Mark Tushnet, The Rights Revolution in the Twentieth Century, in The Cambridge History of Law in America, v. 3, at 377 (Michael Grossberg & Christopher Tomlins eds., 2008).
Abstract: For most of U.S. history, Americans sought to vindicate their rights through legislative action. The rights revolution of the twentieth century expanded the number and nature of the claims that could be presented as claims about rights and added the courts to legislatures as important venues for appeals to rights. This chapter takes up the institutions of the rights revolution first, because those institutions were the preconditions for creating and, perhaps more important, for sustaining a rights revolution concerned with substance. But, of course, those institutions were inserted into a political and intellectual universe with its own features. The chapter also addresses a tension that became more apparent as the rights revolution advanced, the tension between individualist and collectivist understandings of rights. At the turn of the twentieth century constitutional rights were primarily property rights. Social welfare rights or entitlements, as they came to be called in the late twentieth century had a significant place in the rights revolution.