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Publication Date

Summer 2001




Yale Law School




The rise of rights talk is a subject that has gripped academia in recent years. Many historians of modem America are now searching for the origins of the rights revolution and the feverish use of rights arguments on the left and on the right. Two recent works of legal history tackle one part of this question with trailblazing interpretations, focusing on left-wing rights discourse and the successes of the civil rights movement. Both books offer compelling and well-written narratives of post-war legal issues, and they present innovative arguments that this revolution began in response to global crises.1 Richard Primus's The American Language of Rights argues that rights are not natural truths, but are, rather, historically contingent. Rights, he claims, evolve when a political community reacts to particular adversities and synthesizes established rights with new conceptions of rights to combat that adversity.2 Just as the Founding and Reconstruction generations articulated systems of rights in response to particular events and evils, the post-World War II generation pursued a vision of human rights defined against the horrors of Nazi and Stalinist totalitarianism. In a parallel story, Mary Dudziak's Cold War Civil Rights attributes America's advances in desegregation to a global public relations crisis over the treatment of blacks.3 As this international embarrassment provided ample fodder for Communist propaganda, presidents from Truman to Johnson heeded a "Cold War imperative" to promote racial justice.

Grappling with the complicated origins of the civil rights movement and the Warren Court's activism, Primus and Dudziak offer coherent explanations that integrate domestic politics, international events, and the world of ideas. By placing this rights revolution so clearly in their global post-war context, they have pushed the boundaries of the legal academy to a more global perspective, and they have contributed to our understanding of the civil rights movement's broader origins. They have also suggested how seemingly unrelated events force leaders to embrace social reform, and how those leaders build on rights traditions to gain momentum. Even as legal academics continue to argue that rights are fundamental and universal, Primus and Dudziak offer evidence that rights are historically constructed, contextually reactive, and ad hoc.

However, both books emphasize the role of elites,4 and for that matter, of left-leaning elites, which leads to two shared shortcomings. This emphasis enables them to make some particularly insightful observations about the decisions of many significant political leaders, judges, and academics from the 1940s to the 1960s. This perspective creates a great story, but unfortunately, it is only half the story, or more accurately, one quarter of the story. As a result, they overlook some very significant differing perspectives on the Cold War and rights discourse.

The first shortcoming is that this perspective does not address perhaps the most significant aspects of this era: the rise of popular rights consciousness and the decisive role played by marginalized social groups that embraced liberal rights talk.5 Second, the focus on liberal elites obscures two of the most important explanations for the demise of American liberalism: first, the conservative popular revolt against liberal elites; and second, the successful rights counterattack by conservatives. Turning the tables on the New Deal coalition's populism, conservatives recast themselves as defenders of the people's rights against a liberal elite.6 Conservatives with different interests and backgrounds were able to coalesce around rights rhetoric, libertarianism, and anti-totalitarian Cold War themes to form the ascendant Republican majority.7 Primus ignores this backlash, which developed equally significant languages of rights in response to totalitarianism. Dudziak does a better job of noting the limits of her study, of identifying the role of non-elites, and of recognizing the eventual backlash. Part of the reason she devotes less attention to how the Cold War undermined civil rights is that this story is the conventional wisdom that she questions so effectively.

This Book Note seeks to extend their insights about the significance of global politics and rights discourse even further, in order to grasp the dynamics of the rights counter-revolution. This conservative response was equally context-driven, globally minded, and anti-totalitarian. Other historians, fleshing out the story with other groups and other rights talk, reveal that this era was less a rights "revolution" with one language prevailing, -than a rights "evolution" with multiple vocabularies developing from traditional languages of rights. When Primus's and Dudziak's books are synthesized with this historical scholarship, a rich and complicated story of rights revolutions and counter-revolutions emerges.

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