that the only alternative to nihilism that is a real concern when "rights language" is questionable has already become manifest in the very Supreme Court First Amendment "rights" language and its results

THE SPEECH WHAT'S WRONG WITH RIGHTS a Christian perspective, by Stanley Hauerwas has some important questions, demonstrations and conclusions in it and I've decided to risk transcribing it to comment on it.  You should, of course, listen to it yourself because I'm sure Hauerwas is a far better resource than I am for inciting thinking and discussion on some little remarked on but extremely important problems we have with our laws and politics and, more so, our culture and society.  Being a political blogger, I'm most concentrated on the political and legal.  Though I think part of the problem is that the law and political thinking ignores that unless The People start out from an intention of good will, what Hauwerwas will eventually remark on as kindness, what Pope Francis has championed as mercy, no legal or political system will produce good ends.  Any politics, law, legal theorizing, government action that doesn't promote such good will contains the seeds of its own destruction.  Ours not only doesn't promote it, it actively inhibits such promotion.  Our media promotes cynicism, envy and distrust as well as selfishness and consumerism, which, even as its terrible and clearly predictable results come in mount and get even hundreds of thousands of us killed,  is A-OK with our ideological framing because "free speech-press."

Our ideological framing excludes questions of good intentions and seeking such necessary ends in a pose of enlightenment scientific inquiry that pretends to leave those questions open because the structuring of science cannot deal with them by the intentions of of its method and its narrow focus.  But life, politics, the law, never leaves such questions open, they end up answering them, or forcing what in effect is an answer and without the prerequisite good intentions, the results are, on balance, not good. What happens as a consequence serves bad intentions and the ends that those bring.  When a democratic republic ends up in the same places as despotic monarchies, something hasn't worked, as it clearly has not in so many a modern would-be republic.  

In the American context, the character and means of making money among the Founders is an intrinsic element in making that choice for a pose of scientific indifference.  

Given the role the imagination of 1776 has in our make-believe history, whether the mendacious cross-race-dressing pieties of "Hamilton" or the idiot fascists waving Gadsden flags as they try to overturn elections, and the real role that the Constitution has in our official politics and law (the insurrectionary voter suppression of the Roberts Court*) we cannot get away without going into the character defects of those rich, white men and the later rich, white men and women who share in their flaws and, so, rise in power.  Not until we replace the Constitution they wrote and the Bill of Rights with something that does not pretend such basic moral distinctions are not needed, something which takes the lessons of our terrible subsequent history as seriously as the Constitutional blue-print, the 18th century product of their amateur imaginations, many of which ideas changed in their imaginations even long before the framers died.  

Here's where his lecture starts.

I assume I'm here as a representative of that most modern of "atheists," namely those who do not believe in inalienable rights.  I take it to be a mark of our times that a theologian may have worries about whether God exists but we cannot call into question the status of rights.

The language of rights bloomed after World War Two in what seemed to be an absence of any unifying ideologies or religious belief systems necessary to bind individuals together. Rights are, therefore, regarded as a source of ethical and political values that was and is capable of binding people together short of violence.

The language of rights became and remains the language of high humanism many think necessary to maintain peace in a fragmented world.

Therefore, to be a critic of rights is close to  putting oneself on the side of terrorism. For example, some suggest the Convention against Torture and Other Cruel and Inhuman, Degrading Treatment,  a Convention of 1987, is a crucial example of the importance of the development of rights language.  

It seems if we did not have the language of rights we might, it seems, lack the moral presumptions for a condemnation of torture. Governmental and non-governmental agencies make frequent appeals to this Convention in support of political prisoners and their families around the globe. Accordingly rights as ideals and principles form the basis for liberal democracy that have assumed a value and authority without precedence in the history of the world.

It's hard to imagine why anyone, particularly someone like myself committed to non-violence would have any hesitation as to appeals to rights.  Yet I do have reservations which interesting enough involves how one thinks about torture. I will develop my worries as a broadside but let me put it succinctly this way.  

If you need a theory of rights to know that torture is wrong, or if you think you need rights to ground your judgements that torture  is morally wrong, then something has clearly gone wrong with your moral sensibilities. What follows is my attempt to defend that remark by giving you a list of what I regard as some of the disabilities associated with rights language.

Far from Stanley Hauerwas demoting the consequences that are whatever is virtuous about "rights talk" by noting the inadequacies of "rights,"  he is worried that thinking of things solely in such terms demotes the consideration of them and damages the outcomes from that thinking.  I have come to conclude, the dangerous inspecificity of "rights language" as to the moral consequences or immoral uses of it leaves even the cleverest people incapable of discerning the difference, or, rather, thinking or talking about the consequences of that.  

Perhaps even more so, the social and educational coercion to not admit to those problems or the inevitable moral nature of them or that we must find legal solutions to them or all that is good is lost, is an even more potent consequence of this situation. 

And their disassociation of rights from perusal of the moral consequences of such denatured "rights" which have and can support immoral consequences, the criticism of Hauerwas which I am supporting sees "rights" as an inadequate substitute for the kinds of better "moral sensibilities" that he mentions above.  

My criticism of "rights" in American democracy yesterday, of the rights enumerated in the Constitution, especially those foolishly granted to human created entities "the press" "religion." states and offices, those which can be used and are for the worst as well as the best of purposes "speech," and one even more ambiguous as even an heavily mitigated good "bear arms," is based in the actual history of such "rights" as performed under law.  That history proves that such talk is essential, not only to the humanist imagined liberal democracy mentioned above but to the Roberts-Alito court, the Republican-fascist, corporate media driven retreat into white supremacist American apartheid, 1950s era subjugation of Women, the Supreme Court taking away in LGBTQ+ rights which the Supreme Court  so recently "gave", etc.  

"Rights" in 2022 is as much the language of Trump, Trump's rent-a-lawyers, Neo-Nazis, white supremacists, Republican-fascists, other lawyers and on TV liars of corporations and Neo-fascist-libertarian* billionaires and the ACLU that can be counted on to support their "rights" to lie themselves into power.   With their financial backing and head start in the culture of our indigenous criminal class, white supremacists, on the side of the current, perhaps permanent Supreme Court majority, there is no doubt where, in most cases, such "justice" will come down. 

The scientistic adoption of the merely secretarial practice of science shunting aside questions of morality, that artificial exclusion to do science adopted by government and the law is to guarantee that the courts will adopt that pose and to come out with exactly the legal conclusion as matters of "rights" that you would expect from any corrupt court anywhere under any form of government.  As Walter Brueggemann noted, Scalia never found an "original intent" that didn't agree with him.   

Obviously equal justice is not an essential and unavoidable logical consummation of "rights language."  That shouldn't surprise us as such phrases as "the divine right of kings" was the kind of language that the United States was formed to oppose. Even though nothing is clearer than that the aristocrats who formed the Constitution intended to exercise such rights over slaves and others.   What we may have missed in the adoption of the framings of rights as opposed to specific and necessary guarantees of moral life in the right kind of moral sensibilities was that rights divorced from those are as useful to those wanting to achieve other sensibilities that are quite immoral.

He certainly raises some thorny and not typically raised questions that I think are worth thinking about as the Supreme Court "rights" us into despotism and grotesque inequality.  But the problems he points out are far deeper than that.

I can illustrate what I mean by suggesting that rights language has become too powerful by calling attention to a remark by someone who I believe was in the Department of Justice during the Civil Rights campaign in Mississippi. Several Civil Rights Workers had been killed, the spokesman for the Department of Justice was appropriately outraged. In order to express his outrage he resorted to the moral vocabulary in which he most felt at home.  He said those who had been killed had had their rights violated.  When "rights" become a more basic moral description than murder you have an indication that your language has gone on a holiday.

Of course, one cannot help but have sympathy for the Department of Justice representative.  He was using the most significant language he knew to indicate what a horrible moral crime had been committed.  Yet the very appeal to the violation of rights as fundamental moral description may indicate a profound worry about such a morality.  For if confidence in the language of rights is lost it is not clear what the alternative to nihilism will be. I worry, therefore, that for many reasons some are trying to make the language of rights do more work than it is capable of doing.

This is an intensification of a point I've made in the past that the use of "rights" growing out of the Bill of Rights but not only due to that to support truly terrible things, now including a Supreme Court blessed "right to lie" which cannot but be destructive of a right for People to know the truth, one of the absolute prerequisites for having a real egalitarian or even a merely working electoral democracy.  Of course it's not called a "right to lie" but that is exactly what it is.  When Alex Jones had a leg to stand on citing "rights" as defined in the Constitution in court for what he broadcast to his large audience about the parents of the children murdered in a mass shooting, ATTACKING THE VICTIMS, OF THAT CRIME,  while there is some ground for appeal of the judgement against him within our Constitutional system as the judiciary has commanded it is, the worry of Hauerwas that the only alternative to nihilism that is a real concern when "rights language" is questionable has already become manifest in the very Supreme Court First Amendment "rights" language and its results.  

And what can be said about a Supreme Court, lower court created "right" to lie that swamps truth, as we found out in the experience of Trump and should have already known from the Gingrich era in the House and Republican-fascism in the Senate, can be repeated over and over again, not as a result of a loss of confidence in "rights" language but the language of rights being over-worked well past the point where it failed and broke long ago.  Yet the shoddy impoverished thinking of enlightenment secularism, stuck in the pose that the secular descriptions and categories and definitions are all you are allowed to make recourse to leaves the would-be explainer and definer without any language to even admit there is a problem.  There's a "level playing field" the "justices" only "call balls and strikes" the rules are in place, they're the only ones allowed no matter what the results are.  The Supreme Court rigged depravity we are experiencing proves that their adoption of "rights language" is as useful to those intent on committing murder as it is to those shocked by it, their recent gun ruling is an obvious example of that, as is their gutting of the Clean Air Act.  

The opinions of those like Scalia and O'Connor that say it's permissible for the state to execute innocent people on the basis of a failure to file papers on time should certainly have been called what they were.  Rights cannot even overcome the calendar of lower courts to save possibly innocent People from being executed, yet we depend on them even with the Court we have.  The Democrats in the House and Senate who believe that a legal codification of Roe would stand up against the Roberts Court, that People should depend on the Bill of Rights and the Constitution - in short, the courts - to protect them when it has not yet done so, are like a more intense example of how dangerously far we've gotten in depending on "rights language" against all evidence that it is not adequate in even many of the most exigent circumstances.
 
The old guard at the ACLU, largely white and from a background of affluence, is having to deal with younger lawyers, many of them lawyers of color whose personal experience will not permit them to do what the old guard did so well, ignore the consequences of their advocacy on behalf of morally corrupt People, groups and corporations, including our indigenous fascists, the white supremacists and Neo-Nazis.  I would add the tobacco, liquor, addictive and harmful pharmaceutical and gun companies to that list because they are all in the same business.  

I would not be surprised if the religious identity of the two groups of lawyers might possibly have some interesting information in it, though I don't have that information to see if that's true.  But even without that I agree with Hauerwas that secularism is part of the problem, I think I may go farther than he does in saying I think that secularism is one of the diseases at the heart of the problem which prevents any real change which will save us.  Secularism is incapable of resisting evil in even some of the most obvious and basic of moral distinctions.  The failure of rights language in the United States starts with those inadequacies of the Constitution and the Bill of Rights, many of them placed there by slave-holders, financiers and genocidal land barons, many of those inserted problems exacerbated by the same on the Supreme Court from at least the time of John Marshall, certainly from the time of Roger Taney and today with the era of William Rehnquist and John Roberts and his stacked Republican-fascist majority.  

* Under the inadequacies of our thinking, our language, our legal system and our Constitution, the Roberts Court and Republican-fascist state legislatures will do more to destroy electoral democracy than those idiots who stormed the Capitol on January 6th, and the inadequacies of all of that list just given will facilitate them doing it under the Constitution.  When the Constitution didn't protect the voting rights OR LIVES of freed Black People as the Constitutionally, Electoral College installed Rutherford Hayes ended Reconstruction, that was certainly the decisive proof that the Constitution doesn't produce the good things it promised. Not even with a decisive win for the Union in the terrible Civil War and the Emancipation Proclamation.  The Roberts Court and Republican-fascists are reenacting the erection of the Jim Crow era under the Constitution.  American apartheid.  The Constitution cannot stand as it is forever, it will have to be replaced with something that does intend to produce equal justice because it hasn't and doesn't, even as amended. The Court and the Constitutional structure of governance will hand victory to the insurrectionists by more genteel means.

Update:  It is remarkable how, given the pose of scientific moral indifference that is part of the basic framing of U. S. Law, how the Courts have so institutionalized a legal indifference to even the most clearly valid and experienced findings of legitimate science such as in its recent billionaire enriching climate denying rulings.  Clearly rights language isn't the only problem with our out-of-control Supreme Court under the Constitution.