How did you feel on June 24, 2022, when the US Supreme Court overturned Roe v. Wade and struck down the constitutionally protected right to abortion?

Did you feel victorious? Elated? Vindicated? Did you feel that a terrible injustice had been corrected? That the Court had at long last recognized the truth? That the Court had finally recognized you?

Or did you feel horrified? Disgusted? Crushed? Did you feel that a terrible injustice had just been committed? That the Court had abandoned truth for ideology? Did you feel like the Court no longer recognized you or your rights?

And if you live outside the US, did you wonder what the hell was going on? How could the Court act like this at all? How could it so completely reverse itself on such a fundamental question?

Unfortunately, the kind of polarization and conflict we’ve seen about abortion has surrounded virtually all our constitutional rights since the founding of the country.

It doesn’t have to be this way.

How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart by Jamal Greene makes a very strong case that America’s approach to constitutional rights – narrow, arcane, judge-centric, winner-take-all – is totally screwed up.

Jamal Greene is Dwight Professor of Law at Columbia Law School. He’s written extensively about constitutional law, rights and the Supreme Court.  Before training as a lawyer, he worked as a baseball reporter for Sports Illustrated. How Rights Went Wrong is his first book.

How Rights Went Wrong:
Why Our Obsession with Rights Is Tearing America Apart
By Jamal Greene
HarperCollins, New York, 2021

America’s Approach to Constitutional Rights

From the very start of How Rights Went Wrong, Greene tells us that America does constitutional rights differently than any other country in the world.

American courts recognize few rights, but they do so strongly. This means our courts act as though rights must be protected at all costs. They treat rights as inviolate, unassailable, virtually absolute.

“Rights are the commandments of our civic religion.”  [p. xiv]

Greene calls this approach “rightsist.”

In practice, this means whenever the Court deals with a case involving constitutional rights, it first and foremost tries to decide if the right exists in the Constitution. For example, does a baker have the right to refuse to bake a wedding cake for a same-sex couple if doing so would go against the baker’s religious beliefs?

If the Court thinks the right does exist, then any government-imposed restrictions on that right must meet a very high bar for justification, known as “strict scrutiny,” or else the Court will strike down the restrictive law or regulation. If the Court thinks the right does not exist in the Constitution, then laws and regulations are usually allowed to stand so long as the government can show some “rational basis” for them.

It’s all about whether a right exists, rather than what it means to hold a right.

What the Court does not do, Greene emphasizes, is try to mediate between conflicting rights, and to leave space for mediation to occur via ordinary politics. The Court doesn’t say that both the baker and the same-sex couple have rights that are worthy of consideration: the baker has a right to practice their religion and the same-sex couple has a right not to be discriminated against. Further, resolution of this conflict will need negotiated compromise and creative solutions that can only come through politics. 

Instead, our courts have taken the approach of discriminating rather than mediating between conflicting rights. Someone has to win, and someone has to lose.

Turns out, this isn’t good for the country. As Greene says, this approach is both wrong and dangerous, and it’s tearing the country apart.

Consequences

The first consequence of America’s winner-take-all approach to constitutional rights is to raise the stakes tremendously in any legal dispute involving rights. If you can convince the Supreme Court that your actions are protected by a constitutional right, then your victory is unassailable and virtually absolute too.

But as Greene notes, the frequency of rights conflicts has increased tremendously since the founding of the country.

That’s because our society is vastly different. White, male property owners aren’t the only people with constitutional rights anymore. We’re far more urban, industrial, and pluralistic now. As our society has become more complex, the role of government has grown. It’s much larger and involved in many more aspects of our personal and working lives. As a result we come into conflict with each other and with government far more often. And that means our rights are in conflict more often too.

Green shows how the Court’s practice of declaring winners and losers in these conflicts, rather than providing guardrails within which rights can be mediated through politics, increases polarization and alienation in our society. Not only that, it actually disempowers legislatures, and the people who elect them, from addressing problems like structural inequality that vex and divide us.

Another consequence of the Court’s fixation on the existence of rights in the Constitution is that it’s overly focused on interpretive questions and methodology. Should the Court take an originalist or textualist approach to constitutional interpretation, or should it adopt a living constitution approach? What does this even mean to you and me?

All these approaches make the same mistake, says Greene. They lead the courts to focus on legal abstractions rather than the facts of each case:

“Courts should devote less time parsing the arcane legalisms — probes of original intentions, pedantic textual analysis, and mechanical application of precedent — that they use to discriminate between the rights they think the Constitution protects and the ones they think it doesn’t, and spend more time examining the facts of the case before them:” [p. xx]

This leads to the third major negative consequence of our approach to rights:

“Rights stop being about justice and start being about the justices.” [p. 94]

There are only nine Supreme Court justices in the US and they are appointed for life. This means their personalities and peccadillos take on outsized importance in how rights conflicts are decided, and how people are affected, often for decades.

And this too raises the stakes, and the polarization, when it comes to confirming new justices to the Supreme Court.

Ultimately:

“The American rightsist approach severs the link between constitutional rights and constitutional justice. It turns rights conflicts into arid interpretive questions that are predetermined by the Constitution’s text and structure, by the original intentions of the long-dead Founders, and by prior court cases. This is great news for lawyers and judges, whose professional training prepares them to mine these sources of wisdom and debate them among themselves. It’s bad news for the rest of us, because it disrupts the law’s contact with the imperatives of modern life.” [p. 93]

Rights Around the World

Other countries are much more generous with their constitutional rights. Many countries grant their people rights to food, shelter, and education. This doesn’t mean governments in these countries are obliged to provide those things to their people, but it does mean these are matters of concern to the courts.

They recognize more rights, but weakly.

For example, Greene tells how the Indian Constitution provides a right to education – something today’s Indian government cannot possibly afford to give to every one of its 1.3 billion people.

The Indian courts understand this. They don’t expect the government to do the impossible. But when the government infringes on the right to education in some way, there has to be a legally valid justification.

Greene spends nearly a whole chapter comparing how German and American courts handled the conflict over abortion rights very differently. In Germany, the courts played more of a mediating role, establishing that both the fetus and the mother have rights, and that government had to protect both. It left space for the political process in Germany to play out so that abortions in the first trimester are relatively easy to obtain today, but women are also provided with excellent and affordable health care, paid parental leave, a right to return to their jobs and other supports and services that make it easier for women to be mothers.

Greene isn’t suggesting that Germany’s solution should be adopted here in the US – though I have to ask why not? What he’s pointing out is that instead of discriminating between rights, mediating between them can lead to better solutions that gain more acceptance and legitimacy from the people.

Unsolicited Feedback

How Rights Went Wrong is arranged in three parts. In the first part, Greene tells the story of how we got to our present state by examining the history of constitutional interpretation. The second part focuses on the problems and dysfunction caused by the Supreme Court’s approach to rights. In the final part Greene looks at some contemporary rights disputes and tries to suggest how mediating between rights, instead of discriminating between them, might lead to different and better outcomes.

Greene covers a lot of US constitutional history in How Rights Went Wrong. His views clearly differ from those held by current crop of right wing Supreme Court justices. I don’t know enough of the history myself to evaluate who’s more likely to be correct, but Greene can hardly be doing worse than the dubious historical analysis found in some recent Supreme Court decisions.

I loved Greene’s concern with people and facts and outcomes. He looks at Supreme Court decision-making in important cases about race, speech, labor, disability, and of course abortion. Reading about court cases from decades or centuries ago might seem as dry as parsley on toast, but Greene tells the stories of the real people involved in each case, and the real-life consequences of the Supreme Court’s decisions with understanding and compassion. Because, when it comes right down to it:

“Conflicts over rights are not about texts and precedents and original meanings. They are about pain.” [p. 167]

I really appreciated reading about how constitutional rights are handled in other countries. Greene cites examples from Canada, Germany, India and the UK. I found it both refreshing and hopeful to see how alternative approaches can work, and work better.  

For me, the most important message of How Rights Went Wrong is that even though I like to be on the “winning side” as much as anyone else, binary decisions about rights are dysfunctional and often lead to ludicrous results. America is becoming more diverse, more complex and yet more polarized all the time. As Greene says:

“The last century gave us the constitutional tools to fight political exclusion. In this century, we need the tools to build a politics of pluralism.” [p. xxi]

Thanks for reading.

Related Links

Let’s Talk About How Truly Bizarre Our Supreme Court Is
Interview with Jamal Green on The Ezra Klein Show podcast, Feb. 4, 2022.

How Rights Went Wrong
Interview with Jamal Greene on the Strict Scrutiny podcast, Aug. 23, 2021.