The scenes appear daily on social media, taking on the familiarity of ritual.
A red-faced customer breathes contemptuously in a waitress’ face, or tries to muscle past a green-aproned clerk. They’ve been asked to wear a mask and they don’t like it. “I have my rights,” they say.
Claiming rights is a national pastime. Rights are solemn citations to the Constitution.
But there is no US federal, state or local law or constitutional provision that gives Americans a right to an unmasked taco order. Americans have no constitutional right to get a haircut or to dine in at Applebee’s.
The United States has the world’s highest per capita prison population. It is the only state in the Western hemisphere that executes its citizens. One hundred fifty countries provide a right to a free education in their national constitution. Not ours
Many Americans seem impervious to this truth. We imagine ourselves cloaked in rights, even when we have very few compared with many other modern democracies.
“I’m proud to be an American,” the song goes, “where at least I know I’m free.” But the United States has the world’s highest per capita prison population. It is the only state in the Western hemisphere that executes its citizens. One hundred fifty countries provide a right to a free education in their national constitution. Not ours.
Is America special?
One-quarter of the world’s constitutions provide a right against disability discrimination. Ours doesn’t. Germans have a constitutional right to feed pigeons in a public square or to ride horses in the forest. We don’t.
Many of the world’s constitutions permit citizens to claim rights against private companies. Good luck with that here. Europeans have a right to be forgotten on the internet. We wish.
Americans are obsessed about rights, and yet our Constitution and our courts are rather sparing in granting them.
These phenomena turn out to be related. The American rights fetish runs deeper than it does wide. We might not have that many rights, but when it comes to the ones we do have, we step on the gas. We don’t just claim a right to bear arms we carry assault rifles into the statehouse.
We don’t just have a right against racial discrimination but a right to dismantle college affirmative action programs designed to combat racial inequality.
We are especially dogged when it comes to free speech, stretching it to cover not just speaking from atop a sidewalk soapbox but also, for example, marketing drugs to physicians.
This kind of absolutism comes at a cost. When rights are perceived as absolute, judges can get nervous about declaring them. The US Supreme Court laid those anxieties bare when it denied the right to an education in 1974, worrying openly that such a right might portend a right to food or shelter.
The court in 1987 rejected a right to avoid execution based on proof of racially biased prosecution and sentencing practices, reasoning that recognising such a right “throws into serious question the principles that underlie the entire criminal justice system.”
Americans speak a robust language of rights but lack the language of constraint, of moderation, common in other countries, that would allow courts and the rest of us to be less anxious about declaring the kinds of rights that justice actually demands.
Don’t blame the framers of the Constitution, who well understood that rights had inherent limits. Rather, this absolutist posture toward rights reflects the bitter struggle against Jim Crow in the 1950s and 1960s, which defined in the popular culture what it meant to have constitutional rights.
But it’s been too easy to jump from this brutal history to the conclusion that rights are, in their very nature, an exemption from the law a “get-out-of-jail-free” card not so unlike the fake laminated cards many antimaskers have been brandishing.
It finds expression today in the rhetoric of “all lives matter” and in the failure of many to see any distinction between antimasking and antiracism protests. “Where’s my exemption? I have my rights.”
This feels like madness in the middle of a worsening pandemic, but allow me to propose a truce.
Telling someone they have no right to breathe free air won’t get us far. It feels arbitrary, and it is. Instead of continuing the ceaseless tit-for-tat of “I have rights!”/ “No, you don’t!” we should instead begin to develop a language of moderation when it comes to rights.
We can concede that an arbitrary masking law, one that, say, required masks only on weekdays or only for men, would violate our rights. But people also have a right to go food shopping without the risk that an unmasked person transmits a deadly disease.
How this conflict is resolved isn’t for me to decide, or for you. We have democratic institutions to reconcile our rights, through law.
But first, we need to see each other as rights bearers and as equal citizens who disagree with one another but who must figure out a way to live together.
Jamal Greene is a professor at Columbia Law School
Los Angeles Times