their role to play). I think this opens up difficult questions about rights and justice, but we need to resist conceptualizing rights as something apart from the social forces of our lives. Departing from the status quo carries risks. However, my question is: how long can we maintain a status quo that is increasingly unable to guarantee the rights of those who live within it? There are risks on all ends, but we need to admit that institutions are not coming to save us. So who will?
Boggs, James. 1970. Racism and the Class Struggle: Further Pages from a Black Worker's Notebook. New York: Monthly Review Press Classics.