Rights—we can't seem to live with them and we can't seem to live without them. This recent collection of essays on America's “rights tradition” bears witness to the deep ambivalence Americans—or at least the contributors to this volume—have about rights. Like most collections, this one is very uneven both in quality and theme. But one thing that runs through most of the essays is strong feelings about rights. Although the main topic, so far as there is one, is the status of rights both in theory and practice at the time of the American founding, it is evident that attitudes about them in the late twentieth and early twenty-first centuries figure in many, even most, of the authors' views about rights at the founding. Thus, there are some who are aghast at what has happened to them in theory and practice since World War II and they, for the most part, attempt to establish that the rights the founding generation affirmed were nothing like the rights that, say, the Warren Court or the UN Universal Declaration of Human Rights affirmed. Others, friendlier to the rights of our day, see somewhat more continuity between then and now or, if not, tend to speak of progress in rights.

The essays in this book were originally presented at a conference held at Colgate University in 2000–2001, that is, before the events of 9/11. The essays, despite their very disparate character, show some of the advantages of their common origin, most notably an occasional tendency to address one another. It is striking that it took so long for the essays to migrate from the conference circuit to the printed page, but one reason may be that there was no sense of urgency here, for many of the contributions cover ground familiar from earlier work. Some of the essays are almost extracts from earlier work. Thus, Richard Primus gives a brief restatement of the functional account of rights he expressed at greater length in his 1999 book, The American Language of Rights. John Phillip Reid gives a very close restatement of his book on The Authority of Rights (1980). Barry Shain, the editor of this volume, expands on but essentially restates the position taken in his The Myth of American Individualism (1994). Akhil Amar largely restates the position he defended in The Bill of Rights (1998).

This is not to say that all the essays rehash older material or even that the rehashes are without merit. Indeed, it is a worthy collection for any reader wanting to catch up on some of the most important writings on rights in the past few decades. The collection is especially strong in giving us views of historians. It contains essays by some of our most prominent historians of the founding era—Gordon Wood, Jack Rakove, James Hutson, Daniel Rodgers—all of whom make valuable contributions. A reader will not see much of the recent philosophic thinking on rights, with only one essay, that by Leif Wenner and Stephen Macedo, venturing into that territory. The absence of philosophic thinking about rights is unfortunate for many of the historical essays would be improved by a sharper conceptual grasp of the rights idea.

Although the essays are disparate in character, there is one overriding theme more or less common to both those who like contemporary rights and those who do not—the “rights have changed” theme. All the essays in one form or another speak of such change. Beneath that commonality, however, is a much greater diversity in the way the starting point and the later points are described. Some see a shift from negative to positive rights. Some see a shift from communal and corporate to individual rights. Others speak of a shift from religiously grounded to rationally grounded rights. As the Introduction well says: “The contributors to this volume … certainly do not agree in all matters concerning the history of American rights” (p. 1). That same introduction, however, claims that despite the disagreements, there is a deeper “agreement reached by the contributors in finding that culturally accepted seventeenth- and eighteenth-century rights claims, with the exception of religious conscience, were not primarily individualistic” (p. 2).

That surely describes the position of the editor of the book; it does not in fact describe the position taken by all the contributors. Thus, for example, James Hutson traces the emergence and rise to dominance of a new kind of rights talk, based on Ockhamist nominalism. The new rights are “subjective rights.” As Hutson puts it, “this new species of right was subjective because power, its essence, was part of the individual subject…. A subjective right was an attribute of the subject” (p. 30). It was these subjective rights, says Hutson, that rose to prominence in the America of the founding era. A few other essays also escape this so-called consensus, including Rakove's on the Bill of Rights, Wood's on the “history of rights on early America,” and Rodgers's on “rights consciousness in American history.”

The editor, then, perhaps overstates the consensus, but the identification of a consensus actually misleads as to the book's most valuable feature—the very disagreement and the sharply argued presentation of quite different views on “the nature of rights at the American founding.”