How Rights Went Wrong

January 4, 2021
Columbia Law School professor Greene debuts with a spirited critique of the U.S. judiciary’s “all-or-nothing” approach to deciding conflicts over constitutional rights. According to Greene, the origins of this approach go back to Supreme Court justice Oliver Wendell Holmes Jr.’s dissenting opinion in the 1905 case New York v. Lochner, which suggested that certain rights were more important than others and should be given “special treatment” by judges. Greene delves into the 1960s civil rights cases that cemented the inviolability of freedom of speech, the right to privacy, and racial equality, among other “fundamental” rights, and laments how these rulings have been interpreted to mean that when one person is found to possess such a right, those with legitimate conflicting interests have no rights at all. Greene argues that “proportionality,” a judicial approach in which courts seek to balance competing claims and craft decisions recognizing diverse interests for the benefit of society, would be better suited to resolving today’s most complex and difficult issues, including gun control, affirmative action, and abortion rights. Greene delves deeply into the legal, cultural, and political matters behind rights conflicts, and laces his account with feisty legal opinions and colorful character sketches. This incisive account persuades.

February 1, 2021
A Columbia Law School professor reframes the framers to show American rights in a new light. In this provocative, dense assessment, Greene, a former clerk for John Paul Stevens, argues that we have handed over interpretation of the Constitution to the courts, which have veered from the vision of the Founders. Instead of a system in which societal rights are decided by communities and elected representatives, our significant legal disputes are often settled by judges in zero-sum proceedings that rest on interpretations of documents written long before any of the relevant parties were born. The author uses the term "rightsism" to describe a situation in which judges have too much power. Greene advances the pertinent argument that, rather than determine winners and losers, courts should look for middle ways: "Too often," he writes, "U.S. courts...see their job in constitutional cases as declaring who's right. The answer, so often, is neither side--or both." The Constitution seldom contains clear answers to the complex questions of our age. Rather than look back, judges should, as do their counterparts in other countries, scrutinize individual cases with an eye to bringing sides together. "Judges, more than most," writes Greene, "have the power to make it better, and instead they are making it worse." Though the author presents a valid argument, the presentation is lacking. He describes a dizzying number of cases and characters, which makes the text overwhelming for lay readers. The first third of the book, which includes an introduction and historical overview, reads like a lecture--e.g., "Rather than concede a significant role for interest balancing or moral deliberation as essential to rights adjudication, [judges] fall back on their narrow professional training." Greene's arguments, which may be useful to legal scholars and students, deserve ample airing, but his style doesn't aid wide comprehension. Jill Lepore provides the foreword. Intended for general readers but unlikely to register with many non-legal eagles.

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October 22, 2021

Constitutional scholar Greene (Columbia Law Sch.) criticizes the U.S. judiciary's absolutist approach to the exercise of individuals' competing rights. (The conflicts that result when, for instance, one person's right to life clashes with another person's right to bear arms.) He contends that the courts have flattened the texture of Constitutional rights in morally arbitrary ways that widen the gap between law and justice and deepen the nation's polarizing instability. The courts have cast competing rights as questions of who has the right and who doesn't--an either/or binary approach that ignores the multilayered nuances of rights necessary to maintaining civil communities in the 21st century, Greene insists. He focuses particularly on what he calls the U.S. Supreme Court's long history of protecting the "wrong" rights--as in its jurisprudence on race, which often pitted the right to speech (including racist speech) against the right to live free from discrimination. Greene demonstrates how a misguided judiciary has discriminated between or simply minimized constitutional rights, rather than mediating so as to enforce rights on all sides. He urges replacing the current all-or-nothing, winner-take-all mode of settling competing rights, and instead adopting an approach called "proportionality," which he admits is unusual in U.S. legal practice but is increasingly the norm around the world and would also resonate with the Constitution's framers, in his view. Greene's argument to rehabilitate Constitutional rights embraces alternative dispute resolution; he pushes for more mediation, in order to channel conflicts away from courts that he believes are ill suited to the clear-eyed negotiation essential to dealing with structural inequalities and to restoring Americans' relationship to the law and to each other. VERDICT Provocative reading for those interested in legal reform and a civil society.--Thomas J. Davis, Arizona State Univ., Tempe

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