The wrong road to rights
Educate before you litigate
Suppose you think something about our current conduct of affairs is fundamentally wrong and requires changing. What strategy should you adopt to maximize the chance of effecting the change in a lasting way?
Suppose, for example, you believe that farm animals are being cruelly mistreated. You want to see the mistreatment stop. Ideally you want humans to stop eating cattle, pigs and chickens. First, presumably, you'll stop eating them yourself, if you haven't already. What next?
You might assert that animals have rights, among which is the right not to be eaten by humans. You confer with PETA and other believers in animal rights and build a legal case. You shop around for a sympathetic court and file a lawsuit against an unsympathetic defendant—a corporate meat processor, say. You seek a judgment that animals do indeed have rights humans must respect.
Is this a smart approach?
It might work at the legal level. The courts, including the Supreme Court, might declare that animals have rights. But that wouldn't end the battle—any more than the Supreme Court’s decision in Roe v. Wade that women had a right to abortion ended the battle over abortion. The high court can change its mind, especially after its membership has changed.
With Roe (and Dobbs) in mind, you might try a different strategy. You might propose a constitutional amendment granting animals certain rights. The Constitution is beyond the reach even of the Supreme Court. Amendments have to clear a high bar for passage, but they end the legal debate.
Yet they don't always end the political debate, and they don't always change people's behavior. The Fourteenth and Fifteenth Amendments didn't deliver equal protection of the law to black people or ensure their right to vote, despite what they promised on paper. The Eighteenth Amendment didn't end drinking.
The basic problem is that people’s minds aren't changed by laws or even constitutional amendments. And people’s behavior doesn't change significantly and enduringly until their minds are changed.
So reconsider that strategy again. Instead of asserting animal rights, perhaps you should emphasize human ethics. Not what humans must do for animals but what they should do.
Justice warriors will object that rights are rights and can’t be left to the whims of individual choice. That would be true if everyone agreed on what rights consisted of. But they don’t. And making demands of those who disagree with you is no way to bring them around.
Advocates of women’s rights in America started demanding the vote for women in the mid-nineteenth century. Their demands made little headway for decades. Minds gradually changed about women’s place in public life—for reasons beyond the demands of the suffragists—and then the law (to wit, the Constitution) changed. And because minds had changed, the change in law stuck.
A rights-led campaign for acceptance of new norms inevitably becomes entangled in politics. And in doing so it invites opposition having nothing to do with the issue itself. Of late conservatives have railed against trans women competing in women’s sports. They’ve been very successful in mobilizing people who had never even thought about the issue against progressive candidates across the board. President-elect Donald Trump owes a debt, perhaps his election, to this mobilization.
Again, rights advocates will say that a right is a right and must be defended, even if some people get upset. But historically this is simply not true. Despite what Thomas Jefferson wrote about divinely endowed unalienable rights, rights are socially constructed over time. A right isn’t a right until society agrees it is. That agreement comes through persuasion, not coercion, legal or otherwise. In 1776 there was no broad agreement in America that people shouldn’t be enslaved. By 1863 a substantial majority of Americans had come around to that position. Confederate slaveholders were a conspicuous exception, but their numbers were small and the end of their influence was fading.
Change of mind can happen fast. In 2008 Barack Obama declared himself against gay marriage. In 2012 he supported it. Of course his switch reflected politics—but that’s the point. When he ran for president the first time, he judged gay marriage a losing issue. By his reelection run, it was a winning issue. The Supreme Court’s affirmation of marriage equality in the 2015 Obergefell case was more a consequence of changing attitudes than a cause of them.
So if your goal is better treatment of animals—or any other big shift in people’s thinking and behavior—don’t nail your flag to the mast of rights. The tempest you raise might leave your flag in tatters. Work on public opinion first. If your goal is sound and you’re patient, you’ll summon a steady breeze that will blow you safely to your destination.
For better or worse, the principle works in the obverse as well. For now, we no longer believe in the "right" to own slaves,for example. But there has been a general swing toward the individual, unlimited right to bear arms, and the incomplete human embryo or fetus that is unable to survive outside the womb is accorded greater rights than its host. No straight lines to a more just society exist. Was MLK, Jr. wrong?
I like this post a lot, and I think societies would benefit from understanding it. For better or worse, there is a finite amount of change that an individual or society can endure over some duration of time. If the strategy for change is that "steady breeze", and acceptance of the speed of change, I think that in general things will actually change faster. Of course there are always exceptions. But when people take hard lines and treat it as if it is a fight that must be entirely won right now, rather than a "steady breeze" of changing minds, minds will resist and this leads to slower change (and a more negative environment). Having said that, part of the steady breeze can be small legal changes, that then have time to be accepted, which leads to the next small change, etc. (Note: I have my own range of change acceptance, and certainly do not believe that all change is in a positive direction. So the steady breeze may often slow, and ultimately filter out many calls-for-change that probably should be filtered out, in my opinion.)