You Have the Right to Remain

Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart

The most important controversies of my lifetime seemingly turn on questions of rights: civil rights, reproductive rights, voting rights, gay rights. Yet as rights have become increasingly well-defined and codified, American society has become increasingly polarized and vitriolic. Rather than settling debates, rights considerations leave us more confused and disappointed. Where did our quest for rights get so thoroughly lost?

Columbia University constitutional law professor Jamal Greene thinks the American tradition frames rights incorrectly. Our rights regime entrusts rights enforcement to judges, not legislatures, and construes rights as a zero-sum equation. Instead, Greene suggests, we should frame rights as relative and situational, not absolute, and the solution as arbitration, not enforcement. Greene’s argument is definitely not simple, but is at least intriguing.

Constitutional rights seem immutable: our Bill of Rights is, as the NRA and ACLU assert, pretty transparent. Not so, says Greene. Our conception of who holds rights, and how, has evolved through history. The rights inscribed were held collectively, not individually. But the Founders’ definition proved unsatisfactory and led directly to the Civil War. Since then, Reconstruction, two World Wars, and the Civil Rights Movement forced further reevaluations.

Americans historically demand rights by a combination of public protest and court challenge. Several rights cases remain historic: Brown vs. BOE, for instance, or Roe vs. Wade. But these cases create or reify rights by appeals to absolute truth. Greene makes hay extensively over abortion rights, noting that in codifying a woman’s right to control her reproductive choices, the court nullified embryonic rights: since both cannot be absolute, one must be negated.

Greene contrasts this with Germany, which faced an abortion rights challenge approximately simultaneously with the United States. Rather than seeing rights as absolute, Germany saw reproductive rights and embryonic rights as positional, and sought to mitigate them. (Greene uses the word “mitigate” often, sometimes in a confusing technical sense.) Notably, as America’s abortion rights debate has become increasingly violent, Germany has remained remarkably calm.

Jamal Greene

This, Greene says, is only one outcome of American-style rights. When every case is a question of absolutes, it encourages litigants to paper over their common ground and paint the other side in the worst possible light. Every Supreme Court case becomes, not an opportunity to see each suit on its own terms, but an existential crisis dividing America’s power base into winners and losers. We stop seeing others as human.

Worse, every case becomes a slippery slope. America remains one of Earth’s few democracies that doesn’t consider food a right, versus, say, weapons. Courts historically fear granting some rights will lead to ballooning demands, and therefore courts, even nominally progressive ones, remain reluctant to redress demonstrable harm. Notwithstanding the occasional celebrated rights win, our absolutist vision of rights makes courts generally timid.

Greene’s prose is dense, but not impenetrable, and sometimes his illustrations need some solemn contemplation. He regularly contrasts American judicial precedent with international courts, mostly European, to demonstrate how different traditions see rights. A certain variety of American conservative might dislike this: the hard right often hates subjecting America to global standards, But an international eye shows that circumstances aren’t inevitable, in court or in life.

I enjoyed Greene’s explication of American case law, though I sometimes needed to read his illustrations more than once to grasp their import. Greene tries to strike a difficult balance, writing for generalist audiences, without condescending to them. Sometimes he errs on the side of being too erudite, not explaining sufficiently for non-lawyers. To his credit, he avoids jargon, so his writing is frequently complex, but never opaque.

Further, Greene does something I’ve seen too infrequently. He has three lengthy chapters on how absolutist thinking obscures important questions for certain population groups. This includes a detailed chapter on disability rights, a field often neglected behind more photogenic race and gender rights. As someone who’s recently become conscious of how pervasive ableism remains, I appreciate this contribution to an often-overlooked debate.

Greene’s position will ruffle many feathers. Rights discussions have loomed large in controversies where America has made improvements, and reframing rights will mean re-litigating several important civil rights victories. But if Greene’s right, that isn’t entirely awful; we’ve missed several opportunities for more nuanced solutions because our love of moral absolutes has clouded our vision.

No solution is perfect, Greene admits, and he doesn’t have every answer. But he attempts to present a better viewpoint for finding those answers, one which escapes absolute moralism. This book won’t solve everything, but hopefully it’ll advance the debate.