Panel Recap: Individual Rights

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Courtney Hostetler
The panelists on the Individual Rights panel pushed the boundaries of the panel’s theme in two ways.  First, they did not engage in a definitional debate as to what individual rights are protected by the Constitution.  They instead focused either on creating a framework that would allow other actors to engage in the interpretation debate or on theorizing new tools for realizing constitutional rights.  Second, the panelists suggested that a progressive vision of individual rights in 2020 may not be focused on the individual at all – the best way to protect individual rights may be through a reimagination of the social infrastructure. 
 
As Professor Rick Garnett noted, the quintessential image associated with individual rights, that of the lone dissenter, is still important; it remains the recipient of these rights and one of its protectors.  However, the de-contextualized individual was largely absent from a conversation about individual rights that was dominated by institutions, social organizations and movements, identity groups, and our social environment.
 
This is not to suggest that the panelists’ presentations were similar; as you'll see, although the panelists shared some common ground, each tackled divergent aspects of this broad category of constitutional rights:

Video courtesy of Yale Law School.

Professor Elizabeth Emens started the discussion off by positing that anti-discrimination law is trapped in an “individual bad actor” model which fails to address institutional structures that lead to disparate impact, and that a progressive vision of individual rights must correct this failure.  She suggested that disability law may be a helpful analytical tool for reimagining “the anti-discrimination project.”  By locating the idea of disability between the individual’s impairment and the social environment, disability law is able to “focus on structural change without losing sight of the individuals,” a focus that Professor Emens is optimistic might benefit anti-discrimination law.
 
 
Professor Garnett and Professor Paul Horwitz both argued institutions are not only mediums through which people may express their rights, but also are [mechanisms?] capable of protecting these rights.  Professor Garnett argued that the right to religious freedom is best protected and served by ensuring that non-state institutions, including churches and other religious organizations, flourish.  Professor Horwitz posited that the First Amendment doctrine would be best served by learning from the best practices these institutions have developed over time, and by reconsidering the relationship between courts, institutions, and the rights themselves.  In the long run, they argue, protecting these institutions may be the best way to protect the rights of the individual—even acknowledging that these institutions may not always support those individual rights. 
 
Professor Alice Ristoph concluded the panelist presentation portion of the session.  She discussed the possibility of identifying an anti-violence norm in the Constitution.  While anti-discrimination would only prevent the use of [more?] force against one group, Professor Ristoph expressed some optimism that the Constitution might contain instead a norm that curtails the government’s use of violence in pursuit of goals such as criminal justice or national security.  She also expressed concern that the constitution and citizens themselves may be used to rationalize government violence.
 
The panelists considered several intriguing questions posed by audience members during the later half of the panel. Professor Emens and Professor Ristoph debated about how much work anti-discrimination might do in bringing about an anti-violence norm.  In response, Paul Kahn, who moderated the panel, suggested that their debate illuminated two distinct views of state action as an actor in the protection of state rights: either rights constrain the state, or they guide the state toward positive obligations of accommodation. 
Judith Resnik challenged the premise that federal courts might assist in identifying and protecting an anti-violence norm, noting that they often have tolerated vast amounts of violence.  She also asked how a social movement might engender actors who are less frightened and more willing to support this norm.  Although her points were directed toward Professor Ristoph, others queried whether different fears—of stigmatization and vulnerability—might prevent people from linking disability law with anti-discrimination law. 
Reva Siegel expressed concern that the accommodation model of disability law may be too general a mode of equality that lacks the “granular, group-specific answers” that are needed because discrimination affects distinct communities and groups differently.
Professor Horwitz acknowledged that he and the other panelists have theories that, if implemented, would substantially change the toolkit currently in use for protecting individual rights.  He considered whether it is worth changing the toolkit, given the transition costs of doing so; and whether these additions and changes illuminate the appropriate tools to use.    
 
The panelists and audience members raised a number of important issues; here, I offer a few additional questions that hopefully build upon these contributions.  First, I noted above that the panelists tread common ground in their treatment of the individual in relation to other actors.  Taking first the theories of Professor Garnett and Professor Horwitz – the strength and historical significance of institutions both support their theories, but also beg the question as to how much stronger non-state actors should be made; is there a tipping point beyond which they will no longer be protectors of individual rights and instead become limits to these rights? Even if social organizations shore up individual rights in the long run, is this enough to warrant the strengthening of institutions that may not be supportive of some rights of the individual? 
 
This question might be asked more broadly of all the panelists: in a discussion of contextualized individual rights, what is the right balance between the lone dissenter, the individual as a social being, non-state institutions, and the government?  Finally, what happens to any of the theses presented when we consider a fact that emerged from the discussion: that individuals, social organizations, and even the state may be either a useful tool for protecting or a roadblock to the realization of constitutional protected rights, in addition to being the intended recipient of these rights?