Anti-Liberal Rights Retrenchment as a Threat to the Rule of Law

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the half-century old constitutional right to reproductive choice, is only the most prominent example of a global series of attacks on rights of personal, sexual, and family autonomy. The attacks on LGBTQ+ rights by the Christian nationalist governments of Hungary and Poland are another important example. A cadre of anti-liberal scholars and public intellectuals such as Patrick Deneen, Sohrab Ahmari, and Adrian Vermeule serve as the intelligentsia within this global reactionary movement, advocating for the direct importation of far-right values into the law of western states on the basis of a religious, anti-liberal conception of community and public identity. In common parlance, the victims of this attack on egalitarian legal rights sometimes say that they are excluded or erased or treated as sub-human.

That response is intuitively plausible—it is easy to think, for example, that taking away gay rights excludes LGBTQ+ individuals from the political community by communicating that they lack the support of their societies for their personal relationships and individual identities. But this idea is somewhat undertheorized in the scholarly literature. This Essay contributes to the theoretical development of the idea of rights-retrenchment as exclusion. Reading together Patricia Williams and G.W.F. Hegel, it offers an account of how liberal legal rights support the individual and social identities of those who enjoy them, and how those rights are particularly critical to members of socially subordinated groups.

It is concluded that one reason to value the rule of law, in its facet as a demand for the stable protection of individual rights, is to protect this identity-supporting function. This Essay is thus both a critique of the modern anti-liberal movement and an updating of the critical race theory defense of rights for the present era of reaction and retrenchment.