Disability rights,social rights,and freedom

The trouble with social rights

The linkage of disability rights to justice could arguably be traced back to a theorist who did not really say much about disability per se, but did much to shape the framework for thinking about rights for disabled persons, particularly in the United States and Britain, namely, the British sociologist John Marshall. His essay “Citizenship and Social Class” is often cited as a vital and even founding document for the idea of “social rights.” Marshall designated social rights as occupying a particular category, distinct from political and civil rights, pertaining primarily to economic aspects of “social life,” although these economic rights are arguably seen as coming from, and protecting, various individuals’ membership in a given society. Social rights pertained to a wide “range from the modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society”—an account remarkably similar to Jacobus tenBroek’s notion of “a right to live in the world” (Marshall, 1950: 11; tenBroek, 1966: 842). Accordingly, Marshall’s (1950) category has led many, particularly in the United States and Great Britain, to think of benefits like government old-age pensions and health insurance, as well as public assistance to poor families, as social rights (Marshall, 1950: 9-11). ³

In his essay, Marshall traces the ebb and flow of social rights, arguing that by the beginning of the nineteenth century, “the Poor Law [was] the aggressive champion of the social rights of citizenship” (Marshall 1950, 23). But this situation eroded by 1834, when market ideology won over the ideology of care for those in need: the origins of the benefits that he labeled social rights degenerated even beneath the notion of charity into stingy and punitive programs that

were detached from the status of citizenship. The Poor Law treated the claims of the poor, not as an integral part of the rights of the citizen, but as an alternative to them—as claims which could be met only if the claimants ceased to be citizens in any true sense of the word. (Marshall, 1950: 24)

Yet, Marshall concludes that it is possible to strengthen social rights and suggests that the mid-twentieth century (which was when he wrote the essay) was a time when social rights and citizenship were coming together and strengthening. Scholars since then interested in social progress have used the notion of social rights to try to broaden the base of rights and entitlements to a variety of social and economic goods. Disability programs are often included in this concept.

But I believe what Marshall’s analysis shows is that when rights are variable like this, they are subject to the political and moral values of a temporal majority that will likely change in the next generation to another set of values, resulting in turn in even greater variability in the relevant rights. I believe that it is precisely this fluctuation that challenges their status as rights per se, because they are highly dependent on discretionary state apparatuses.

A clear example comes from the United States. Compare, for instance, our old-age pensions, SS to SSDI and SSI, the latter two being the programs designated for disabled citizens in the United States. SS old-age insurance goes to everyone who attains a certain age and has “paid into the system” by engaging in paid work (although it is important to note that large numbers of SS recipients have never engaged in paid work, namely, stay-at-home wives). Once this condition is met—working (or marrying a worker)—all recipients have a right to retirement payments, as well as Medicare old-age health insurance. These are rights in the full sense: everyone of a certain age receives it, regardless of need, just as every citizen is entitled to vote when he or she reaches the age of 18 years and can (legally) drink alcohol at age 21 years. You might have an excellent pension, 401(k), or even still work for a salary, but you will receive your SS payments no matter how high the level of your income. Eligibility is straightforward: after all, your age is on your driver’s license. And the process as described on the Social Security Administration website is quite simple, you can apply online (Social Security Administration, 2014a).

Contrast this to what Americans call “welfare” or public assistance for poor mothers—formerly Aid to Families with Dependent Children (AFDC), which was replaced by Temporary Assistance for Needy Families (TANF) in the 1990s under the Orwellian named Personal Responsibility Work Opportunity Reconciliation Act (PRWORA) that was the keystone of “welfare reform” of the 1990s. TANF provides benefits that are “rights” in the sense that if your income falls below the poverty line and you are raising children, you qualify to receive the aid. At least, that is the idea. The reality is that the strict “means-testing” of would-be recipients entails an elaborate application process documenting your economic conditions—regular meetings with case-workers and, in the past, in-home visits (generally to single mothers to make sure there was no “man in the house” who could or should be contributing to child support). Additionally, a key part of PRWORA was that recipients of TANF are also required to participate in a variety of employment programs, which in many states simply took the form of minimum-wage jobs, often called “workfare,” in order to qualify for benefits, and benefits were generally limited to a maximum of 2 years (Mink, 2000).

As feminists have shown us, welfare “rights” construed this way are not properly “rights”: welfare is filled with administrative surveillance, mountains of paperwork, meetings with case supervisors, bureaucratic decisions about how you raise your child, and the status of your reproductive fertility. It is extremely discretionary, subjecting the individual to intense state surveillance and arcane bureaucratic requirements that seem designed to make applicants feel shame and humiliation. It is, along with more publicly visible welfare programs like food stamps, highly stigmatizing and is subjected to considerable public hostility: indeed, most Americans who do not receive welfare benefits really do not view it as a right, but as a privileged set of benefits that are based on need, specifically the need to care for children without a male breadwinner. Welfare is thus linked much more to notions of charity—even if it is a stingy and punitive charity—than to rights. Through such mechanisms it becomes, as T.H. Marshall puts it about an earlier era in Britain, not a right of citizenship, but an alternative to citizenship, as the condition for accepting welfare seems to be that you have to give up your equal standing as a citizen.

If we turn to the specific examples of SSDI and SSI, and how they are applied, we might expect a direct parallel between SS and welfare, respectively. Like welfare, SSI is means-tested; you must not only be disabled but also be below a certain income threshold to be eligible for payments. And like welfare, economic needs-based SSI pays inadequately, providing payments equivalent to 70% of the poverty level. Furthermore,

the standard for disability is also very severe … of all the individuals placed on the DI [disability insurance] rolls in a given year, one eighth die within two years. The proportion of individuals who die during their first six months on DI is fourteen times that of retirees during their first six months on the Social Security old-age insurance. (Weber, 2009: 600)

There are work incentives (as opposed to work requirements for single mothers receiving public assistance) that, for instance, allow you to keep US$1 of SSI for every US$2 you earn, thus reducing the amount of SSI you receive but increasing your income level; other incentives permit you to retain Medicaid if you work and earn under a certain amount (currently about US$1070 a month, more if you are blind) (Social Security Administration, 2014a, 2014b). Thus, although SSI might seem less punitive than welfare’s work requirements and “family caps” that penalize women who get pregnant while receiving public assistance, SSI shares with welfare the goal of reducing government subsidies while seeking to “help people with disabilities achieve independence by helping them to take advantage of employment opportunities” (Social Security Administration, 2014b). In this sense, however, in implicitly valuing the market as the sole measure of independence—the source of the income, rather than the amount, marks whether one is dependent or independent—both systems seek to demonize government subsidy as “dependence” rather than as a right to subsistence income. If, for instance, welfare and SSI were truly rights, then why could not “independence” come in the form of a monthly government check that permits recipients to live healthy and fulfilling lives, just as SS was intended to do?

SSDI thus might have more promise as a true “right” since it is not means-tested but is linked to an individual’s work history: like SS, receipt of SSDI depends on your payment into the system through income taxes. And income level measures are generally not applied in assessing eligibility. SSDI makes no consideration of other sources of income such as a spouse’s salary, investment income, or prior savings. ⁴ So SSDI should be just like SS—just as everyone who worked (or married a worker) is entitled to SS once they reach a certain age, everyone who worked a sufficient number of years is entitled to SSDI if they become unable to work through disability (although like SS, the benefit is linked to their income level during their work history, since up to the maximum of US$117,000, after which SS taxes do not increase, people earning lesser amounts in wages earn lower amounts in benefits). ⁵

Although there is no financial means-testing for SSDI, there is of course a “disability testing” just as there is for SSI; as most disability scholars know, disability is often a matter of interpretation. In this case, the state must determine whether you are really disabled, and this determination puts the burden of proof on the applicant: you must prove that you are disabled and thereby unable to work. The “need” may not be a strictly economic one—although the reality of SSDI is that it is often logically bound to be economic, if the applicant’s primary source of income used to be paid work which she can no longer perform because of the disability. But it is the disability itself that establishes the need per se. And this, as in income-based programs such as SSI and welfare, means that the recipient is subject to the same kind of strict state scrutiny, ongoing surveillance, and its accompanying suspicion and, often, humiliation that welfare recipients are subject to. The documentation to establish eligibility is generally time-consuming and burdensome (although the degree of difficulty can vary from state to state) (Burkhauser et al., 2001) ⁶ involving considerable invasion of privacy that creates an “adversary climate that envelops the physician, the patient-claimant, and the administrators” (Hadler, 1982: 665–669). For employer-paid disability insurance, and particularly for worker’s compensation, investigators often check up on recipients’ doctors’ visits and even video-record them when they leave the house (Edelstein, 2011). And of course when private insurance companies do this and find what they believe to be fraud, such findings would normally be reported to the government. So even if the government itself is not engaging in such extreme surveillance tactics, as Foucault points out it is the belief or concern that one is being watched that causes the individual to regulate his or her own behavior. The ease with which discourses of fraud proliferate in the news and political discourse may particularly create such anxiety among persons whose disabilities are not readily visible to others, such as those in severe pain who struggle every day to function by “working through” the pain (Foucault, 1977; Hirschmann, 2015).

Thus, both SSI and SSDI are more like welfare than SS, and again fit Marshall’s distinction between a right of citizenship and an alternative to citizenship, as accepting disability insurance seems to compromise one’s equal standing as a citizen. As Nancy Fraser (1994) has suggested, it is the conceptual apparatus of “need,” with its accompanying conceptual partner, “dependency,” that makes such “social rights” so subject to discretion (1994: 309–336). Need is always a political construction because it always links to desert, and desert is subjective and discretionary: the language of the “deserving” and “undeserving” poor goes back to Elizabethan poor laws of the late sixteenth and early seventeenth centuries and carries through to poor law debates in the United Kingdom in the nineteenth century and to the pillorying of “welfare queens” in the 1980s and 1990s United States along with the rise of punitive “workfare” laws and “family caps” (Hirschmann, 2001; Stone, 1984).

The trope of the “deserving” and “undeserving poor” takes similar forms with disability: the question is not simply whether one has economic need, but rather whether one is “truly” disabled (Slobodien, 2013). And that, as it often does in welfare, extends the demonization of “need” to “fraud”; the culture of radical individualism turns needs into fault and from there into crime. Much as welfare reform took as its target the “Black welfare queen” who seeks to become wealthy off the state by having too many children who she then ignores—completely ignoring the evidence that the vast majority of welfare recipients were white and received benefits for less than 2 years on average, generally cycling on and off for months at a time—assumptions are often made that disability insurance claimants are practicing fraud. Yet this, too, “interprets” the facts in particular ways and uses a few sensationalized cases as a stand-in for the norm.

For instance, in the recent “great recession” of the first decade of the twenty-first century, application for SSDI payments in the United States went up a lot. Almost immediately, despite the statistics I cited earlier in this essay concerning the severity of the standard for disability in order to receive insurance—that one-eighth of recipients die within 2 years after being placed on disability insurance, and “the proportion of individuals who die during their first six months” of being placed on disability insurance is 14 times that of retirees during their first 6 months receiving SS (Weber, 2009: 600)—the press jumped on stories of disability fraud, the assumption being that people who could not get jobs were claiming disability to avoid work. Senator Tom Coburn related an apocryphal story of hiring a man to complete tree pruning work for him, who then asked him to make payment in the form of a check to the man’s mother, because he was on disability, leading to an 18-month investigation that claimed 25% of cases reviewed revealed “insufficient, contradictory, or incomplete” documentation of the disability (Trueman, 2012). Stories on National Public Radio shows “Planet Money,” “This American Life,” and “All Things Considered” as well as the television show “Sixty Minutes,” although highly controversial and criticized for misreporting key facts, became part of the public discourse over disability (Joffe-Walt, 2013; Peralta, 2013).

What such stories and claims ignored was that disabled employees, who suffer much higher rates of unemployment even in good economic times, disproportionately became unemployed because of the recession (Stone, 2013). In assuming that recipients of disability insurance are cheats who want something for nothing, the resentment of nondisabled workers who are tired of working so hard and failing to get ahead is directed toward those who are unable to work, instead of being directed at the appropriate targets of corporate America and the driving forces behind the extreme growth in differences between wealth and poverty. Michael Prince (2008) has made similar observations about the Canadian Pension Plan—Disability (2008: 28–46). Samuel Bagenstos (2009) indeed goes so far as to argue that the ADA itself was not a civil rights act, as its proponents claim, but rather a “welfare reform act,” developed to the end of reducing the number of citizens on public assistance of any kind and pushing them into the labor force, just as PRWORA and TANF did (2003: 954).

Justice versus freedom

I suggested earlier that these sorts of difficulties with disability rights are linked to being based on a justice orientation. Ever since Aristotle, justice has been tied to the notion of “desert.” There is a tacit underlying assumption that in a just world people get what they deserve, and such assumptions shape our conclusions about just entitlements. And because we hold prejudicial attitudes about the inferiority of disability—something to be feared and hated, a reminder of the fragility of our own bodies—the demand for justice unavoidably replicates and depends on the able-bodied view of the disabled as “injured,” diminished, lacking, less (Corker, 2001: 34–52; Siebers, 2008; Thomson, 1997). Justice is always a remedy for injury. It claims to be about improved futures, but it is logically, perhaps inevitably, really about the redress of past injury. So the rights claimer becomes an example of Nietzsche’s ressentiment, the injured seeking redress. Hence, the reason for the surveillance and the hysteria about fraud is that such people really don’t “deserve” the resources; the trope of the deserving and undeserving poor that has characterized welfare poverty relief programs takes on a similar valence in disability rights.

This is exactly what disability scholars and activists have been fighting against for the past 40 years. The redress that disabled individuals seek entails the rearrangement of social arrangements that favor certain kinds of bodies at the expense of others; it is not about bringing the able-bodied “down” to the “level” of the disabled, as Nietzsche would frame it. It is about recognizing the diversity of bodies and the need to arrange social institutions to accommodate those bodies. That may sound like a struggle for justice, and it is to some extent. But it is even more fundamentally a struggle for freedom.

Again, the United States offer key examples, as Supreme Court interpretation of the original ADA supports my assertion. The Court created a catch-22 with its interpretation of the act: if the employee was able to meet the exceedingly high standard of disability that the courts determined, then they were too disabled to hold the job anyhow; but if they did not reach that level, then they were not disabled enough to need accommodation. This is apparent in two of the earliest Supreme Court cases involving the ADA. In Sutton v. United Air Lines, two sisters who were regional pilots had an extreme form of myopia that affects only 2% of the population; this impairment was corrected by eyeglasses, but they were denied employment by United Airlines when they applied for jobs as global airline pilots on the basis that it requires such pilots to have 20/100 uncorrected vision. They sued for disability discrimination; if someone with 20/100 vision corrected by glasses could be hired, why not 20/200? They were being denied the job because of their uncorrected vision. However, the Court declared that because their vision was corrected by glasses, they were not disabled and therefore had no standing. Yet, it was precisely because of their vision impairment that they were denied the job (Sutton v. United Air Lines, Inc., 1999).

In Toyota v. Williams, Williams developed carpel tunnel syndrome due to the repetitive motions that she had to make building car engines. She was reassigned to an inspection team that normally performed four tasks, and she had to do two of them. After 2 years, during which time she performed those two tasks ably and her symptoms were kept in check, she was required to perform all four tasks, which made her carpal tunnel problems return. She sued under the ADA. The argument made by Toyota, and accepted by the Supreme Court, was that she was not disabled during the time that they made the reassignment, that is, the accommodation removed her disability, and therefore she was no longer entitled to the accommodation. But what is not clear from the Court’s reasoning is, once the disability returned, why could not Toyota make the same accommodation again and reassign her to the two tasks she performed before?

The answer goes back to justice and the matter of dessert. In Sutton, Sandra Day O’Connor, writing for the majority, likened impairments to “one’s height, build, or singing voice” all of which would qualify some people for certain jobs but not others. As long as the impairment did not rise to the level of a “disability,” the employer could hire whomever she wanted with whatever physical attributes she felt was necessary to do a good job, just as someone might hire a friendly outgoing applicant for a sales job over a quiet or surly one. This, is seems to me, explains a lot about the practical failure of the ADA in affecting employment opportunities for disabled persons: O’Connor is saying that you do not have a right to any job that you cannot perform with the impairment regardless of accommodative or corrective devices like glasses: you do not deserve it because the matter of dessert is determined by the employer. Similarly, Williams was not being prevented from working per se, in the Court’s view; she was simply unable to do the job she had, so she should try to find another one that fit her abilities, much like a singer who loses her voice has to find another line of work. Williams did not deserve a position she was unqualified for. As O’Connor said,

An employer is free to decide that physical characteristics or medical conditions that are not impairments are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job. (Toyota v. Williams, 2002)

The Court’s invocation of the freedom of the employer in these cases, however, completely obscures the freedom of the worker. Remember that the Sutton sisters were able to fly planes—they were regional pilots after all—but the airline decided that hiring them for international flights would pose a safety risk. The Suttons claimed that was a discriminatory attitude that blocked them from being hired for a job they wanted and could perform. But according to the Court, the freedom of the Sutton sisters was not impeded. They were free to do what they were able to do; but United Airlines, not the Suttons, got to define “ability” by defining the requirements of the job. Similarly, Williams could do the two tasks she had done for 2 years, but Toyota decided that her job included other tasks that she could not perform. In both cases, the Court gave the employer the right to define the parameters of “ability” and so they did not violate the Suttons’ or Williams’ rights or freedom.

By focusing on the freedom that disabled persons are seeking in these cases, we can see that justice is at issue because these persons with disabilities are prevented from doing things they wish to do and are capable of doing if certain externalities are changed—the flexibility of the production line in Williams, the rationale of United’s policy in Sutton. The focus on externalities is in keeping with the “social model” of disability, the idea that although bodies may have specific impairments—such as myopia or carpel tunnel—what turns those impairments into disabilities is the social environment. For instance, wheelchair users unable to access a building that does not have a ramp entrance or elevator are not disabled because they use the wheelchair per se, but rather by the architecture of the building, or what is often called the “built environment” (Shakespeare, 2013). Such arguments cohere with standard liberal models of “negative liberty” that Isaiah Berlin made popular in the mid-twentieth century: freedom is limited by external barriers and obstacles that block the individual from pursuing what she wants.

But my point about the centrality of freedom to disability rights is not meant to suggest that freedom and justice are opposed, or that we should abandon justice when thinking about rights. Rather I am suggesting that justice is relevant to rights when disabled individuals are blocked from doing perfectly normal and reasonable things that they want, such as to earn a living, go to school, get into a building, use public transportation, work, play, “to live in the world,” as tenBroek puts it. What makes something unjust entails the inhibition of people’s liberty in various ways and theories of justice intend to compensate for, if not overcome, the unequal distribution of freedom that results from such inequalities of ability. In fact, Rawls’ (1971) first principle of justice states, “Each person has an equal right to the most extensive scheme of equal basic liberties which is compatible with a similar scheme of liberties for all” (1971: 52). This equal right to liberty as the animating principle of justice suggests that other resources such as money and power may be means to freedom, but freedom is the purpose or endpoint of justice.

That, indeed, is what the ADA was originally designed for. Granting that the desire of disabled people who wanted to hold jobs dovetailed with conservative capitalist goals of reducing government responsibility, the desire to work is not thereby illegitimate or cooptation. Marx himself argued that work is the most fundamental of human characteristics, essential to humanity, what he objected to was the way it was treated under capitalism. But work was not the only goal of the ADA and other disability policies; they also sought to respect the freedom of disabled persons to go to restaurants and theatres, have access to common carriers, without having to deal with unnecessary obstacles put in their way.

Certainly, the connection between rights and freedom is fairly common among rights scholars, although not always in a positive direction. Indeed, some of the literature linking freedom and rights see them as opposed: that A’s rights to X violate B’s freedom to Y, such as in cases where protecting intellectual property conflicts with the public’s use of information, such as when Myriad Genetics tried to patent the human genome, a move that would have seriously undermined many scientists’ ability to pursue their research, not to mention various people’s protection of their health (Franklin and Reichman, 1998: 876–970). More common is the positive linking of freedom and rights: to have a right is to have a freedom. Theorists, philosophers, lawyers, and political leaders ranging from Gerald Gaus (1994: 209–240) to Prasanta K. Pattanaik (1994: 731–734), Amartya Sen (1999), John McGinnis (1998–1999: 1029), Rex Martin (2013: 99), Henry Shue (1980: 65–67), and former UN Secretary General Kofi Annan (2005) have all closely linked freedom and rights. So my claim might seem rather unoriginal.

But the problem that I am identifying has a particular valence with regard to disability rights, which is what makes it relevant to put in these terms. As I indicated earlier, Marshall noted that at different points in history, social rights were used to diminish citizenship or presented an alternative to citizenship: by accepting the social right, you gave up a certain degree of your standing as a free and equal citizen. But from a disability perspective, it seems more accurate to say that what we have called “social rights” are created for people who already are deemed noncitizen. That is, you don’t lose your citizenship when you access SSDI: you lost it when you had that car accident and the use of your legs; you lost it when you injured your back lifting that crate that caused you to lose your job; or you lost it when you were born with one arm, just as women still are not citizens in many parts of the world simply by virtue of being born female. That is what SSI and SSDI are for in effect: noncitizens. Certainly, the technical limitation to my argument here is that recipients may often in fact be legally deemed citizens (although legal immigrants are in some cases eligible for a variety of social security programs), but morally they are designated as less, as not full or true members. We have never gotten beyond the origins of disability and poverty assistance in charity; it has never been treated as a true right.

This suggests that Marshall’s schema setting out this distinct category of “social rights” is problematic for disability because the things he designates as social rights, such as subsistence income, are not in fact “social” at all; rather, they are intensely political. As Marx saw, not being able to earn a living wage is the most political problem that humans face in capitalist society. And keeping disabled persons out of the workforce is political enough to have led a conservative Republican Congress and president to enact the ADAAA to overcome Supreme Court’s blockage of the Congressional intention behind the original ADA, which was to make it easier for disabled persons to leave public assistance and enter the labor market. But even beyond that, providing an adequate income to people who cannot work is even more politically important because it disaggregates citizenship and capitalism, whereas the ADAAA intrinsically links citizenship to capitalism, by making work an essential category of citizenship. SSI and welfare recognize the limits of the capitalist marketplace to address significant proportions of democratic populations, such as parents of small children—not to mention children of poor parents—and persons with certain kinds of disabilities. So, I worry that there is a certain short-sightedness to setting aside these kinds of disability rights in a special category of “social rights.” What we gain by holding onto Marshall’s typology of social versus political or civil rights seems dubious; what we lose by it has been shown by history.

Indeed, I would go so far as to say that social rights of disability, like SSI and SSDI, are not treated as rights at all. Whether one considers a right in the traditional Dworkian sense of a trumping claim against others or Brooke Ackerly’s more forward-looking notion of rights in her essay for this special issue as something we “enjoy,” the whole point of “rights” is that they are not discretionary. So, the fact that something may be called a right in the technical sense of laws that specify conditions that, if met, trigger an entitlement cannot lead us to ignore that when it comes to disability, the practice is so rife with exceptions, burdens, and arcane bureaucracy as to not be a right at all. We need a different name for such practices. I suggest that instead we call them “state concessions.”

On my terminology, SS is a right: it brooks no dispute. But disability benefits, like SSDI and SSI, on this model are really treated as concessions by the state rather than rights—indeed, begrudging concessions. State concessions, as I am suggesting we use the term, always entails specific knowledge about the subject who claims the entitlement and requires others to make discretionary judgments about the subject, whereas rights are by their nature more universal and impersonal. Hence, despite the lack of income-based means-testing for SSDI and the fact that eligible recipients have “paid into the system” through salaried work, much like SS, SSDI requires the same sort of strict surveillance and scrutiny as SSI, and SSI itself pays inadequately to permit disabled persons to live what most would consider a good, full life. State concessions are seen as requests for assistance, special treatment, which requires you to know who is asking. This terminology makes explicit that, at least in the United States, we have never gotten beyond the origins of disability and poverty assistance in charity, and the notion of charity, with its frequent flavor of begrudging and moral judgment of the inferiority of recipients, certainly complements the notion of “concession.” But these things have never been treated as a true right.

This might suggest that I sympathize with those disability theorists and activists who favor a civil rights approach to a social rights approach, such as those who were involved in passing the ADA and ADAAA. But I believe that there are problems with the civil rights approach as well that run against disability interests, such as its insistence on sameness and its ignorance of difference (Sulmasy, 2009). Disabled persons are not only different from other identity categories that civil rights benefit, such as race and gender; they are often so different from each other that even the category “disabled persons” is problematic. Rather, formulating my suggestion as being about how to conceptualize rights in a theoretical frame is what leads me to the contrast between freedom and justice. Does that mean that justice is irrelevant? Not at all; indeed, I have already referred to their close alliance. Rather, my argument is a theoretical and political one about how thinking about disability rights should proceed. When we think of disability rights, we should start from the perspective of freedom: doing so will not eliminate conflicts or resolve tensions any more than justice does. But justice could then enter into the discussion as we think about how to address those conflicts and tensions. For instance, when someone like Peter Singer considers the question of allocating resources to a severely disabled infant, the fact that he takes justice first and freedom second leads to a situation where the infant’s claim to freedom never even gets started: because the allocation of resources is unjust in his utilitarian calculus, she is not entitled to make her claim to freedom (Hirschmann, in press; Kuhse and Singer, 1985). By contrast, starting with the infant’s claim to freedom allows justice to enter into consideration of how others’ competing demands for freedom can be reconciled. That might direct our answer to a different solution: rather than focusing on how to allocate the existing limited resources, we might be turned to consideration of why those resources are so limited, when others such as military spending and corporate profit seem to be so unlimited by comparison (Hirschmann 2009). When justice is seen as the foundation and the only relevant concept in thinking about disability rights, as is often the case in both philosophical and legal discourses, that ensures that disability rights will encounter a variety of problems that take everyone’s eye off the ball of seeing disability rights as fundamental human rights, because it entails the automatic lesser valuation of the disabled persons themselves. If we instead start our thinking about disability rights from a perspective of freedom as a foundation on which to base whether a right exists, and what the right is to, we can use justice to figure out fair and inclusive ways to enact that right. But justice needs to be subordinate to freedom when we think about disability rights. Doing that would truly make disability a new direction in human rights.