Thirty years ago, Mary Ann Glendon wrote: “discourse about rights has become the principal language that we use in public to discuss weighty questions of right and wrong, but time and again it proves inadequate, or leads to a standoff of one right against another” (Rights Talk: The Impoverishment of Political Discourse, NY: The Free Press, 1991). Our American obsession with individual rights and the anti-social and anti-political impact of our American addiction to rights-language has been an ongoing preoccupation of mine at least since back when I was in academia. Deplorable decisions like Roe v. Wade (1973), DC v. Heller (2008), and Citizens United v FEC (2010) represent a malignant trio of dubious decisions, which have in common the Court's creation of questionable constitutional "rights," which have their basis not so much in anything in the constitution as in contemporary political ideologies. Such cases have not only done enormous damage to our society and our politics, they have also contributed to the judiciary having become ry having be the Court's undesirable status as our political system's "most dangerous branch" - to borrow the title of The Most Dangerous Branch David Kaplan's insightful 2018 book.
Now, Columbia University legal scholar Jamal Greene has further enlightened this discussion of what he calls "rightsism" in How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Houghton Mifflin, 2021). For Greene, our exaggerated rights regime highlights "a common but unrecognized problem in American law: in striving to take rights seriously, we take them too literally. We believe that holding a right means getting a judge to let us do whatever the right protects. ... But in a modern, cosmopolitan society, rights are not few and precious. They are many and ubiquitous."
If the problem of the 20th century was (as W.e.B. DuBois said) the color-line, that of the 21st century, Greene says, is the right-line. "Our opponent in the rights conflict becomes not simply a fellow citizen who disagrees with us, but an enemy out to destroy us. Law becomes reducible to winners and losers, to which side you are on, which tribe you affiliate with. With stakes this high, polarization should not just be expected but is indeed the only sensible response." In contrast, Greene, proposes "a strategy of rights mediation," in which U.S. courts should "recognize more rights, but weakly. In determining that someone holds a constitutional right, judges should be more generous, more respectful of the differences among us, of the idiosyncrasies of our personal values and commitments. But that same respect should lead judges to be more discerning in deciding how far my right goes as it comes predictably into conflict with the rights of others." This "would mean shifting our collective emphasis from whether the Constitution includes particular rights to what the government is actually doing to people and why."
Greene goes back to the American founding and recalls that the framers were less interested in protecting minorities' "rights" (as we tend to treat the matter today) than in protecting the majority from factional or executive tyranny and state and local autonomy from federal interference. For various reasons that had to change and did, but in a way which has become unsustainable today.
The peculiarly absolutist way rights jurisprudence has developed in the U.S. (in conspicuous contrast, for example, to Canada or Germany) had frustrated the very purpose and possibilities of politics. "The purpose of politics is to negotiate over disagreement. The purpose of law is to set the ground rules for that negotiation. But negotiation requires that each side have leverage. The American approach to rights conflicts makes that impossible."
It also increases political polarization and alienation. "Treating a rights conflict as a question of who has rights and who doesn’t degrades our relationship to the law and to each other. By denying the loser any claim of rights, the court tells him not just that he has lost but that he does not matter. Although the loser’s interests and projects remain important—perhaps even essential—to him, he is made an outsider to the law. He may become suspicious of political institutions. He may choose to participate in civic life sparsely or even subversively."
For those unfamiliar with the history of the American Revolution and the Bill of Rights, Green offers a crash course - quite different from the popular version being promoted today. So, for example, whereas the currently fashionable view is to view the first amendment as protecting individuals form religion, Greene shows how its original purpose was to protect religion (in the form of state and local churches) from federal interference. As for the novel view that the second amendment was about protecting an individual gun right, Greene recognizes that ads "rubbish." His treatment of keep constitutional cases over the course of American history highlights the high price we as a society are paying for our increasing ignorance of even basic American history.
Ultimately what Greene proposes is not the obviously unrealistic alternative of no rights, but "a better way to think about rights. Embraced and practiced successfully the world over, it’s an approach that, by encouraging decision-makers to mediate rather than discriminate among rights, by emphasizing mutual respect for multiple and competing values and commitments, brings rights closer to justice and aspires to bring us closer to each other. The suggestions offered for how courts should address three trenchant conflicts in particular—over disability rights, affirmative action, and campus speech—are invitations, not manifestos, in the spirit of humility to which we all should aspire. I don’t have all the answers to these challenges, and neither do judges."
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