A generation ago, in an essay on how history can serve political theory, Samuel Beer distinguished between history as past behavior and history as development. Political theorists can use history as past behavior to expand their scope of knowledge, to have a larger range of human experience available when they generalize about politics and morality. That the behavior studied occurred in the past is not relevant to the theorist who uses history strictly in this way; it is simply more data. When a theorist uses history as development, however, the temporal element is crucial. History as development tries to explain some state of affairs as having grown out of some previous state of affairs, under the influence of whatever forces might be relevant.

To examine the American practice of rights discourse, I use history both as past behavior and as development. Using history as past behavior, I draw on many uses of rights discourse in order to infer the rules and patterns of the practice. My aim with this use of history is to show that rights language in American politics is often a placeholder for substantive moral argument. It asserts that something is important and should be protected, but it does not give reasons why. Beyond showing this pattern, however, I aim also to show that Americans regularly use rights language to express their opposition to concrete problems or crises.