The Hollowing of Rights

The Two Halves of Freedom: Why “Formal Liberty” is Not Enough

We are often taught that rights are a single, fixed list, usually the civil and political protections in the US Bill of Rights, such as speech, assembly, and religion. However, as my experiences moving between South Africa and the United States have revealed, rights can be understood as two distinct yet interdependent species: the right to “freedom from” and the right to “freedom to.”

These represent the capability to avoid interference in one’s activities and the ability to pursue one’s interests, respectively. A democracy thrives only when both rights are united and exercised as capabilities. For instance, the capability of “freedom from” might involve expressing oneself without fear of repression. In contrast, “freedom to” includes tangible capabilities, such as the ability to remain housed or to seek medical care. The separation of these rights leads to a democracy that is hollow and ineffective.

• Civil and Political Rights (Freedom From): These are “negative rights” that impose restrictions on state power. The government cannot silence you, arrest you without cause, or stop you from voting. By anchoring these protections in the universal dignity of every individual, they create essential space for the development of full human capabilities. Such rights ensure that individuals can participate meaningfully in society, laying the groundwork for more substantive engagements with their communities.
• Socio-Economic Rights (Freedom To): These are “positive rights”: obligations on the state to provide the material basis for dignity. This includes the right to housing, healthcare, water, and social security. Imagine waking up in a society where these rights are realized: you start your day in a safe, affordable home without the looming threat of eviction. Healthcare is accessible and comprehensive, ensuring you can seek treatment whenever needed without financial ruin.

The Conflict of Rights

In a healthy democracy, these rights balance each other. But in the United States, they are often in conflict, and the system is rigged to favor one side.

We see this collision most clearly in the housing market. My landlord has a “negative right” to property: the freedom to use his building to extract profit without government interference. I have a “positive right” (in theory) to shelter: the freedom to live indoors and survive. In the US legal system, the landlord’s negative right to property almost always overrides the tenant’s positive right to housing. The law protects his freedom to evict over my freedom to survive. We prioritize the owner’s liberty to accumulate over the resident’s dignity to exist.

A striking representation of this imbalance exists in the data: annually, approximately 3.6 million eviction cases are filed in the United States, disproportionately affecting low-income families and minorities. In many urban areas, renters spend more than 30% of their income on housing, teetering on the brink of financial instability.

This creates a “hollow democracy” where you have the right to speak, but not the right to sleep indoors.

The South African Constitution attempts to bridge this gap by including justiciable socio-economic rights, acknowledging that political liberty is meaningless without effective liberty. As detailed in Metamorphosis, the tragedy of the post-apartheid era was the Implementation Gap: the political question of liberation was answered (we got the vote), but the economic question remained unanswered (we did not get the land or the wealth).

In the United States, we face the inverse tragedy: a rigid adherence to civil rights (speech/guns) while denying that healthcare or housing are rights at all. What explains the U.S. reluctance to name housing a right when global peers do? This question invites us to examine the deeply rooted structural causes of this condition rather than accept it as an inevitability.

When rights are “purchases” (things you only get if you can pay for them), they are not rights; they are privileges of the market.

The Core: Bodily Autonomy, Privacy, and Equality

The ultimate measure of a right is whether you own your own flesh. Bodily autonomy is the baseline of freedom. If the state can force you to carry a pregnancy, or force you to de-transition by banning your medication, you are not a citizen; you are a subject.

• The Biopolitical State: Governments are increasingly using “biopolitics” to categorize and control bodies. We see this in the legislative re-pathologization of trans lives, where the state ignores medical consensus (like the WHO’s depathologization of trans identities in ICD-11) to enforce a binary that erases human complexity. Research confirms the stakes: a 2022 study in JAMA Network Open followed transgender youth for a year and found that those who received gender-affirming care had 60 percent lower odds of depression and 73 percent lower odds of suicidality than those who did not. When the state bans this care, it is legislating harm.
• The courts have not been a reliable shield. In United States v. Skrmetti (2025), the Supreme Court upheld Tennessee’s ban on gender-affirming care for minors, allowing a state to withhold from trans adolescents the very medications it freely permits for other patients. Read that carefully: the law’s organizing principle is not the medicine but the patient. When a government can sort children into the treatable and the untreatable by identity, bodily autonomy is no longer a right; it is a demographic privilege.

I want to put a room around that abstraction, because bans on care are usually discussed as though they were arguments about medicine. They are not. They are decisions about who is worth the money.

Having run out of the private funds that had been buying me the privacy of a consulting room, I entered the public system, and on 14 February 2014, after eight months of waiting and testing, I stood in front of a panel of eight doctors at a state hospital. The psychiatrist who knew my case was absent. The head of endocrinology spoke for me, confirmed I was healthy, and recommended hormones immediately. Then the professor presiding over the panel said he disagreed. He looked at my body with clinical detachment and asked what I weighed. Before I could answer, he told me I would need to lose at least twenty-five kilograms before they would consider operating.

Then he made the proposal I have never been able to put down. He asked why they needed to put me on blockers at all, when removing the testes would be, in his words, more beneficial and cost-effective.

He was proposing to castrate me and withhold the oestrogen. Not out of cruelty, as far as I could tell. Out of budgeting. The cheaper intervention would suppress what the state found inconvenient without funding what I needed in order to live in my own body, and on a spreadsheet those two things occupy the same line.

This is what necropolitics sounds like at close range. It rarely announces that a life is worthless. It observes that a life is expensive, and proposes the discount.

• Privacy as a Shield: The right to privacy is crumbling under the weight of Surveillance Capitalism and state intrusion. Privacy is not just about hiding secrets; it is about the right to self-definition without the “cis-normative gaze” or the “white gaze” inspecting you for compliance.
• Equality Before the Law: This concept is being hollowed out by Administrative Violence. As seen in my battle with Home Affairs for an ID document, or a trans person’s struggle with the DMV, the bureaucracy can strip you of rights simply by refusing to recognize your existence. When a clerk can deny your identity because of a “missing stamp,” equality is theoretical, not actual.

The Weaponization of “Religious Freedom” and “Parental Rights”

We are witnessing a linguistic sleight of hand in which the language of rights is weaponized to enforce hierarchy.

• Weaponized “Religious Freedom”: Historically, religious freedom meant the right to worship without persecution. Today, it is increasingly interpreted as a “license to discriminate.” We see this in proposed HUD rule changes allowing taxpayer-funded shelters to deny access to trans people based on the provider’s religious views. This transforms a shield (protection for belief) into a sword (a right to exclude vulnerable people from public life).
• The Co-optation of “Parental Rights”: The Reproductive Justice movement, named in 1994 by a group of Black women organizers and carried forward by the SisterSong collective, in which Loretta Ross was a leading figure, defines true parental rights as “the human right to parent the children we have in safe and sustainable communities.” However, the current political right has co-opted this term to mean the right to control and censor. It is used to ban books, block access to historical truth (like the history of slavery), and deny life-saving healthcare to trans youth. According to PEN America, during the 2022-2023 school year there were 3,362 instances of book bans, disproportionately targeting stories about race and LGBTQ+ identities. This framing treats children as their parents’ property rather than as rights-bearing individuals.

The Work of Hope Practice: The Rights Audit

Goal: To move beyond the abstract “feeling” that things are getting worse and specifically identify which rights are eroding in your daily life, and how.

The Exercise: Review the three categories of rights below. For each, identify a recent change (legal, economic, or social) that has weakened this right for you or your community.

1. The Audit of the Body (Autonomy)

• The Right: To control what happens to your body (healthcare, identity, reproduction).
• The Threat: Is there a new law restricting care? Is there an insurance change making care unaffordable? (e.g., “My state banned gender-affirming care,” or “My insurance stopped covering reproductive health”).
• Status: [ ] Intact [ ] Eroding [ ] Gone

2. The Audit of the Wallet (Economic Dignity)

• The Right: To live without fear of starvation or homelessness (Housing, Fair Wage).
• The Threat: Has the cost of survival outpaced your wage? Has a public charge rule made your status conditional on wealth? (e.g., “Rent increased by 20% but wages stayed flat,” creating a loss of effective housing rights).
• Status: [ ] Intact [ ] Eroding [ ] Gone

3. The Audit of the Public Square (Civil/Political)

• The Right: To speak, vote, and exist in public without fear.
• The Threat: Has hostile architecture made public space unusable? Has gerrymandering devalued your vote? Has the “deputization” of the public (vigilantism) made you afraid to enter specific spaces? (e.g., “I avoid public restrooms due to fear of confrontation”).
• Status: [ ] Intact [ ] Eroding [ ] Gone

Reflection: Look at where you checked “Eroding” or “Gone.”

• Is the erosion coming from the Government (laws)?
• Is it coming from the Market (prices)?
• Is it coming from the Culture (neighbors/vigilantes)?

Action: Pick one eroded right. Who is the local official (School Board, City Council, Insurance Commissioner) responsible for that specific domain? Write their name down. This is your target for the Work of Hope.