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23 Harv. C.R.-C.L. L. Rev. 393 (1988)
Rights

handle is hein.journals/hcrcl23 and id is 403 raw text is: RIGHTS Morton J. Horwitz* In a recent issue of this journal,' some minority group scholars sharply challenged the various criticisms of rights the- ories put forth by scholars associated with the Critical Legal Studies movement. In addition, the recent Bork nomination hearings focused attention on the important role that the dis- course of rights has come to play in American legal and political culture. This comment is an attempt to define the controversy and to suggest the ways in which theories of rights have both helped and hurt the struggle for a more just society. Since the late 1930's, the concept of rights has served over- whelmingly to create a legal and political culture that has legi- timated the protection of civil liberties for political,2 religious3 and racial4 minorities and, much more recently, has'provided an emancipatory set of ideas or entitlements for cultural minor- * Charles Warren Professor of American Legal History, Harvard Law School. Minority Critiques of the Critical Legal Studies Movement, 22 Harv. C.R.-C.L. L. Rev. 297-447 (1987). 2 See, e.g., Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) (inval- idating a statutory loyalty oath required as a condition of access to the state ballot); Williams v. Rhodes, 393 U.S. 23 (1968) (overturning Ohio statutes which would have barred George Wallace and his American Independent Party from appearing on the 1968 presidential ballot). 3 See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that the state must modify its compulsory education requirements to accommodate the tenets of the Amish religion); Sherbert v. Verner, 374 U.S. 398 (1963) (holding that the state must alter its unemployment compensation requirements to accommodate those who observe a Sat- urday sabbath); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding that children of Jehovah's Witnesses could not be required to salute the flag at school). 4 See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954) (holding that black children have the right to equal educational opportunities in non-segregated schools); Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) (holding that university admissions programs may consider race as a factor in the selection process).

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