Document Type
Article
Publication Date
4-23-2026
Rights
Abstract
A constitutional “right” is a legal technology designed to protect the weak from the strong. In the twenty-first-century United States, however, constitutional rights have increasingly been interpreted and deployed, by both litigants and courts, to secure the ability of the strong to dominate the weak. It is quickly becoming standard practice among right-wing American populists to claim that the deployment of rights in ways that limit the ability of the strong to dominate those weaker than themselves is to make victims of the strong. Freedom, in the imagination of American populists, means the freedom to dominate disfavored others.
This paper explores the concept of “domination” in the context of human rights regimes and the myriad ways in which right-wing American populists have attempted to read into the U.S. constitutional order, a right to dominate those they consider hierarchically subordinate. These claims fall into three categories. The first category consists of a claimed right to assert one’s dominant status performatively, through acts of aggression and provocation, to which others must passively submit. The second group consists of claims that the rights in question insulate the rights-holder from any negative consequences resulting from the assertion of that right. The third category focuses on the asymmetry of these rights claims: the Constitution entrenches my right to protect, defend, and enjoy my superior status, but denies you any right to elevate your inferior status.
I argue, throughout, that, although human rights regimes in liberal states might frequently be indifferent to private maltreatment of citizens, in no way can they plausibly be understood in the manner advocated by American populists: as conferring upon the strong a constitutional right to dominate the weak. The article concludes with some observations on how a constitutional regime of human rights might be structured to lessen the possibility of its co-optation by populists seeking to secure their ability freely to engage in private acts of domination.
Publication Title
University of Pennsylvania Journal of Law and Social Change
First Page
1
Last Page
49
Required Text
Penn Law: Legal Scholarship Repository © 2026
Recommended Citation
James A. Gardner,
My Right to Dominate You: The Populist Perversion of Human Rights,
29
U. Pa. J.L. & Soc. Change
1
(2026).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/1279