How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart

• Citation: Vol. 35 No. 2
• Publication year: 2022
• Author: Reviewed by Marc Alexander*

HOW RIGHTS WENT WRONG: WHY OUR OBSESSION WITH RIGHTS IS TEARING AMERICA APART

BY JAMAL GREENE WITH FOREWORD BY JILL LEPORE

Reviewed by Marc Alexander*

In Columbia Law School Professor Jamal Greene's book "How Rights Went Wrong," Greene argues the rights enshrined by constitutional interpretation are used to crush adversaries unable to claim a constitutional right as their own. The baleful consequence is constant competition for scarce rights in our courts — a competition too often resulting in hyperbolic rhetoric and rancor. Thus, while we hold rights sacred, rights are a source of division. Hence the dramatic subtitle of the book: "Why Our Obsession with Rights Is Tearing America Apart." Greene asks us to rethink rights, arguing we would do better to have more rights, though those rights would be weaker and subject to reasonable limitations. One suspects Greene dreams at night of Jefferson's aspirational promise of "Life, Liberty and the Pursuit of Happiness" in the Declaration of Independence, only to wake up in the cold morning sunlight to find a cramped interpretation of Madison's Constitution beside him.

The clever title of Greene's book also displays Greene's enjoyable, witty, and colorful writing, unusual among legal scholars. A former sportswriter for The Harvard Crimson and Sports Illustrated, Greene writes with flair. Of course, sometimes the sheer facility of a writer has the paradoxical effect of putting readers on guard against swallowing arguments hook, line, and sinker.

Greene describes three models of rights: (1) minimizing rights, associated with social conservatives who recognize rights tied to specific constitutional text; (2) discriminating between rights deemed fundamental and those viewed as insubstantial; and (3) mediating rights, a model less about declaring rights based on "parsing the arcane legalisms," and more about reconciling rights, based on attention to the facts in dispute. Greene prefers the "mediating rights" model.

While "mediating rights" may seem obscure, it makes intuitive sense to mediators. In a mediation, the mediator often tells the parties something like this: don't spend time overthinking matters of principle. Focus on interests and the facts. Try to reach a practical resolution, a smart result both sides can live with. Mediators tend to get frustrated with parties who insist, "But it's a matter of principle." Mediators tell the parties if they want a harsh thumbs up or thumbs down decision about their rights, they can have their day in court, but one side risks being unhappy with the result. Greene wants to mediate rather than fetishize rights. "Outside the shadow of

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rights," observes Greene, "folks usually just kind of work things out." Greene's cavalier comment about working things out previews a problem with the "mediating rights" model, because judges do care about evidence, facts, the law, and principle, and are called upon to make hard decisions when things don't just work out.

Greene's argument that we need more, but weaker rights, leads him down some curious rabbit holes. For example, many of us may have learned the Bill of Rights exists to protect our personal rights from an overreaching government. Like Alice in Wonderland, Greene seems to say, "I do live in a topsy-turvy...