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How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart – A Renowned Legal Scholar's Paradigm-Shifting Analysis of Race, Law, and Justice
AMERICAN ASSOCIATION OF PUBLISHERS PROSE AWARD FINALIST | “Essential and fresh and vital . . . It is the argument of this important book that until Americans can reimagine rights, there is no path forward, and there is, especially, no way to get race right. No peace, no justice.”—from the foreword by Jill Lepore, New York Times best-selling author of These A History of the United States An eminent constitutional scholar reveals how our approach to rights is dividing America, and shows how we can build a better system of justice. You have the right to remain silent—and the right to free speech. The right to worship, and to doubt. The right to be free from discrimination, and to hate. The right to life, and the right to own a gun.
Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting—reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.
As renowned legal scholar Jamal Greene argues, we need a different approach—and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.
Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting—reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.
As renowned legal scholar Jamal Greene argues, we need a different approach—and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.
336 pages, Paperback
First published March 16, 2021
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Displaying 1 - 30 of 69 reviews
March 16, 2021
Interesting Yet Ultimately Self-Serving Take On Rights. This book presents as an interesting and novel (at least in an American sense) take on rights - namely, that they are not absolute and should be mediated by government actions. Greene claims that this would ultimately result in less polarization, though he seems to ignore large swaths of what has led to the polarization currently facing America when making such claims. Still, even though blatantly written from a leftist perspective, the book mostly presents its theory in a reasonably well-reasoned approach and thus adds enough to the overall conversation that it should be considered. Ultimately, though, it becomes clear that Greene's entire premise of mediated rights is less a matter of principle or proposing a novel theory or (as he claims) more aligning American jurisprudence with that of much of the rest of the world and much more about defending Big Academia's right to discriminate against the disabled and against certain races, and to control speech in a totalitarian manner. It is this realization - very blatant in the closing chapters, particularly when discussing Affirmative Action and campus speech codes - that ultimately considerably detracts from the overall merit of the proposal, and thus dramatically weakens the entire argument. Recommended.
August 23, 2021
This is one of the most important nonfiction books I've read in a long time. Greene isn't just teaching me details of something I already know the shape of, he's up-ending how I think about the rights and the U.S. courts; the book is really turning my brain around, and I find myself thinking about it in so many contexts.
His basic contention is that America, unlike most other countries, treats rights as a zero-sum game: if you have the right to have a baker bake a cake for your wedding, then the baker has no rights to his own choice of customers. If I have the right to an abortion, then my unborn child has no rights whatsoever. This is so baked into how we see rights that it's very difficult to un-see; however, Greene offers many examples and very persuasive explanations. The framework he advocates is (basically) that rights be treated as much more universal and simultaneously much more specific.
One salient example he gives is of a woman in small-town Germany who sued for her rights to feed the pigeons in the public park. In the U.S., this would be thrown out instantly, since the Constitution says nothing about feeding pigeons, and people who want to feed pigeons are not a "protected class." In Germany, according to Greene, the basic assumption is "of course she has the right to feed the pigeons until and unless the court is convinced that the state has a compelling reason to prevent her from doing so." In this case, the court did decide that the state (city government) had a compelling interest, because of the ways pigeons spread disease and because of their nuisance value. So the same results, stemming from completely different underlying assumptions.
The difference in assumptions, Greene says, decrease polarization, specifically because they require negotiation, and because even the loser in the adjudication is not told that she/he/they have zero rights, just that in this case they didn't prevail. He takes this argument through various race-based cases, through abortion (comparing the US with Germany), through disability rights (comparing the US with Canada), and through campus speech. Each case study is detailed, well-researched, and very well written. He also provides a lot of historical analysis, making his case for why what we have now is not what the Framers had in mind, and walking us through how we got here.
Is he right? I kind of think so, but I will need some time to be sure. Could the US change this perspective, or even start changing it? That's a heavy lift; all of our judges, regardless of party affiliation, have been trained to think this way, as have all of our lawyers and pretty much all of us.
This is a book that everyone interested in U.S. jurisprudence, U.S. polarization, the U.S. Bill of Rights, and/or anything else about how we think about rights in this country should read. Soon.
His basic contention is that America, unlike most other countries, treats rights as a zero-sum game: if you have the right to have a baker bake a cake for your wedding, then the baker has no rights to his own choice of customers. If I have the right to an abortion, then my unborn child has no rights whatsoever. This is so baked into how we see rights that it's very difficult to un-see; however, Greene offers many examples and very persuasive explanations. The framework he advocates is (basically) that rights be treated as much more universal and simultaneously much more specific.
One salient example he gives is of a woman in small-town Germany who sued for her rights to feed the pigeons in the public park. In the U.S., this would be thrown out instantly, since the Constitution says nothing about feeding pigeons, and people who want to feed pigeons are not a "protected class." In Germany, according to Greene, the basic assumption is "of course she has the right to feed the pigeons until and unless the court is convinced that the state has a compelling reason to prevent her from doing so." In this case, the court did decide that the state (city government) had a compelling interest, because of the ways pigeons spread disease and because of their nuisance value. So the same results, stemming from completely different underlying assumptions.
The difference in assumptions, Greene says, decrease polarization, specifically because they require negotiation, and because even the loser in the adjudication is not told that she/he/they have zero rights, just that in this case they didn't prevail. He takes this argument through various race-based cases, through abortion (comparing the US with Germany), through disability rights (comparing the US with Canada), and through campus speech. Each case study is detailed, well-researched, and very well written. He also provides a lot of historical analysis, making his case for why what we have now is not what the Framers had in mind, and walking us through how we got here.
Is he right? I kind of think so, but I will need some time to be sure. Could the US change this perspective, or even start changing it? That's a heavy lift; all of our judges, regardless of party affiliation, have been trained to think this way, as have all of our lawyers and pretty much all of us.
This is a book that everyone interested in U.S. jurisprudence, U.S. polarization, the U.S. Bill of Rights, and/or anything else about how we think about rights in this country should read. Soon.
March 26, 2021
About two weeks ago I saw an opinion piece by Jamal Greene about rights and vaccination which was a promo for his book which was just about to be released. I rarely buy books, or much of anything, based on a single opinion piece or review, but this looked very interesting, particularly since I have long had a semi-professional interest in rights and justice, so I ordered a copy. It did not disappoint.
The book is written in a very easy-to-read manner. There are nine chapters, three each in three sections. The first section lays out the argument. The other two sections are somewhat distinct from each other, but broadly, they both cover applications of the ideas to particular topics and judicial cases.
The core idea of the book starts with the recognition that when courts face competing rights they have three available strategies: minimize rights, discriminate among rights, or mediate among them. Greene argues that in the U.S. the dominant strategy is to discriminate among rights, hold a few rights almost sacrosanct, and thus putting little value on many other rights, but that in much of the rest of the world the dominant strategy is mediation. He further contends that the mediation approach offers a number of social benefits, while the discrimination approach is causing some of the litigation problems that our nation is enduring. I find this core argument very attractive and offering a great deal of potential. Even if there was nothing else in the book, simply exposing yourself to this line of thought would be worth the price of it.
I am not sufficiently familiar with SCOTUS cases to evaluate Greene's analyses of past cases, but they at least seem solid to me, and I trust in his experience as a former law clerk for Hon. John Paul Stevens, Yale Law School degree, and current status as a Professor of Law at Columbia Law School. The threads of legal history in the book were interesting to read.
In my view a right is a justice claim. It is curious that, after reading Greene's book, in which rights are the central concept -- he even has a chapter on "Rightsism" -- it isn't entirely clear to me what a right is in his view. He comes into talking about rights with specific examples rather than laying out a definition. At what point (p.92) he suggests that a right may be anything that makes a person's life meaningful, or maybe he is only saying that is what a right is in Europe. Unclear.
I found some of the topics Greene chooses to illustrate his argument somewhat peculiar. Chapter Nine is on free speech, and Greene seems, to my sensibility, too willing to sacrifice free speech for "civility". In my view enforcements of "civility" are almost always exercises in oppression. He also seems to have different standards for progressive free speech than the free speech of, say, Nazis and overt racists.
One of the middle chapters focuses on the impact of the American approach on polarizing abortion in the United States. He contrasts the US history on abortion against that of Germany and suggests that the far less polarized German outcome is a result of the difference between US courts discriminating between rights versus German courts mediating among them. I wonder if the polarization is not more directly due to the US having an electoral system that has exactly two dominant parties, whereas there are several major parties in Germany. That difference alone might explain the polarization in the US and the need to work with other parties in Germany.
Moreover, I came away from that chapter wondering whether the German situation was preferable. Ok, so there is less polarization, but that comes with the idea that a fetus has political rights, which seems rather absurd. How can a fetus, lacking any social relations, except possibly to its mother if being in utero is a *social* relation, have rights? Only, like a corporation or an object to relations among other people. Moreover, if fetuses have rights, but abortion is just as available, or more so, then what does it mean to say they have rights? The argument seems to imply that courts in Europe and other parts of the world recognize rights, but then make legal decisions based mainly on other facts, suggesting that rights as such have little meaning there. It makes sense to mediate among rights, but it seems silly to say that a right exists, e.g. the right of a fetus to be born, if that right is almost never going to prevail over and against other rights, e.g. the rights of the mother. What kind of a justice claim is that? It seems more straightforward to just say that the mother has the right.
His next chapter delves into the wedding cake bakers vs. gay couples getting married topic, again with comparisons between US and European or British courts. This also seems to me a weak choice of example, because I think religious objections should apply (1) only to individuals, not corporations, and (2) only to situations where it would require a person to engage in a type of action contrary to their religious beliefs. If you make cakes, you make cakes. Who the customer is. What message the customer puts on the cake is in no way a change in your behavior as a maker of cake. You aren't being asked to do anything that you don't already do for all of your customers. Greene says it "was a hard case", but it seems like it should be an absurdly simple case.
Chapters Seven on Disability is especially good, and Chapter Eight on Affirmative Action is also strong. One of the most interesting tangents I took from the book, in the section "Color Blindness and the Constitution", starting on p.199, concerns how the standards SCOTUS uses for structural inequalities and the standard it uses for their remedies are very different. There is, in effect, no standard for structural inequalities. The SCOTUS approach to structural inequalities is that they are not unconstitutional. Conversely, the standard for remedies almost precludes there being any remedy, because actions that take race into consideration are seen as racism even if structural inequalities are not. In effect, Greene is showing that very schemes that the Supreme Court of the United States uses to assess Constitutionality are themselves systemically racist. He is calling the SCOTUS institutionally racist, and he would seem to be right.
Different views on the underlying principles of abortion and religious freedom cases notwithstanding, I think this book makes an extremely interesting and useful point that shows one of the key ways in which the U.S. justice system has gone astray, making it challenging to render a good approximation of justice, and how it might be remedied, if we pay attention and have the political will to do so.
The book is written in a very easy-to-read manner. There are nine chapters, three each in three sections. The first section lays out the argument. The other two sections are somewhat distinct from each other, but broadly, they both cover applications of the ideas to particular topics and judicial cases.
The core idea of the book starts with the recognition that when courts face competing rights they have three available strategies: minimize rights, discriminate among rights, or mediate among them. Greene argues that in the U.S. the dominant strategy is to discriminate among rights, hold a few rights almost sacrosanct, and thus putting little value on many other rights, but that in much of the rest of the world the dominant strategy is mediation. He further contends that the mediation approach offers a number of social benefits, while the discrimination approach is causing some of the litigation problems that our nation is enduring. I find this core argument very attractive and offering a great deal of potential. Even if there was nothing else in the book, simply exposing yourself to this line of thought would be worth the price of it.
I am not sufficiently familiar with SCOTUS cases to evaluate Greene's analyses of past cases, but they at least seem solid to me, and I trust in his experience as a former law clerk for Hon. John Paul Stevens, Yale Law School degree, and current status as a Professor of Law at Columbia Law School. The threads of legal history in the book were interesting to read.
In my view a right is a justice claim. It is curious that, after reading Greene's book, in which rights are the central concept -- he even has a chapter on "Rightsism" -- it isn't entirely clear to me what a right is in his view. He comes into talking about rights with specific examples rather than laying out a definition. At what point (p.92) he suggests that a right may be anything that makes a person's life meaningful, or maybe he is only saying that is what a right is in Europe. Unclear.
I found some of the topics Greene chooses to illustrate his argument somewhat peculiar. Chapter Nine is on free speech, and Greene seems, to my sensibility, too willing to sacrifice free speech for "civility". In my view enforcements of "civility" are almost always exercises in oppression. He also seems to have different standards for progressive free speech than the free speech of, say, Nazis and overt racists.
One of the middle chapters focuses on the impact of the American approach on polarizing abortion in the United States. He contrasts the US history on abortion against that of Germany and suggests that the far less polarized German outcome is a result of the difference between US courts discriminating between rights versus German courts mediating among them. I wonder if the polarization is not more directly due to the US having an electoral system that has exactly two dominant parties, whereas there are several major parties in Germany. That difference alone might explain the polarization in the US and the need to work with other parties in Germany.
Moreover, I came away from that chapter wondering whether the German situation was preferable. Ok, so there is less polarization, but that comes with the idea that a fetus has political rights, which seems rather absurd. How can a fetus, lacking any social relations, except possibly to its mother if being in utero is a *social* relation, have rights? Only, like a corporation or an object to relations among other people. Moreover, if fetuses have rights, but abortion is just as available, or more so, then what does it mean to say they have rights? The argument seems to imply that courts in Europe and other parts of the world recognize rights, but then make legal decisions based mainly on other facts, suggesting that rights as such have little meaning there. It makes sense to mediate among rights, but it seems silly to say that a right exists, e.g. the right of a fetus to be born, if that right is almost never going to prevail over and against other rights, e.g. the rights of the mother. What kind of a justice claim is that? It seems more straightforward to just say that the mother has the right.
His next chapter delves into the wedding cake bakers vs. gay couples getting married topic, again with comparisons between US and European or British courts. This also seems to me a weak choice of example, because I think religious objections should apply (1) only to individuals, not corporations, and (2) only to situations where it would require a person to engage in a type of action contrary to their religious beliefs. If you make cakes, you make cakes. Who the customer is. What message the customer puts on the cake is in no way a change in your behavior as a maker of cake. You aren't being asked to do anything that you don't already do for all of your customers. Greene says it "was a hard case", but it seems like it should be an absurdly simple case.
Chapters Seven on Disability is especially good, and Chapter Eight on Affirmative Action is also strong. One of the most interesting tangents I took from the book, in the section "Color Blindness and the Constitution", starting on p.199, concerns how the standards SCOTUS uses for structural inequalities and the standard it uses for their remedies are very different. There is, in effect, no standard for structural inequalities. The SCOTUS approach to structural inequalities is that they are not unconstitutional. Conversely, the standard for remedies almost precludes there being any remedy, because actions that take race into consideration are seen as racism even if structural inequalities are not. In effect, Greene is showing that very schemes that the Supreme Court of the United States uses to assess Constitutionality are themselves systemically racist. He is calling the SCOTUS institutionally racist, and he would seem to be right.
Different views on the underlying principles of abortion and religious freedom cases notwithstanding, I think this book makes an extremely interesting and useful point that shows one of the key ways in which the U.S. justice system has gone astray, making it challenging to render a good approximation of justice, and how it might be remedied, if we pay attention and have the political will to do so.
September 17, 2021
I enjoyed the novelty of Greene's argument (novel to me at least) which distinguishes between the way America's judicial system reasons about rights in the modern age, how it reasoned about rights for most of its history, and how most other countries reason about rights as well. He presents a compelling argument that our current approach to rights is illogical and anomalous compared to our past history and to other countries.
Perhaps this is asking for too much from a book like this, but I'd like to see more of the other side of this argument. It's taken as pretty ubiquitous that the way the Supreme Court thinks about rights is the correct way--in line with the constitution and our founders--by most of the US, or at least it doesn't seem to occur to most of us that the framework itself is fundamentally illogical. Sure, the average citizen believes some weird shit, but I'd like to hear arguments from other legal experts for why we should keep things the way they are. As is, Greene's argument is almost too compelling to me to the point where I'm confused how we could reach this point without more people objecting along the way.
Perhaps this is asking for too much from a book like this, but I'd like to see more of the other side of this argument. It's taken as pretty ubiquitous that the way the Supreme Court thinks about rights is the correct way--in line with the constitution and our founders--by most of the US, or at least it doesn't seem to occur to most of us that the framework itself is fundamentally illogical. Sure, the average citizen believes some weird shit, but I'd like to hear arguments from other legal experts for why we should keep things the way they are. As is, Greene's argument is almost too compelling to me to the point where I'm confused how we could reach this point without more people objecting along the way.
November 7, 2024
Great analysis of the state of rights in the US. Currently, the Court recognizes very few rights, very strongly. Greene argues that we should shift our approach to be better in-line with the vast majority of constitutional democracies—the Court should recognize many rights, but it should recognize those rights weakly. This approach leads to more compromise and would better equip the judiciary to handle complex conflict of rights cases.
March 31, 2022
[30 Mar 2022]
This was a very interesting book. I'm not sure I always agreed with what the author said. I'm not sure I always understood what he was saying. But it was interesting and provocative.
In the U.S. we are accustomed to fighting for our "rights", including fighting in the courts, and many of the decisions of the U.S. Supreme Court at least since the Civil War have been about those "rights". What Greene says is that the Court has been too focused on "rights". Those rights are seen as pretty much absolute, with no wiggle room, no consideration for context or the facts of the situation. However, in many of those situations, both parties have rights. The gay couple has a right to marry, while the baker has a right to refuse service to someone in conflict with his religious beliefs. But the Court decides that one party wins and that party's rights prevail, while the other party loses and his or her rights are denied. That is a recipe for polarization and long term conflict.
What Greene recommends is that in many, not all, cases the Court should act instead as a mediator, taking into account the rights of all parties, as well as all the facts and circumstances, and try to find a solution that all parties can live with. He gives some examples of just such decisions from a few cases in the UK and Germany where the courts did just that.
He discusses the history in connection with several hot button issues from recent years -- abortion, gay marriage, free speech on campus, disability rights, affirmative action, and others. He describes the controlling decisions in each of those issues, and why he believes those decisions were right or wrong. In some cases he offers solutions.
This is a short book, little more than 250 pages of actual text, plus notes and index. On the whole it is well written, as one would expect of a Columbia law professor, and is understandable by a non-lawyer. However, I did have some trouble following what he was trying to say about how the Founders viewed rights. And he did use some terminology that is part of constitutional law theory that I found it difficult to keep straight. However, his general points are pretty clear.
I recommend this book to anyone interested in the U.S. justice system. At the very least it should start some people thinking about how our courts have been making decisions that impact everyone in the country but don't always seem to involve common sense.
This was a very interesting book. I'm not sure I always agreed with what the author said. I'm not sure I always understood what he was saying. But it was interesting and provocative.
In the U.S. we are accustomed to fighting for our "rights", including fighting in the courts, and many of the decisions of the U.S. Supreme Court at least since the Civil War have been about those "rights". What Greene says is that the Court has been too focused on "rights". Those rights are seen as pretty much absolute, with no wiggle room, no consideration for context or the facts of the situation. However, in many of those situations, both parties have rights. The gay couple has a right to marry, while the baker has a right to refuse service to someone in conflict with his religious beliefs. But the Court decides that one party wins and that party's rights prevail, while the other party loses and his or her rights are denied. That is a recipe for polarization and long term conflict.
What Greene recommends is that in many, not all, cases the Court should act instead as a mediator, taking into account the rights of all parties, as well as all the facts and circumstances, and try to find a solution that all parties can live with. He gives some examples of just such decisions from a few cases in the UK and Germany where the courts did just that.
He discusses the history in connection with several hot button issues from recent years -- abortion, gay marriage, free speech on campus, disability rights, affirmative action, and others. He describes the controlling decisions in each of those issues, and why he believes those decisions were right or wrong. In some cases he offers solutions.
This is a short book, little more than 250 pages of actual text, plus notes and index. On the whole it is well written, as one would expect of a Columbia law professor, and is understandable by a non-lawyer. However, I did have some trouble following what he was trying to say about how the Founders viewed rights. And he did use some terminology that is part of constitutional law theory that I found it difficult to keep straight. However, his general points are pretty clear.
I recommend this book to anyone interested in the U.S. justice system. At the very least it should start some people thinking about how our courts have been making decisions that impact everyone in the country but don't always seem to involve common sense.
September 21, 2021
Greene argues for a conception of American rights that focuses on a broader subsection of malleable rights over the status quo of fewer, more absolute rights. Further, he calls for a judiciary that prioritizes building compromise between parties of rights conflicts.
This book makes the above case in diligent, well-written prose, making sure to include multiple topic themes and dozens of legal case studies to anchor the argument. It’s a worthwhile read for its novel analysis of the Bill of Rights alone.
This isn’t to say it’s without its flaws. The author offers lofty projections for how well his proposed changes could decrease partisanship and solve policy dilemmas that aren’t justified when considering how to actually implement his proposals. He also seems to leave confounding factors that undermine the weight of his arguments unmentioned (e.g. there are plenty of possible reasons for why Germany could come to a more reasonable consensus on abortion than the U.S., including religiosity). Finally, while this book’s politics are worn on its sleeve, the lack of critical analysis of the Warren Court’s treatment of rights harms the case’s nonpartisan credibility.
Overall, this is a thought-provoking read, though one that seems ripe for a rebuttal.
This book makes the above case in diligent, well-written prose, making sure to include multiple topic themes and dozens of legal case studies to anchor the argument. It’s a worthwhile read for its novel analysis of the Bill of Rights alone.
This isn’t to say it’s without its flaws. The author offers lofty projections for how well his proposed changes could decrease partisanship and solve policy dilemmas that aren’t justified when considering how to actually implement his proposals. He also seems to leave confounding factors that undermine the weight of his arguments unmentioned (e.g. there are plenty of possible reasons for why Germany could come to a more reasonable consensus on abortion than the U.S., including religiosity). Finally, while this book’s politics are worn on its sleeve, the lack of critical analysis of the Warren Court’s treatment of rights harms the case’s nonpartisan credibility.
Overall, this is a thought-provoking read, though one that seems ripe for a rebuttal.
June 23, 2021
A challenging book - a bit challenging to read because the sentence construction is sometimes a bit complex. But mostly because it challenges a lot of the “sacred cows” of American attitudes about constitutional rights. I don’t have the legal background to fully understand everything in the book but it definitely makes me think about constitutional rights a different way. I was irritated when I started the book that he didn’t define what he means by rights, I know there are many definitions and many kinds of rights. But by the time I finished the book I think I know why he didn’t bother, he’s trying to show that the whole concept of rights can be deemphasized in some ways.
December 6, 2024
As a non-American, this is a banger
July 14, 2022
I'm not a historian nor a lawyer, so I don't have the background to know how effective he makes his argument. He does frequently use strong language that gave me the impression of someone repeatedly overstating their case. There was little presentation of counter arguments which makes it hard for the reader to evaluate his argument without backgrounds in law or history.
Ultimately, this book is casting a vision, and a very intriguing one, worth mulling. However, as a vision for how things could be different, the book has no roadmap for how to realize his vision.
Ultimately, this book is casting a vision, and a very intriguing one, worth mulling. However, as a vision for how things could be different, the book has no roadmap for how to realize his vision.
August 31, 2021
I’m all over the map regarding this book. There are plenty of details to nitpick: the historical explanations sometimes seem a little too simplistic, and the vision of a post-absolutist rights America too optimistic. I wish Greene had included more counter-examples from non-US courts and, perhaps, a deeper discussion of Fourth Amendment cases. Both of these might have made the overall argument more persuasive.
All that said, this is a book I’m going to be thinking about for awhile, and Greene articulates a perspective that is very important for US partisans to consider. Full marks for significance.
All that said, this is a book I’m going to be thinking about for awhile, and Greene articulates a perspective that is very important for US partisans to consider. Full marks for significance.
April 16, 2022
The book is more successful as an account of the legal history of rights than as an argument for a new perspective on rights. It is bizarre that the book entirely ignores the philosophy of rights, a rich subfield of moral philosophy that is inextricable from arguments about how rights should be applied. Overall kind of a slog.
Want to read
March 17, 2021Added because of this author interview on the 3/13/21 episode of the Amicus podcast (starts at ~44:00): https://slate.com/podcasts/amicus/202...
November 2, 2022
Legal issues and language are difficult to understand. My complements to people in legal careers.
September 16, 2022
I'm a big fan of comparative books that explain how other developed countries do things differently, especially when I get an explanation about why the negative aspects of American life do not appear elsewhere. I've also been out of law school for a long enough time to reconsider what was drilled into me in foundational courses like Constitutional Law.
Jamal Greene is a constitutional law professor at Columbia who wants the American judiciary to be more like Europe's. This book deconstructs America's "obsession with rights," which is the all-or-nothing analysis federal judges use to adjudicate rights claims. In my constitutional law course I learned about "tiers of scrutiny" that the Supreme Court applies to determine whether a constitutional right is more important than the state's interest in a policy outcome. All legislation is analyzed as a discrimination between different classes of people. If the class you belong to has a constitutional right that the state discriminates against, then the court applies "strict scrutiny" and invalidates the law as unconstitutional. If your class doesn't have a constitutional right, then your claim is without merit. The author shows how this method is at odds with other countries, and worsens political polarization.
The American judiciary discriminates against rights, rather than mediates between them. Americans have islands of rights that are trump-cards against all other considerations, whereas the government generally has carte blanche whenever the judiciary is not comfortable with recognizing a right. Other countries recognize lots of rights, but then balance them against each other based on the facts of the particular case. This drastically reduces political polarization because the elected branches can engage in an ongoing conversation on constitutional rights with the judiciary. The losing side in any lawsuit also has their rights claims respected, with both parties incentivized to work out a compromise instead of scorched earth and court packing. The most famous flashpoint in constitutional law has been abortion rights: Roe v. Wade held that the woman's right to choose completely trumped the rights of fetal life; after decades of firebombed abortion clinics and court-packing, the new Dobbs decisions now finds that the opposite is true. This contrasts with this book's profile on Germany, where the country successfully navigated between the rights of the woman and protections for fetal life. German courts mediated a workable compromise that left both sides satisfied with the ultimate outcome. All rights are respected in proportion to the facts of the case.
In response to the dominance of textualism and originalism in federal courts, the author does a great job of explaining why his proposed reforms would be a return to how American courts operated prior to the 20th century. The "tiers of scrutiny" method is a modern legal fiction, created in reaction to Jim Crow oppression and out of deference to new administrative agencies. After the New Deal, federal courts wanted to dismantle racial oppression while delegating responsibilities for modern economic regulations. This method was then repurposed and overextended to the point where it creates dysfunction throughout the government. Allowing courts to mediate between a wider swathe of rights permits proportionality between rights and remedies.
I support the author's reform proposals, which would help reduce political polarization, gridlock, and bureaucratic dysfunction. However, they would need to be tied to broader reforms to reduce polarization in the legislative and executive branches. Jamal Greene's proposal to empower unelected judges to recognize and create new constitutional rights only works if the other branches of government are healthy enough to check and balance them. For example, the current Supreme Court empowers state's rights over the people, at the expense of federal protections, on the premise that the state legislatures represent the popular will. In practice, however, gerrymandering insulates representatives in states like Wisconsin from public input or accountability. If voters cannot remove politicians through elections, then the Supreme Court's recent creation of new rights for firearms and fetuses will only worsen polarization, gridlock, and political violence. In order for this book's judicial reforms to work as intended, we must first break the two-party doom loop with election reforms such as proportional representation and ranked choice voting. Judges need to feel comfortable that they have an engaged public behind them, part of a healthy democracy that trusts courts and can correct their mistakes. - 9/14/22
Jamal Greene is a constitutional law professor at Columbia who wants the American judiciary to be more like Europe's. This book deconstructs America's "obsession with rights," which is the all-or-nothing analysis federal judges use to adjudicate rights claims. In my constitutional law course I learned about "tiers of scrutiny" that the Supreme Court applies to determine whether a constitutional right is more important than the state's interest in a policy outcome. All legislation is analyzed as a discrimination between different classes of people. If the class you belong to has a constitutional right that the state discriminates against, then the court applies "strict scrutiny" and invalidates the law as unconstitutional. If your class doesn't have a constitutional right, then your claim is without merit. The author shows how this method is at odds with other countries, and worsens political polarization.
The American judiciary discriminates against rights, rather than mediates between them. Americans have islands of rights that are trump-cards against all other considerations, whereas the government generally has carte blanche whenever the judiciary is not comfortable with recognizing a right. Other countries recognize lots of rights, but then balance them against each other based on the facts of the particular case. This drastically reduces political polarization because the elected branches can engage in an ongoing conversation on constitutional rights with the judiciary. The losing side in any lawsuit also has their rights claims respected, with both parties incentivized to work out a compromise instead of scorched earth and court packing. The most famous flashpoint in constitutional law has been abortion rights: Roe v. Wade held that the woman's right to choose completely trumped the rights of fetal life; after decades of firebombed abortion clinics and court-packing, the new Dobbs decisions now finds that the opposite is true. This contrasts with this book's profile on Germany, where the country successfully navigated between the rights of the woman and protections for fetal life. German courts mediated a workable compromise that left both sides satisfied with the ultimate outcome. All rights are respected in proportion to the facts of the case.
In response to the dominance of textualism and originalism in federal courts, the author does a great job of explaining why his proposed reforms would be a return to how American courts operated prior to the 20th century. The "tiers of scrutiny" method is a modern legal fiction, created in reaction to Jim Crow oppression and out of deference to new administrative agencies. After the New Deal, federal courts wanted to dismantle racial oppression while delegating responsibilities for modern economic regulations. This method was then repurposed and overextended to the point where it creates dysfunction throughout the government. Allowing courts to mediate between a wider swathe of rights permits proportionality between rights and remedies.
I support the author's reform proposals, which would help reduce political polarization, gridlock, and bureaucratic dysfunction. However, they would need to be tied to broader reforms to reduce polarization in the legislative and executive branches. Jamal Greene's proposal to empower unelected judges to recognize and create new constitutional rights only works if the other branches of government are healthy enough to check and balance them. For example, the current Supreme Court empowers state's rights over the people, at the expense of federal protections, on the premise that the state legislatures represent the popular will. In practice, however, gerrymandering insulates representatives in states like Wisconsin from public input or accountability. If voters cannot remove politicians through elections, then the Supreme Court's recent creation of new rights for firearms and fetuses will only worsen polarization, gridlock, and political violence. In order for this book's judicial reforms to work as intended, we must first break the two-party doom loop with election reforms such as proportional representation and ranked choice voting. Judges need to feel comfortable that they have an engaged public behind them, part of a healthy democracy that trusts courts and can correct their mistakes. - 9/14/22
July 7, 2021
I really liked this book overall! I found his main argument convincing (we should take pains to balance rights instead of being absolutist and zero-sum in which rights we protect) which I wasn't expecting, and it was very readable. But, it was very "law professor"-y in that I wasn't sure how he (or even if) he expects this view to actually be implemented in the American legal system, given how our common law system has worked for hundreds of years. I also wasn't convinced that his proposed method of balancing (leaving things much more so to the legislature, where political actors can lobby and compromise and try to convince others, instead of the courts) would actually be better in the US given how anti-majoritarian our federal system is (not to mention the fact that the calculus for the two major political parties is very different when it comes to the electoral benefits of 'compromise' or 'bipartisanship' !). He makes several references to the fact that the US was a white supremacist nation for most of our legal and political history, but doesn't address how our current structures were designed in concert with those systems (ie the filibuster and the Senate more broadly).
December 5, 2021
Great being back in con law with Professor Greene. A nuanced and ambitious book. Very much reminiscent of Prof. Greene’s teaching style and tone, as well as his preoccupations, from what I can recall. I found particularly rewarding the last third or so where he put his ideas into practice. The affirmative action chapter was dynamite.
November 26, 2022
This is a brilliant, surprising, badly mistaken, unpredictable, confused, bracing, incisive, empirically dubious book. I think it’s importantly wrong about many of the topics it discusses and on general matters of theory, and I think it’s one of the best works on constitutional interpretation I’ve read.
Or is it even about constitutional interpretation? At times it seems a work of moral or political philosophy instead. Such are the questions Jamal Greene makes his readers ask: what is a right? What is a constitution? What does it mean to interpret one? What is a judge?
Part of my admiration derived from the fact that Greene wrote this book at all. I could’ve easily imagined him as a Supreme Court justice, and the book makes clear he’d be a talented and distinctive judge. But writing a book explaining your detailed views on important questions of law is the best way to nuke your odds of ever getting a judicial appointment. The Elena Kagan school of “shut up and never say anything” now dominates and Greene has doomed himself.
That’s especially true because he slaughters a lot of sacred cows important to Democratic constituencies. He’s harshly critical of Roe v. Wade, writes approvingly of a limited “right to contract,” and suggests the baker in Masterpiece Cakeshop had a right to not bake for a same-sex wedding. And Republican constituencies too: he argues for clear and explicit racial quotas in college admissions and rights to education and disability. No one’s appointing this guy.
Instead of Justice Greene, we get author Greene and a clear argument for a radical revision of the way the Supreme Court conceptualizes rights. The tl;dr is to recognize more rights more weakly, and tailor decisions and remedies narrowly to the situation at hand. Recognize a right to education, but be clear that legislatures can fulfill that right in many ways, and that right must be weighed against fiscal realities. Recognize that women have a right to bodily autonomy but fetuses have rights too, and tailor a policy that respects both.
Abandon absolutist readings of free speech and racial discrimination doctrine that perversely protect corporate PACs health care data miners but threaten affirmative action, and abandon the view that some forms of discrimination (like ableism) deserve only light, rational-basis review. Take the former less seriously, and the latter more.
This account has several distinctive features. One of the most astonishing is that it’s largely atextual. Greene is contemptuous of the linguistic games judges play to explain why the Constitution’s text creates or implies this or that right, which leads to either manifest injustices (eg upholding San Antonio’s neglect of poor, majority-Mexican schools) or absurd contortions (eg Douglas’s bizarre construction of a right to privacy out of the due process clauses in Griswold). It should be sufficient to note that a plaintiff thinks they have a particular right, that they have a demand or need that is important to them and unmet.
That’s another distinctive feature: Greene uses “right” in a way other writers might use a term like “interest” or “reason.” Philosophers like Nagel, Scanlon, and Parfit, in particular, have become “reason” heads of a sort, recasting questions about morality as questions about what reasons people have to act in this or that way. That concept and Greene’s concept of “rights” seem quite similar to me. He approvingly cites a German court case acknowledging a woman’s “right” to feed pigeons, and balancing that right against the community’s right to control its pigeon population. This is decidedly not the concept of rights as “trump cards” outlining any contrary reasons that Ronald Dworkin outlined.
I’ve tried to read as much of the law professoriate commentary on the book as possible, and much of it is predictable. David Cole, patron saint of the “but like what if the Warren Court did come back” school, thinks it’s too negative toward judicial review. Sam Moyn, shock of shocks, thinks it’s too positive. Aziz Huq makes the useful point that current jurisprudence relies heavily on weighting and balancing already, which isn’t too different from Greene’s preferred ideal.
Moyn’s own views go way beyond mine, but he raises the key point here. Greene lays out a world where judges are less tethered to constitutional text, are encouraged to recognize more rights, and still have the power to overrule the decisions of legislators and executive actors. He expects them to use these powers, well, judiciously, and with active collaboration from elected officials. But why are judges the right actors for this kind of decision making at all? We need judges to oversee trials, and hear appeals from their results. The practice of empowering them to overrule democratically passed legislation is less clearly necessary, and especially questionable if they’re to be totally unbound to constitutional text and encouraged to recognize a multitude of rights.
Again, though, the question is whether this is a book about constitutional interpretation, really, or about how to think about questions of justice in a pluralistic society. I could imagine legislators benefiting considerably from this kind of perspective. But I don’t think judges deserve much of a role one way or another.
Or is it even about constitutional interpretation? At times it seems a work of moral or political philosophy instead. Such are the questions Jamal Greene makes his readers ask: what is a right? What is a constitution? What does it mean to interpret one? What is a judge?
Part of my admiration derived from the fact that Greene wrote this book at all. I could’ve easily imagined him as a Supreme Court justice, and the book makes clear he’d be a talented and distinctive judge. But writing a book explaining your detailed views on important questions of law is the best way to nuke your odds of ever getting a judicial appointment. The Elena Kagan school of “shut up and never say anything” now dominates and Greene has doomed himself.
That’s especially true because he slaughters a lot of sacred cows important to Democratic constituencies. He’s harshly critical of Roe v. Wade, writes approvingly of a limited “right to contract,” and suggests the baker in Masterpiece Cakeshop had a right to not bake for a same-sex wedding. And Republican constituencies too: he argues for clear and explicit racial quotas in college admissions and rights to education and disability. No one’s appointing this guy.
Instead of Justice Greene, we get author Greene and a clear argument for a radical revision of the way the Supreme Court conceptualizes rights. The tl;dr is to recognize more rights more weakly, and tailor decisions and remedies narrowly to the situation at hand. Recognize a right to education, but be clear that legislatures can fulfill that right in many ways, and that right must be weighed against fiscal realities. Recognize that women have a right to bodily autonomy but fetuses have rights too, and tailor a policy that respects both.
Abandon absolutist readings of free speech and racial discrimination doctrine that perversely protect corporate PACs health care data miners but threaten affirmative action, and abandon the view that some forms of discrimination (like ableism) deserve only light, rational-basis review. Take the former less seriously, and the latter more.
This account has several distinctive features. One of the most astonishing is that it’s largely atextual. Greene is contemptuous of the linguistic games judges play to explain why the Constitution’s text creates or implies this or that right, which leads to either manifest injustices (eg upholding San Antonio’s neglect of poor, majority-Mexican schools) or absurd contortions (eg Douglas’s bizarre construction of a right to privacy out of the due process clauses in Griswold). It should be sufficient to note that a plaintiff thinks they have a particular right, that they have a demand or need that is important to them and unmet.
That’s another distinctive feature: Greene uses “right” in a way other writers might use a term like “interest” or “reason.” Philosophers like Nagel, Scanlon, and Parfit, in particular, have become “reason” heads of a sort, recasting questions about morality as questions about what reasons people have to act in this or that way. That concept and Greene’s concept of “rights” seem quite similar to me. He approvingly cites a German court case acknowledging a woman’s “right” to feed pigeons, and balancing that right against the community’s right to control its pigeon population. This is decidedly not the concept of rights as “trump cards” outlining any contrary reasons that Ronald Dworkin outlined.
I’ve tried to read as much of the law professoriate commentary on the book as possible, and much of it is predictable. David Cole, patron saint of the “but like what if the Warren Court did come back” school, thinks it’s too negative toward judicial review. Sam Moyn, shock of shocks, thinks it’s too positive. Aziz Huq makes the useful point that current jurisprudence relies heavily on weighting and balancing already, which isn’t too different from Greene’s preferred ideal.
Moyn’s own views go way beyond mine, but he raises the key point here. Greene lays out a world where judges are less tethered to constitutional text, are encouraged to recognize more rights, and still have the power to overrule the decisions of legislators and executive actors. He expects them to use these powers, well, judiciously, and with active collaboration from elected officials. But why are judges the right actors for this kind of decision making at all? We need judges to oversee trials, and hear appeals from their results. The practice of empowering them to overrule democratically passed legislation is less clearly necessary, and especially questionable if they’re to be totally unbound to constitutional text and encouraged to recognize a multitude of rights.
Again, though, the question is whether this is a book about constitutional interpretation, really, or about how to think about questions of justice in a pluralistic society. I could imagine legislators benefiting considerably from this kind of perspective. But I don’t think judges deserve much of a role one way or another.
April 8, 2023
This book only took me what, 2? 3? 5? years to read? The title basically says it all and the rest of the book just provides support for that thesis in great detail. I've never been one to enjoy reading about court cases and precedent although it felt important to slog my way through it. Too bad every time I picked up the book I was put into a sedated trance. Other than that, some of the solutions offered were interesting to read, if not seemingly hopelessly unattainable in our current political climate.
August 27, 2024
Having studied institutional economics, I appreciate the significance of the rule of law. However, I’ve often struggled with reading about specific legal rulings of the U.S. Supreme Court, finding them illogical and hard to follow. To my surprise, I thoroughly enjoyed this book. It not only helped me understand how the law works in the United States but also provides a valuable perspective on explaining the political polarization prevailing in the country.
The author, Jamal Green, argues that since the mid-20th century, U.S. Supreme Court justices, whether liberal or conservative, have adhered to a legal theory he calls "rightsism." This theory asserts that once the court decides a right should be protected by the U.S. Constitution, it must be protected in absolute and non-negotiable ways. Once the court recognizes a right, the judges believe they can protect whatever that right encompasses. Green argues that this rightsism has led to several issues:
1) Over-extended rights: For example, the Supreme Court struck down a Vermont law forbidding the sale of prescription data, claiming it violated the free speech rights of drug companies. Similarly, courts have extended freedom of speech protections to actions such as contributing to super PACs and paying union dues. As the author notes, "free speech law has become a game in which well-heeled litigants looking to evade regulation characterize their acts in purely expressive terms, and often get away with it."
2) Overlooking facts and context: Because rights are treated as absolute, U.S. judges pay little attention to important circumstances. For example, when someone claims that a regulation violates a constitutional right, what is the magnitude, scope, or permanence of the violation? What are the reasons behind the regulations? What are the available alternatives? The U.S. courts often ignore these important questions, making mistakes such as treating school discipline of uncivil behavior the same as government imprisonment of political criminals.
3) Arbitrary rulings: Rights inevitably clash with each other. For example, a woman’s right to her own body conflicts with a fetus’s right to life. American judges rely on arcane and arbitrary legal parsing to handle these clashes. They claim to be following a formula, but in reality, they apply a great deal of personal judgment.
4) Winner-take-all outcomes and subsequent polarization: As winning a case (such as overturning Roe v. Wade) yields great rewards, political activists are incentivized to seek absolute victories in court rather than negotiating with other parties.
5) Loss of confidence in the law: Because judges' rulings often seem arbitrary, people lose trust in the integrity or purpose of the judicial process. As they realize that the final outcome depends largely on the political leanings of the judges, parties focus on stuffing the courts with like-minded individuals.
6) Lack of protection for fundamental rights: In fear of providing "too much justice," judges insist that any rights that cannot be protected absolutely are not rights at all. For example, U.S. courts do not recognize rights to food, shelter, or education. Disabled people do not receive adequate legal support to claim their right to accommodation.
Green notes that the United States is an outlier among Western countries, which recognize many less-than-absolute rights and rely on facts and context to resolve conflicts between rights. For example, in Roe v. Wade, the U.S. court recognized a woman's right to abortion without acknowledging a fetus's right to life. In contrast, in a ruling around the same time, the West German court recognized both rights. Instead of allowing abortion for any reason, as in the U.S. ruling, the German ruling specified legitimate reasons for abortions. In the following years, German abortion politics focused on revising these specific terms rather than one party seeking to revoke women's or fetal rights entirely. There is also a general consensus that counseling and financial assistance to pregnant women and families protect fetal life far better than a prohibition on abortion—a fact that gets overlooked in the polarized debate in the U.S.
Abortion is only one of many areas Green has studied. He has also examined the consequences of rightsism in legal debates concerning guns, LGBT and disabled people, affirmative action in college admissions, and campus speech. In each case, he encourages us to consider facts and context, a perspective I find valuable in the polarized society of the United States.
Given path dependence, it may be difficult for America to change course in the near future. However, on a personal level, I find Green's writing highly insightful. He helps me gain clarity and resolve moral dilemmas. One example is the famous Colorado gay cake case. What puzzled me was that both parties' claims seemed valid. On one hand, one could argue that the gay couple should not be denied service, just as Black people should not be banned from entering a restaurant. On the other hand, supporters of the cake owner might argue that forcing the business to provide a cake for a gay wedding is like forcing parents of a shooting victim to design a T-shirt for the NRA. However, Green guides readers to the specifics of this case: the cake owner and the gay couple had less disagreement than the media depicted, and each party's claim of rights violations was not as serious as the comparisons above suggest. He guides our attention to specifics, introduces how the UK court deals with similar cases, and offers practical solutions, such as allowing the cake owner to subcontract the service or treating cake selling and service at weddings separately. I find his discussion of these practical solutions so compelling that I must quote it in full here:
I find Green's writing highly skilled. While he can be a bit verbose at times, he is mostly accurate, powerful, and, believe it or not, beautiful. The only part of the book that confuses me is his discussion of the intentions of the U.S. Constitution and its amendments in chapter 2.
In conclusion, I have learned from other authors (such as Jonathan Haidt) about the inevitability of human conflict. But this book shows us hopeful ways to navigate these conflicts. As the author says:
The author, Jamal Green, argues that since the mid-20th century, U.S. Supreme Court justices, whether liberal or conservative, have adhered to a legal theory he calls "rightsism." This theory asserts that once the court decides a right should be protected by the U.S. Constitution, it must be protected in absolute and non-negotiable ways. Once the court recognizes a right, the judges believe they can protect whatever that right encompasses. Green argues that this rightsism has led to several issues:
1) Over-extended rights: For example, the Supreme Court struck down a Vermont law forbidding the sale of prescription data, claiming it violated the free speech rights of drug companies. Similarly, courts have extended freedom of speech protections to actions such as contributing to super PACs and paying union dues. As the author notes, "free speech law has become a game in which well-heeled litigants looking to evade regulation characterize their acts in purely expressive terms, and often get away with it."
2) Overlooking facts and context: Because rights are treated as absolute, U.S. judges pay little attention to important circumstances. For example, when someone claims that a regulation violates a constitutional right, what is the magnitude, scope, or permanence of the violation? What are the reasons behind the regulations? What are the available alternatives? The U.S. courts often ignore these important questions, making mistakes such as treating school discipline of uncivil behavior the same as government imprisonment of political criminals.
3) Arbitrary rulings: Rights inevitably clash with each other. For example, a woman’s right to her own body conflicts with a fetus’s right to life. American judges rely on arcane and arbitrary legal parsing to handle these clashes. They claim to be following a formula, but in reality, they apply a great deal of personal judgment.
4) Winner-take-all outcomes and subsequent polarization: As winning a case (such as overturning Roe v. Wade) yields great rewards, political activists are incentivized to seek absolute victories in court rather than negotiating with other parties.
5) Loss of confidence in the law: Because judges' rulings often seem arbitrary, people lose trust in the integrity or purpose of the judicial process. As they realize that the final outcome depends largely on the political leanings of the judges, parties focus on stuffing the courts with like-minded individuals.
6) Lack of protection for fundamental rights: In fear of providing "too much justice," judges insist that any rights that cannot be protected absolutely are not rights at all. For example, U.S. courts do not recognize rights to food, shelter, or education. Disabled people do not receive adequate legal support to claim their right to accommodation.
Green notes that the United States is an outlier among Western countries, which recognize many less-than-absolute rights and rely on facts and context to resolve conflicts between rights. For example, in Roe v. Wade, the U.S. court recognized a woman's right to abortion without acknowledging a fetus's right to life. In contrast, in a ruling around the same time, the West German court recognized both rights. Instead of allowing abortion for any reason, as in the U.S. ruling, the German ruling specified legitimate reasons for abortions. In the following years, German abortion politics focused on revising these specific terms rather than one party seeking to revoke women's or fetal rights entirely. There is also a general consensus that counseling and financial assistance to pregnant women and families protect fetal life far better than a prohibition on abortion—a fact that gets overlooked in the polarized debate in the U.S.
Abortion is only one of many areas Green has studied. He has also examined the consequences of rightsism in legal debates concerning guns, LGBT and disabled people, affirmative action in college admissions, and campus speech. In each case, he encourages us to consider facts and context, a perspective I find valuable in the polarized society of the United States.
Given path dependence, it may be difficult for America to change course in the near future. However, on a personal level, I find Green's writing highly insightful. He helps me gain clarity and resolve moral dilemmas. One example is the famous Colorado gay cake case. What puzzled me was that both parties' claims seemed valid. On one hand, one could argue that the gay couple should not be denied service, just as Black people should not be banned from entering a restaurant. On the other hand, supporters of the cake owner might argue that forcing the business to provide a cake for a gay wedding is like forcing parents of a shooting victim to design a T-shirt for the NRA. However, Green guides readers to the specifics of this case: the cake owner and the gay couple had less disagreement than the media depicted, and each party's claim of rights violations was not as serious as the comparisons above suggest. He guides our attention to specifics, introduces how the UK court deals with similar cases, and offers practical solutions, such as allowing the cake owner to subcontract the service or treating cake selling and service at weddings separately. I find his discussion of these practical solutions so compelling that I must quote it in full here:
Some Americans, maybe even most, wouldn’t like these solutions. They aren’t perfect, and many, on both sides, might think no compromise is called for here. But the job of the courts in a pluralistic democracy isn’t to please their base. It’s to work to resolve conflicts, to ratchet them down rather than up. Courts should be reminding us of what we have in common. They should be granting just enough constitutional leverage on each side that we have no choice but to sit across from each other at the table, to look each other in the eye, and to speak to and hear each other. Too often, U.S. courts instead see their job in constitutional cases as declaring who’s right. The answer, so often, is neither side—or both.
I find Green's writing highly skilled. While he can be a bit verbose at times, he is mostly accurate, powerful, and, believe it or not, beautiful. The only part of the book that confuses me is his discussion of the intentions of the U.S. Constitution and its amendments in chapter 2.
In conclusion, I have learned from other authors (such as Jonathan Haidt) about the inevitability of human conflict. But this book shows us hopeful ways to navigate these conflicts. As the author says:
In a chaotic, dynamic, dangerous, conflicted, and yet profoundly connected world, constitutional law can never have just one right and true answer, just one solution for all time. We’re stuck with one another, caught, as King said, “in an inescapable network of mutuality, tied in a single garment of destiny.” We need one another, and we all have a part to play in figuring out how to live together.
This entire review has been hidden because of spoilers.
July 11, 2021
Greene persuasively argues that many of America's culture fissures stem from a judicial inclination to say shall when we could say ought. As in, "you ought not restrict speech" versus "you shall not restrict speech." One word demands a binary verdict (you have the right or you don't have the right), whereas the other word offers proportionality and the chance to find a middle ground.
Greene's central thesis is that Justice Oliver Wendell Holmes Jr.'s dissent in the famous Lochner case set American law down the wrong path. American courts began to conflate interest with rights. In so doing, they came to view parties impacted by some of the most complex issues of the past 100 years as either clear-cut winners or losers —those with a right and those without a right — with no real room for nuance.
To make his case, Greene looks at a number of contentious issues, ranging from abortion and gay rights to free speech and affirmative action. In some of these instances, he makes a more compelling argument than in others. For example, his proposed solution to the so-called "gay wedding cake" controversy feels uncomfortably close to separate but equal. Others, however, seem both obvious and righteous. "This case, this policy, this school district, and these school children... these questions and not hypothetical ones about rights that aren't part of the case are the questions that justice demands answers to," Greene declares in one of his more successful closings. It's hard to disagree.
Is this book likely to change anyone's mind on any of these issues? Probably not. At least this reader didn't think so. Is this because Greene's approach is fundamentally flawed or because I'm sick with the same supposed illness that plagues the courts? Who knows. That's not his point. His point is that there is another way for us to view rights. For that reason, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart makes for an engaging and important read.
Greene's central thesis is that Justice Oliver Wendell Holmes Jr.'s dissent in the famous Lochner case set American law down the wrong path. American courts began to conflate interest with rights. In so doing, they came to view parties impacted by some of the most complex issues of the past 100 years as either clear-cut winners or losers —those with a right and those without a right — with no real room for nuance.
To make his case, Greene looks at a number of contentious issues, ranging from abortion and gay rights to free speech and affirmative action. In some of these instances, he makes a more compelling argument than in others. For example, his proposed solution to the so-called "gay wedding cake" controversy feels uncomfortably close to separate but equal. Others, however, seem both obvious and righteous. "This case, this policy, this school district, and these school children... these questions and not hypothetical ones about rights that aren't part of the case are the questions that justice demands answers to," Greene declares in one of his more successful closings. It's hard to disagree.
Is this book likely to change anyone's mind on any of these issues? Probably not. At least this reader didn't think so. Is this because Greene's approach is fundamentally flawed or because I'm sick with the same supposed illness that plagues the courts? Who knows. That's not his point. His point is that there is another way for us to view rights. For that reason, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart makes for an engaging and important read.
August 13, 2022
I am not a lawyer. I don't read a lot about Constitutional Law, and maybe you don't either, but I would recommend this thoughtful and informative book by Jamal Greene to you. There is much to love in this book about how the Supreme Court and therefore our judicial system looks at rights and their role in mediating rights in conflict.
If you are concerned, as many of us are, with the current Supreme Court, you may be thinking about how to reform it, structurally. Term limits, the size of the court, and other ideas are out there and are worth considering. This is not the focus of Greene's book. Greene is all about the judicial role in dealing with conflicting rights claims, and about how the courts could better deal with such claims. He says we should recognize the validity of many rights claims which our courts have not recognized in the past (say, for example, certain 14th amendment rights of persons with disabilities). He also says we should not be so absolutist about rights that the courts have recognized (for example, rulings requiring a university to offer its auditorium facilities to an outside speaker advocating white supremacy).
Greene's argument is well supported with cases involving religious freedom, free speech, affirmative action, abortion, and equality, among other topics. He shows how the Supreme Court engages in discriminating between rights that matter and rights that do not matter, in the eyes of the Court, and he argues that this is not an approach to justice that works in a pluralistic country. In such cases, one side walks away feeling, justifiably, that their rights claims have been disregarded and rejected completely, even in situations where the outcome is actually unreasonable in light of the facts in the specific case. Greene argues that the facts matter, and that the Courts should approach rights conflicts - cases where both parties have rights claims (think of the Masterpiece Bake Shop case) - in a mediation approach (in light of the facts, has the government acted in a manner that gives appropriate consideration to the rights of both parties?) rather than a discrimination approach (which of the rights claims is a more important claim (my right to carry an AR-15 to your protest march vs your right to peacefully assemble in protest).
That's a very brief summary of the main argument, and all the value is really in walking through the cases with Greene, reading his critique of the Court's method and reasoning, and considering the different (better) outcomes that his approach might render in such cases. It turns out that his recommended approach is actually typical of the approach taken in other constitutional democracies around the world, so he is able to show in real situations how well that approach works (for example, how the court in Germany mediated the conflict over abortion). Americans, especially the right-wingers and the jurists they appoint to the courts, are not accustomed to the idea that we might learn anything from anyone else, which is a tragedy beyond the scope of this book. However, it is surprisingly hopeful to understand that some of the apparently intractable problems with law and justice in our country may be solvable by simply considering the possibility that there is a significant distribution of wisdom in human societies outside of the United States of America.
A key idea in Greene's argument is that Courts should push most of the policy-making back onto the elected legislators and executive branch - that these more democratic and accountable bodies are the place where compromise, experimentation, and practical resolution are best determined, absent systemic malice (for example, legislatures in thrall to white supremacy are incapable of delivering justice - an exception which would require judicial intervention). I think he is right about that, despite the appalling condition of our state and federal legislative bodies. Greene's discussion of the idea held by the "founding fathers" that local democracy, exercised in juries and town meetings, should be trusted to find reasonable solutions and to work out conflicting interests in the fairest and most prudential manner, seems quaint at first glance, but as Greene points out, with numerous examples, tasking the Supreme Court with reaching such policy decisions has not worked very well.
The events of the past few months have underscored the urgent need for a fundamental reworking of the role and methods of the Supreme Court and federal judiciary. The need for reform is so urgent and sharply felt that we really ought to be humbled to recognize how badly we have f'd it up. It should inspire all of us to think carefully about exactly what is wrong and how it might be rectified. Professor Greene has done us such a service in this book. I encourage my fellow citizens to read and consider.
If you are concerned, as many of us are, with the current Supreme Court, you may be thinking about how to reform it, structurally. Term limits, the size of the court, and other ideas are out there and are worth considering. This is not the focus of Greene's book. Greene is all about the judicial role in dealing with conflicting rights claims, and about how the courts could better deal with such claims. He says we should recognize the validity of many rights claims which our courts have not recognized in the past (say, for example, certain 14th amendment rights of persons with disabilities). He also says we should not be so absolutist about rights that the courts have recognized (for example, rulings requiring a university to offer its auditorium facilities to an outside speaker advocating white supremacy).
Greene's argument is well supported with cases involving religious freedom, free speech, affirmative action, abortion, and equality, among other topics. He shows how the Supreme Court engages in discriminating between rights that matter and rights that do not matter, in the eyes of the Court, and he argues that this is not an approach to justice that works in a pluralistic country. In such cases, one side walks away feeling, justifiably, that their rights claims have been disregarded and rejected completely, even in situations where the outcome is actually unreasonable in light of the facts in the specific case. Greene argues that the facts matter, and that the Courts should approach rights conflicts - cases where both parties have rights claims (think of the Masterpiece Bake Shop case) - in a mediation approach (in light of the facts, has the government acted in a manner that gives appropriate consideration to the rights of both parties?) rather than a discrimination approach (which of the rights claims is a more important claim (my right to carry an AR-15 to your protest march vs your right to peacefully assemble in protest).
That's a very brief summary of the main argument, and all the value is really in walking through the cases with Greene, reading his critique of the Court's method and reasoning, and considering the different (better) outcomes that his approach might render in such cases. It turns out that his recommended approach is actually typical of the approach taken in other constitutional democracies around the world, so he is able to show in real situations how well that approach works (for example, how the court in Germany mediated the conflict over abortion). Americans, especially the right-wingers and the jurists they appoint to the courts, are not accustomed to the idea that we might learn anything from anyone else, which is a tragedy beyond the scope of this book. However, it is surprisingly hopeful to understand that some of the apparently intractable problems with law and justice in our country may be solvable by simply considering the possibility that there is a significant distribution of wisdom in human societies outside of the United States of America.
A key idea in Greene's argument is that Courts should push most of the policy-making back onto the elected legislators and executive branch - that these more democratic and accountable bodies are the place where compromise, experimentation, and practical resolution are best determined, absent systemic malice (for example, legislatures in thrall to white supremacy are incapable of delivering justice - an exception which would require judicial intervention). I think he is right about that, despite the appalling condition of our state and federal legislative bodies. Greene's discussion of the idea held by the "founding fathers" that local democracy, exercised in juries and town meetings, should be trusted to find reasonable solutions and to work out conflicting interests in the fairest and most prudential manner, seems quaint at first glance, but as Greene points out, with numerous examples, tasking the Supreme Court with reaching such policy decisions has not worked very well.
The events of the past few months have underscored the urgent need for a fundamental reworking of the role and methods of the Supreme Court and federal judiciary. The need for reform is so urgent and sharply felt that we really ought to be humbled to recognize how badly we have f'd it up. It should inspire all of us to think carefully about exactly what is wrong and how it might be rectified. Professor Greene has done us such a service in this book. I encourage my fellow citizens to read and consider.
March 9, 2025
I picked up How Rights Went Wrong because I’ve been feeling like nobody really listens to each other anymore, especially when it comes to rights. I’ve always said, "Laws don’t change hearts," and I’ve seen how we rely too much on the courts to solve these issues. The book really helped me dig deeper into how much control the courts have over our rights and why that’s not always a good thing. It's eye-opening to see how weak those court decisions can be when society isn't on board, like with Roe v. Wade. And honestly, it made me rethink a lot about how we approach things like gun rights—some issues really should be handled on a local level where people's needs are different.
The author argues that our rights shouldn't just be something the courts decide for us. There's a lot of history here, and the way the legal system has taken over these discussions has caused a huge divide. When a right is won in court, the backlash can be fierce because, instead of understanding, we dig into our corners and fight like it's a battle between winners and losers. This polarization doesn’t just happen by accident—it’s how we’ve structured things, and it’s only getting worse.
One of the things that hit home for me in the book was the idea that many of the rights we care about—things like freedom of speech or the right to vote—aren’t even written directly into the Constitution. They’ve been inferred by judges over time, and honestly, that leaves a lot of room for interpretation. Judges are making choices based on vague language like "equal protection" and "due process," and sometimes, it feels like those choices don’t reflect the real, human experiences behind the issues.
What really stuck with me was how the book talks about rights not just being about legal texts, but about real people and their struggles. The author makes a really strong point that rights shouldn’t be left solely to the courts. Judges are trained to deal with abstract legal questions, but rights are about real pain, real conflict, and real human experiences. The more we leave it to the courts, the less we, as communities, can engage with these important conversations.
I also liked how the book touched on the idea that some rights, like gun rights, should be looked at on a local level. The Constitution wasn’t meant to be the final authority on all rights—it was actually built on the idea that local governments would have a bigger say. This makes sense, especially when you think about areas where people might need guns for safety, like near wild animals, compared to someone living in the suburbs.
The book also made me think about how polarized we are in this country. The author talks about how rights aren’t about being right or wrong; they’re about finding common ground, and that’s something we’ve lost sight of. Right now, it feels like winning is all that matters, but the book suggests we need to move beyond that mindset if we’re ever going to live together peacefully.
That said, the book does get a little bogged down in court cases—there’s a lot of legal detail, which can be overwhelming. If you’re not someone who’s really into constitutional law, some parts can get a little heavy. But, if you can get through that, the main points are really worth it.
In the end, How Rights Went Wrong really made me rethink how we approach rights, law, and the role of courts in shaping our society. I’m still firmly in the camp that laws can’t change hearts, and this book backs up that belief with some serious insights. If you’ve ever felt that court decisions just don’t get to the heart of the issue, or that rights should be more community-driven, this book is definitely worth a read. It challenges us to think about how we can engage with rights and law in a way that goes beyond the courtroom and into the real world, where people live and struggle.
The author argues that our rights shouldn't just be something the courts decide for us. There's a lot of history here, and the way the legal system has taken over these discussions has caused a huge divide. When a right is won in court, the backlash can be fierce because, instead of understanding, we dig into our corners and fight like it's a battle between winners and losers. This polarization doesn’t just happen by accident—it’s how we’ve structured things, and it’s only getting worse.
One of the things that hit home for me in the book was the idea that many of the rights we care about—things like freedom of speech or the right to vote—aren’t even written directly into the Constitution. They’ve been inferred by judges over time, and honestly, that leaves a lot of room for interpretation. Judges are making choices based on vague language like "equal protection" and "due process," and sometimes, it feels like those choices don’t reflect the real, human experiences behind the issues.
What really stuck with me was how the book talks about rights not just being about legal texts, but about real people and their struggles. The author makes a really strong point that rights shouldn’t be left solely to the courts. Judges are trained to deal with abstract legal questions, but rights are about real pain, real conflict, and real human experiences. The more we leave it to the courts, the less we, as communities, can engage with these important conversations.
I also liked how the book touched on the idea that some rights, like gun rights, should be looked at on a local level. The Constitution wasn’t meant to be the final authority on all rights—it was actually built on the idea that local governments would have a bigger say. This makes sense, especially when you think about areas where people might need guns for safety, like near wild animals, compared to someone living in the suburbs.
The book also made me think about how polarized we are in this country. The author talks about how rights aren’t about being right or wrong; they’re about finding common ground, and that’s something we’ve lost sight of. Right now, it feels like winning is all that matters, but the book suggests we need to move beyond that mindset if we’re ever going to live together peacefully.
That said, the book does get a little bogged down in court cases—there’s a lot of legal detail, which can be overwhelming. If you’re not someone who’s really into constitutional law, some parts can get a little heavy. But, if you can get through that, the main points are really worth it.
In the end, How Rights Went Wrong really made me rethink how we approach rights, law, and the role of courts in shaping our society. I’m still firmly in the camp that laws can’t change hearts, and this book backs up that belief with some serious insights. If you’ve ever felt that court decisions just don’t get to the heart of the issue, or that rights should be more community-driven, this book is definitely worth a read. It challenges us to think about how we can engage with rights and law in a way that goes beyond the courtroom and into the real world, where people live and struggle.
February 8, 2023
Columbia University Professor of Law Jamal Greene has written a trenchant critique of American jurisprudence which questions its absolutist focus on binary rights. In a nutshell, he argues that justice would be better served if judges acted more like mediators and less as interpreters of what the Constitution means or the founders intended. The book begins by tracing the origins how of the customary practice came to be embedded in our legal system through the early opinions of justices Holmes, Frankfurter, the Harlans (both senior and junior), and others. Greene then illustrates how, rather than mediating disputes, the decisions reached over the years have resulted in unqualified winners and losers in the areas of abortion, racial justice, gun rights, LGBTQ, disability rights, affirmative action, and campus speech. Not only has the existing practice by unaccountable and sometimes political biased judges produced unbalanced justice, but the system has also increased political distrust and polarization.
Greene also relies on comparisons from other countries (as in Germany, Canada, India, Israel) to illustrate how different systems can produce more even-handed outcomes than from the U.S. system's preoccupation with zero-sum "rightsism." He details how Germany has dealt with abortion by mandating additional social services like paid leave for women choosing not to have an abortion--not only reducing the number of abortions but, equally important, implicitly affording official respect for families rejecting abortion. This approach has diminished what was once intense polarization over abortion in Germany.
Greene argues that our obsession with rights articulated or presumed implied in the Constitution ("fundamental" rights) gives judges undue influence over policy--a power better left to political processes and authorities, where compromise can be reached through negotiation rather than by all-or-nothing legal decisions. In a pluralistic democracy, the job of the courts, he contends, is to resolve conflicts, reduce the intensity of disagreements, and remind us of what we have in common rather than declaring who's right and who's wrong based on presumed constitutional principles. In doing so, courts, in pursuit of fairness to both sides, need to pay attention to the context of the case--the facts on the ground, rather than relying exclusively on binary rights.
Greene puts forward a compelling case against "rightsism," making it hard to disagree with his position. However, his advocacy for reducing the powers of the courts is likely to meet strong opposition from minorities and women, many of whom perceive to have benefitted more from judicial decisions in recent decades than from legislation (with the notable exception of the current U.S. Supreme Court). I also question the practical feasibility of the implied changes in the legal system given the individualistic and litigious political culture in the U.S.
How Rights Went Wrong is not the easiest reading, but it should be required of students of constitutional law and would be beneficial to anyone interested in the workings of the American judicial system.
Greene also relies on comparisons from other countries (as in Germany, Canada, India, Israel) to illustrate how different systems can produce more even-handed outcomes than from the U.S. system's preoccupation with zero-sum "rightsism." He details how Germany has dealt with abortion by mandating additional social services like paid leave for women choosing not to have an abortion--not only reducing the number of abortions but, equally important, implicitly affording official respect for families rejecting abortion. This approach has diminished what was once intense polarization over abortion in Germany.
Greene argues that our obsession with rights articulated or presumed implied in the Constitution ("fundamental" rights) gives judges undue influence over policy--a power better left to political processes and authorities, where compromise can be reached through negotiation rather than by all-or-nothing legal decisions. In a pluralistic democracy, the job of the courts, he contends, is to resolve conflicts, reduce the intensity of disagreements, and remind us of what we have in common rather than declaring who's right and who's wrong based on presumed constitutional principles. In doing so, courts, in pursuit of fairness to both sides, need to pay attention to the context of the case--the facts on the ground, rather than relying exclusively on binary rights.
Greene puts forward a compelling case against "rightsism," making it hard to disagree with his position. However, his advocacy for reducing the powers of the courts is likely to meet strong opposition from minorities and women, many of whom perceive to have benefitted more from judicial decisions in recent decades than from legislation (with the notable exception of the current U.S. Supreme Court). I also question the practical feasibility of the implied changes in the legal system given the individualistic and litigious political culture in the U.S.
How Rights Went Wrong is not the easiest reading, but it should be required of students of constitutional law and would be beneficial to anyone interested in the workings of the American judicial system.
November 15, 2024
In *How Rights Went Wrong*, U.S. constitutional scholar Jamal Greene offers a compelling critique of America's legal tradition of treating constitutional rights, as interpreted by the Supreme Court, as absolute. Greene argues that this rigid legal approach not only misrepresents the Constitution's intent but also fuels deep societal divisions and legal deadlocks.
The book begins with a historical examination of the U.S. Constitution and the Bill of Rights. Greene contends that the Constitution was primarily designed to outline the structure and limits of federal power, while the Bill of Rights aimed to constrain that power by safeguarding local governance. Thus, he asserts, the rights enshrined in these documents were not meant to elevate individual claims above all else but to empower local governments, including legislators and juries, to resolve disputes. According to Greene, the Supreme Court’s dominance in defining personal rights contradicts this original intent and undermines the flexibility needed to address complex, evolving societal issues.
Building on this foundation, Greene critiques the current legal framework for rights in the U.S., highlighting its many shortcomings. He illustrates how excessive reliance on the Supreme Court concentrates power in an institution ill-suited to reflect the nuances of social progress or the diversity of democratic opinion. This rigidity often leads to clashes between competing rights, such as in the case of abortion, where the right to bodily autonomy and the right to life are seen as irreconcilable. The absolutist framing of such rights fosters polarization, as opposing groups dig in, leaving no space for dialogue or compromise.
Greene also explores how rights are constrained by practical realities, such as limited societal resources (e.g., rights for individuals with disabilities), competing policy objectives (e.g., affirmative action), or basic common sense (e.g., limits on free speech).
To illuminate alternatives, he compares the U.S. approach with the legal systems of England and Germany, where rights are treated as contextual rather than sacred. In these countries, conflicts are addressed through dialogue and case-by-case analysis, with an emphasis on balancing competing interests to achieve practical, socially beneficial outcomes. Greene argues that this more flexible approach fosters civic engagement, promotes compromise, and results in solutions that better align with real-world complexities.
*How Rights Went Wrong* offers a fresh perspective on America's polarization, grounding the issue in the rigidity of its rights-based legal architecture. Greene's insights are especially relevant to today’s social and political challenges. While transforming the U.S. legal system would require immense effort, the book serves as a call to action for readers to rethink their approach to contentious issues. It encourages innovation and dialogue in place of rigid, rights-centered standoffs, inspiring hope for more collaborative and effective problem-solving in the future.
The book begins with a historical examination of the U.S. Constitution and the Bill of Rights. Greene contends that the Constitution was primarily designed to outline the structure and limits of federal power, while the Bill of Rights aimed to constrain that power by safeguarding local governance. Thus, he asserts, the rights enshrined in these documents were not meant to elevate individual claims above all else but to empower local governments, including legislators and juries, to resolve disputes. According to Greene, the Supreme Court’s dominance in defining personal rights contradicts this original intent and undermines the flexibility needed to address complex, evolving societal issues.
Building on this foundation, Greene critiques the current legal framework for rights in the U.S., highlighting its many shortcomings. He illustrates how excessive reliance on the Supreme Court concentrates power in an institution ill-suited to reflect the nuances of social progress or the diversity of democratic opinion. This rigidity often leads to clashes between competing rights, such as in the case of abortion, where the right to bodily autonomy and the right to life are seen as irreconcilable. The absolutist framing of such rights fosters polarization, as opposing groups dig in, leaving no space for dialogue or compromise.
Greene also explores how rights are constrained by practical realities, such as limited societal resources (e.g., rights for individuals with disabilities), competing policy objectives (e.g., affirmative action), or basic common sense (e.g., limits on free speech).
To illuminate alternatives, he compares the U.S. approach with the legal systems of England and Germany, where rights are treated as contextual rather than sacred. In these countries, conflicts are addressed through dialogue and case-by-case analysis, with an emphasis on balancing competing interests to achieve practical, socially beneficial outcomes. Greene argues that this more flexible approach fosters civic engagement, promotes compromise, and results in solutions that better align with real-world complexities.
*How Rights Went Wrong* offers a fresh perspective on America's polarization, grounding the issue in the rigidity of its rights-based legal architecture. Greene's insights are especially relevant to today’s social and political challenges. While transforming the U.S. legal system would require immense effort, the book serves as a call to action for readers to rethink their approach to contentious issues. It encourages innovation and dialogue in place of rigid, rights-centered standoffs, inspiring hope for more collaborative and effective problem-solving in the future.
December 4, 2022
I got more and more excited about this as I went, from initially thinking that it seemed like a nice idea that might have been better as an op-ed or law review article, to feeling like it was actually quite challenging and even radical in an inspiring way. Even though it's styled as a sort of pop-legal book rather than something more academic, I don't know how interesting it would be for non-lawyers, but it was exactly the right book for me given my own journey with the law. When I first got to law school, the idea of strict interpretive rules and canons seemed really appealing, and even though I disagreed with someone like Scalia, there was something that felt undeniably straightforward about his approach and the idea of a consistent interpretive framework.
But since then, I began to struggle with the weird places that kind of "consistency" can lead to, either through the sort of easily manipulable life philosophies - libertarianism, originalism, effective altruism - that some people rely on, or through some of the most frustrating cases I ended up reading in law school (some of which are discussed in this book): the cases that treat affirmative action programs as equivalent to Jim Crow laws, the case finding no issue with the state turning a blind eye to an abusive father who ended up killing his child, etc. And I've struggled with the slippery slope fallacy aspect of how we approach rights, wondering, for example, whether it's really true that we must protect the rights of Nazis to march in Skokie in order to protect anti-war protestors.
So with all that already on my mind, this was the perfect book for me to read - it really digs into a lot of those questions and makes a strong case, with helpful examples from history or from international law, that we need to find our way back to a common-sense version of the law where we resolve disputes base on the facts and not as part of some grander battle of abstract legal philosophies. I will be thinking and talking about this one for a long time, and I wouldn't be surprised if I return to it often in the future as a reference.
But since then, I began to struggle with the weird places that kind of "consistency" can lead to, either through the sort of easily manipulable life philosophies - libertarianism, originalism, effective altruism - that some people rely on, or through some of the most frustrating cases I ended up reading in law school (some of which are discussed in this book): the cases that treat affirmative action programs as equivalent to Jim Crow laws, the case finding no issue with the state turning a blind eye to an abusive father who ended up killing his child, etc. And I've struggled with the slippery slope fallacy aspect of how we approach rights, wondering, for example, whether it's really true that we must protect the rights of Nazis to march in Skokie in order to protect anti-war protestors.
So with all that already on my mind, this was the perfect book for me to read - it really digs into a lot of those questions and makes a strong case, with helpful examples from history or from international law, that we need to find our way back to a common-sense version of the law where we resolve disputes base on the facts and not as part of some grander battle of abstract legal philosophies. I will be thinking and talking about this one for a long time, and I wouldn't be surprised if I return to it often in the future as a reference.
September 11, 2022
There are so many passages in the book that I could repeat, but here are what I believe are most critical: “WE HAVE GIVEN OUR CONSTITUTION TO THE COURTS. The binding of rights to judges runs so deep that most Americans don’t see it as a choice that we make. …Judicial supremacy of this sort wasn’t the Framers’ vision. It isn’t the norm outside of the United States today. And it has consequences. “…“Proportionality (not accepted in the United States) is a structured way of setting rights against government interests…Courts that adopt proportionality tend to recognize a wide array of rights – far wider than in the United States”…”the defining mistake of the twentieth century: we protected the wrong rights.” “We could use Rights mediation instead of minimizing rights or discriminating among them. Rights mediation can channel conflicts of rights away from courts, which are ill-suited to open balancing, and into politics, where negotiation is possible and clear-eyed.” The author has not talked about court packing reforms, etc…because this is not the issue at hand. He has brilliantly shown the workings of the German, Indian, United Kingdom, and Canadian models addressing the same LARGE issues that our Courts have tried to address and shown that rights belong to both sides and this is where mediating rights comes into play. For me, it sadly shows the United States continues to be built on a zero-sum model. And does not ensure that the most basic rights should be met. To thoroughly understand how our courts work and to understand rights issues, this book is phenomenal. Mr. Greene has wisely chosen cases to substantiate his theories. Well done!
December 16, 2024
In a word, to quote the author, this book is - “undercooked.”
It’s sometimes elegantly written statement of the problems facing rights discourse and litigation in the USA. But it’s also sometimes laughably overblown, extremely superficial on solutions, shockingly glib toward lgbt rights to the point that I suspect religious bias, and just generally breezy and hand wavy. That’s why I’ve judged it harshly, as a lawyer and as a queer woman.
Greene is at times a gifted writer and the segments of the book that are historical in nature are well done, accessible to non lawyers and rigorous enough to be moderately satisfying to lawyers. Those segments are the best of what this book has to offer. Likewise, he ably states the nature and depths of the ways in which the Supreme Court repeatedly goes wrong.
But the solutions offered are vaporware, particularly in a country where it is clear the body politic is simply no longer responsive to such quaint concepts as evidence, solidarity, and community. The idea that people, especially people in marginalized minorities, will feel invested in the political and legal process even if we keep losing because maybe next time it’ll be different, is an offensively glib Lucy with the football Sisyphus variant of rights. Think you’ve protected yourselves ? Don’t worry, next election it might all change ! Neat.
This book honestly makes me angry. It should have been a lot better. If this is the best an Ivy League law professor can do, that’s pretty sad.
It’s sometimes elegantly written statement of the problems facing rights discourse and litigation in the USA. But it’s also sometimes laughably overblown, extremely superficial on solutions, shockingly glib toward lgbt rights to the point that I suspect religious bias, and just generally breezy and hand wavy. That’s why I’ve judged it harshly, as a lawyer and as a queer woman.
Greene is at times a gifted writer and the segments of the book that are historical in nature are well done, accessible to non lawyers and rigorous enough to be moderately satisfying to lawyers. Those segments are the best of what this book has to offer. Likewise, he ably states the nature and depths of the ways in which the Supreme Court repeatedly goes wrong.
But the solutions offered are vaporware, particularly in a country where it is clear the body politic is simply no longer responsive to such quaint concepts as evidence, solidarity, and community. The idea that people, especially people in marginalized minorities, will feel invested in the political and legal process even if we keep losing because maybe next time it’ll be different, is an offensively glib Lucy with the football Sisyphus variant of rights. Think you’ve protected yourselves ? Don’t worry, next election it might all change ! Neat.
This book honestly makes me angry. It should have been a lot better. If this is the best an Ivy League law professor can do, that’s pretty sad.
June 12, 2021
We’re constantly hearing about rights, and it’s a really interesting topic that I haven’t read much about, so I decided to grab this book from Jamal Greene, and it’s excellent. I’ll be honest, as someone who isn’t extremely educated in law, some of the discussions went a bit over my head. But for the most part, I think most people can grasp the core ideas of the book. A lot of the book breaks down the history of rights, such as the bill of rights, racism and rights, and some other topics. It then moves into more nuanced conversations about how we have different views of rights, depending on your political and moral leanings. If nothing else, this book will give you a broader perspective on rights, and as a left-leaning atheist, Greene did an awesome job giving me some things to think about when it comes to the rights of religious conservatives.
The last section of the book was my favorite part because Greene covers three important topics when it comes to rights: disability, affirmative action, and free speech on campuses. Personally, I’d love an entire book dedicated to these types of topics. Greene argues that far-too-often the decisions made by judges and courts puts rights into a black or white distinction, but it’s much more subjective than that. During such polarized times where people often seem incapable of having mature, nuanced discussions, we need a lot more books like this so we can empathize with others and have better conversations.
The last section of the book was my favorite part because Greene covers three important topics when it comes to rights: disability, affirmative action, and free speech on campuses. Personally, I’d love an entire book dedicated to these types of topics. Greene argues that far-too-often the decisions made by judges and courts puts rights into a black or white distinction, but it’s much more subjective than that. During such polarized times where people often seem incapable of having mature, nuanced discussions, we need a lot more books like this so we can empathize with others and have better conversations.
January 18, 2023
I read this as part of a book study group, and I’m glad to have been introduced to a book that is certainly outside of my normal sphere of interest. I found it highly interesting, accessible, and educational. In addition to a striking vocabulary, the author has a sensible desire for the courts: that they stop deciding cases based only on strict adherence to and strained application of historical precedents and instead take a more careful circumstantial facts-based approach while leaving as many decisions as possible to be decided by “politics”. I haven’t evaluated the potential negative externalities that could result, but his quoting of “better to be right than consistent” has stuck with me as a takeaway / plea.
Among other takeaways: I had not previously realized the degree to which courts have so stringently and single-mindedly promoted and upheld freedom of speech, to the point of muting universities’ very reasonable and well intentioned attempts at setting forth codes of conduct.
My rating is based not on my particular passion for or natural interest in the topics discussed but rather on the author’s ability to communicate and support an interesting and justly aimed argument. Well done.
Among other takeaways: I had not previously realized the degree to which courts have so stringently and single-mindedly promoted and upheld freedom of speech, to the point of muting universities’ very reasonable and well intentioned attempts at setting forth codes of conduct.
My rating is based not on my particular passion for or natural interest in the topics discussed but rather on the author’s ability to communicate and support an interesting and justly aimed argument. Well done.
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