THE POLITICS OF PROPORTIONALITY.

• Author: Tebbe, Nelson
• Position: Annual Book Review Issue

HOW RIGHTS WENT WRONG: WHY OUR OBSESSION WITH RIGHTS IS TEARING AMERICA APART. By Jamal Greene. Boston: Houghton Mifflin Harcourt. 2021. Pp. xxxvi, 299. $28.

INTRODUCTION

Jamal Greene (1) believes that something has gone badly awry in the way Americans think about rights. Treating them as absolutes raises the stakes of social conflict and drives a wedge between law and justice. And the American tendency to entrust rights enforcement primarily to judges only compounds the problem. Courts are institutionally inclined to declare winners and losers, leading citizens to treat each other as legal and political adversaries and, increasingly, as enemies. At a moment when political polarization is reaching historic levels, constitutional law is contributing to the problem.

Greene wants to change all of that. He thinks it can be done by encouraging us to think of rights as interests that must be accommodated together with other conflicting interests, which themselves often have the status of rights. He wants to lower the level of abstraction at which disputes are debated so that we can focus on particular facts, opening up solutions that are more balanced and less binary. And he urges us to shift responsibility from courts to democratically responsive bodies, which are institutionally designed to achieve compromise and are practiced in its art.

We begin this Review by laying out Greene's main arguments for adopting a different way of thinking about rights. In brief, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart proposes that Americans move toward European-style proportionality review as the basis for adjudicating rights conflicts. (2) This approach, which emphasizes transparency in weighing competing rights and interests, differs from two other prominent theories of progressive constitutionalism, one that treats "rights as trumps" and invests judges with the power to determine and apply them, (3) and another, ascendent on the left, that largely rejects judicial review in favor of legislative supremacy. (4) According to Greene, proportionality provides a middle path, one that preserves a place for judicial protection of rights in our constitutional system while remedying some of the pathologies that have afflicted our legal and political culture. His important contribution already has received a great deal of attention, and rightly so. (5)

After describing Greene's view, we then raise a series of questions about proportionality as a model for adjudicating rights conflicts. One is whether proportionality is justified as a matter of ideal theory. Even if it is well applied, is this approach normatively attractive? A second question is which institutions ought to apply this form of review--courts, legislatures, executive officials, or some other democratic bodies? A third is how proportionality works in practice, under nonideal conditions. Finally, Greene's account leads us to ask about the relation between two aims that seem to motivate much of his argument, namely, reducing the level of conflict in our society and achieving a better balance of rights and interests. In short, proportionality promises to deliver more peace and more justice. Our last question is whether implementing proportionality review today would require significant trade-offs between these ends.

In asking these questions, our aims are mainly analytical, separating out various types of considerations that might count as reasons for supporting proportionality review. But we also press beyond the boundaries of the book to ask questions about judicial politics and practice that Greene leaves aside. We consider whether proportionality should be adopted as a progressive reform strategy under polarized political conditions. The answer may turn on whether compromises for the sake of reducing social conflict could lead, paradoxically, to less peace and less justice.

1. PROPORTIONALITY

   1. Rights Inflation and Conflict Deflation

      Here are Greene's main contributions as we understand them. For starters, he worries that American constitutional practice too often understands rights to require binary judgments. When a right is recognized, it prevails over all countervailing considerations except perhaps a narrow set of "compelling interests." (6) When a right is not recognized, courts applying rational basis review accept reasons that may be entirely hypothetical and patently divorced from legislatures' actual motivations. (7) Either way, constitutional actors downplay or discount the rationales for regulation--just the opposite of forcing lawmakers to give reasons and then taking those reasons seriously.

      Because courts are structured to declare winners, moreover, they often signal that the losers' interests are inconsequential or unimportant (pp. xxxii-xxxiii). And that raises the stakes of constitutional conflicts, which include social issues about which many people are passionate. (8)

      Although it might seem that Greene wants to reduce the role of rights talk, actually he proposes just the opposite. He envisions a proliferation of rights protections, so that more rather than fewer interests are treated as constitutionally significant. In his view, constitutional recognition should extend to a panoply of interests, including social and economic rights to education, housing, food, and health care (pp. 76-79, 94-99); protection against disparate racial impacts (pp. 107-09); rights against various forms of discrimination by private actors (pp. 3, 184-86); disability rights (pp. 172-73); and the importance of fetal life (pp. 138-39). (9) This "rights inflation," as it is known in the literature, (10) would increase the number of conflicts that feature rights on both sides.

      Rights inflation might be thought to inflame conflicts by strengthening opposing interests, but Greene believes it would actually cool passions. Those on the losing side of court decisions would feel that their interests were appreciated and valued. Widening our understanding of what counts as a right would also increase the prevalence of compromises and thereby ameliorate social conflict.

      One way to find compromises, Greene believes, is to focus on facts. By paying attention to the particularities of contests, decisionmakers can find solutions that are less binary, that recognize the importance of interests on both sides, and that involve nuanced outcomes. (11) Here, Greene is echoing a theme in the literature on constitutional polarization, according to which principles are uncompromising and alienating, whereas pragmatic considerations can lead to understanding and conciliation. (12) While he does not articulate the full argument, Greene does indicate that constitutional actors can make progress by focusing on factual specifics rather than relying on generalized rules or abstract principles of justice. (13)

      Interestingly, given his critique of broad principles, Greene also thinks that a more measured, case-by-case approach will allow decisionmakers to better approximate the demands of justice. While the rules that structure legal interpretation are designed to achieve formal regularity, they cannot deliver substantive fairness as effectively as particularized decisionmaking, which can appreciate the interests of all parties and give each of them their due (pp. 9394). Because just solutions will often track the details of conflicts, the thought goes, wise decisionmakers will concentrate on the specifics of the parties and their claims rather than on principles that necessarily reside at a higher level of abstraction. (14)

      In the book's account, the institutions best suited to resolving these types of rights conflicts are not courts but legislatures, executive agencies, juries, churches, families, and other organizations within democratic society (pp. xxii, xxxv, 7, 30, 167-68). Greene claims that at the Founding rights were not expected to be enforced exclusively or even primarily by judges; they were instead seen to be the stuff of lawmaking and jury deliberation. (15) Juries were entrusted with the responsibility of determining whether laws exceeded the boundaries of what was considered morally reasonable within their communities (p. 12). They could serve this role because rights originally were thought to protect majorities against the government rather than minorities from political majorities (pp. 13-18). Today as well, legislatures are often better suited to the balancing of values that Greene envisions than are courts, with their institutional tendency toward all-or-nothing outcomes (p. 8). Judges practicing proportionality will more often refer disputes to lawmakers and administrative agencies, or defer to them, rather than override their processes by exercising the power of judicial review. (16) Greene suggests that more judges should recognize the limitations on their institutional capacity to manage the moral pluralism of a diverse society. (17)

      In urging us away from what he argues is the prevalent American approach to rights--binary, categorical, absolutist, and selective--Greene describes an alternative framework, the outlines of which have become familiar from the exercise of proportionality review by constitutional courts around the world. (18) Within this framework, judges should ask, first, whether there is a rough relationship between the government's policy and some legitimate goal (p. 110). Second, they should see whether the government could achieve its end through means that are less burdensome or discriminatory. (19) Finally, courts should ask whether "the government's policy [is] seriously out of proportion to the burdens it imposes on rights" (p. 110). Even if the government's end is legitimate, and even if the means are appropriately tailored, the policy might fall if the cost to an individual right is too high. (20)

   2. Against Trumps

      Greene claims that American rights jurisprudence departs from his vision in several specific...