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In the Name of Equal Rights: “Special” Rights and the Politics of Resentment in Post–Civil Rights America

Authors


  • I am grateful to Michael McCann, Stuart Scheingold, Christine DiStefano, David Olson, and Jon Goldberg-Hiller, each of whom offered valuable comments on previous versions of the work presented here. Tom Burke and Susan Burgess offered very useful comments and encouragement on the initial draft of this article. Mary Dudas helped me sharpen the argument at crucial points in its development. Finally, I thank Herbert Kritzer and the anonymous reviewers of the Law & Society Review for their thoughtful suggestions and their help in bringing this work to publication.

Please send correspondence to Jeffrey R. Dudas, 341 Mansfield Road, Unit 1024, Storrs, CT 06269-1024; e-mail: jeffrey.dudas@uconn.edu.

Abstract

This article explores the character of conservative legal activism in post–civil rights America, arguing that this activism is motivated by two related factors: (1) resentment over the increased political participation of historically marginalized Americans and (2) principled allegations that these historically marginalized Americans are making illegitimate claims for “special,” not equal, rights. I argue that the allegation of special rights is tied to the activists' resentment in multiple and complex ways. On the one hand, the allegation that the rights claims of the historically marginalized are illegitimate claims for special rights is itself an expression of resentment. Like arguments that oppose redistributive social change by relying upon discourses of color blindness, states' rights, evangelical Christianity, and community harmony, special rights talk channels resentment into recognizable and intelligible forms. But, on the other hand, the use of special rights talk is not simply cover for an underlying, fully formed resentment. Instead, the allegation of special rights propels and amplifies activists' resentment, transforming it from one that is based primarily upon competing self-interests into one that is concerned with values, morality, and national identity. Special rights talk thus partially constitutes resentment; it hardens the resolve of opponents of redistributive social change, encouraging them to understand themselves as defenders not only of their own self-interests but also, primarily even, as defenders of the core American values and ideals that are promoted by equal rights and assaulted by special rights. Thus convinced that their opposition is authorized by American tradition, conservative legal activists redouble their counter-mobilization efforts, leading to an exacerbation of already tense conflicts. A case study of the nationwide anti-treaty-rights movement grounds this analysis.

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