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<https://newrepublic.com/article/161561/americans-rights-jamal-greene-book-review#>
<https://newrepublic.com/article/161561/americans-rights-jamal-greene-book-review#><https://getpocket.com/edit?url=https://newrepublic.com/article/161561/americans-rights-jamal-greene-book-review>
<mailto:?subject=&body=Why%20Do%20Americans%20Have%20So%20Few%20Rights%3F%0A%0Ahttps%3A%2F%2Fnewrepublic.com%2Farticle%2F161561%2Famericans-rights-jamal-greene-book-review>
Why Do Americans Have So Few Rights?
How we came to rely on the courts, instead of the democratic
process, for justice
New Republic, Samuel Moyn
<https://newrepublic.com/authors/samuel-moyn>/March 9, 2021
ILLUSTRATION BY VAHRAM MURADYAN
In 1991, Harvard Law professor Mary Ann Glendon came out with/Rights
Talk/ <https://bookshop.org/books/rights-talk/9780029118238>, a warning
that Americans had embraced a divisive understanding of rights that
would lead the country into greater and greater strife. Americans, she
argued, tended to regard declaring a right as the solution to any
problem—and the more absolute the right, the better. Getting your right
honored allowed quick victory, often in court rather than politics; but
the wrong people usually won, and even when the right ones did, it left
polarization in its wake. America’s most renowned theoretician of
rights, the late Ronald Dworkin, had argued that rights are like
“trumps” in a card game that make majorities irrelevant, and oblige
judges to ignore them. For Glendon, such a political culture distracted
from communal life and hard questions, and it was not making things
better, but worse.
How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America
Apart
by Jamal Greene
Buy on Bookshop <https://www.bookshop.org/a/1620/9781328518118>
Houghton Mifflin Harcourt, 336 pp., $28.00
Her point was not to take rights less seriously—she celebrated how the
civil rights movement had helped end American apartheid. Born in western
Massachusetts, she had participated in the civil rights movement herself
and married an African American man several years before the Supreme
Court, in/Loving v. Virginia/(1967), decreed that the right to marry
meant anti-miscegenation laws that remained in the states were
unconstitutional. But she worried that the invocation of rights was now
serving only “to heighten our awareness of how deep, stubborn, and
complex are the nation’s problems of social justice.” Judges were
saddled with the task of solving them, which they failed to do; the
Supreme Court could, for instance, order schools to integrate, as it did
in/Brown v. Board of Education/, but it could not prevent the
intractable disputes that followed over busing. The rights that judges
enforced in absolutist terms remained a short list, with speech and
property at the top of the list. And for Glendon, a Roman Catholic, the
addition of abortion rights in/Roe v. Wade/had inflamed the country
rather than unifying it.
She proposed that rights didn’t have to be polarizing.Renowned
<https://today.law.harvard.edu/embracing-the-whole-world-through-the-study-and-teaching-of-law/>as
a comparative lawyer, Glendon wrote glowingly of how Europeans accepted
entitlements favoring laborers and poor people. They could do so because
they treated rights with less absolutism than Americans do. Europeans
had more rights, but adopted them in a more communitarian spirit,
reconciling them with other commitments. To establish a right to
abortion, American progressives relied on the absolute right to
“privacy”; by contrast, German judges hewed out an entitlement to
abortion by acknowledging competing claims and interests, including that
of unborn life. Poor German women, as a result, had a less fortified
abortion right on paper but easier access to abortion in a generous
health system, while American constitutional law gave “poor, pregnant
women” a “constitutional right to privacy and little else.” No fanatical
Reaganite, Glendon was looking for a political alternative back then;
America’s rights culture was not helping bring it about.
Glendon, who retired last summer, has had a troubling trajectory since.
Drifting right from the moderation of/Rights Talk/, she became
increasingly close to Christian reactionaries. She has served as United
States ambassador to the Holy See, and in several Vatican posts,
hardening her opposition to abortion rights (including when sheboycotted
<https://www.chronicle.com/article/harvard-law-professor-declines-notre-dame-medal-over-planned-obama-speech/>Notre
Dame University rather than share the stage with pro-choice President
Barack Obama). On meeting her former research assistant Mike Pompeo as a
Harvard Law student, she recalled thinking: “Boy, this is just the kind
of person we need in politics!” When Pompeo became a catastrophic
secretary of state under Donald Trump, Glendon—since best-known as a
scholar for attempting to reclaim international human rights from what
she takes to be their left-wing abuse—headed Pompeo’s
much-reviledCommission on Unalienable Rights
<https://www.americanprogress.org/issues/security/news/2019/10/31/476632/5-questions-commission-unalienable-rights/>.
American history works in mysterious ways. Glendon’s subsequent
evolution should not distract from the fact that many of her original
arguments were convincing and deep. And now they have been rescued by a
brilliant liberal scholar, who has taken them to a new level by
transforming them, at a moment when America is more divided than ever,
and rights remain as much the problem as the solution.
------------------------------------------------------------------------
Jamal Greene’s new book,/How Rights Went Wrong/
<https://bookshop.org/a/1620/9781328518118>, renovates and updates
Glendon’s indictment of American “rightsism” since the 1960s, with its
own glances abroad for a better way. Now a highly regarded professor at
Columbia Law School, Greene worked for/Sports Illustrated/before going
to law school, and his writing makes the human stakes of otherwise
abstract legal choices clear and dramatic (and with lots of good snark
to lighten the mood).
Whereas Glendon ranged across many areas of law, Greene focuses on
America’s constitutional law. In his version, the Supreme Court needed
to affirm strong rights to end Jim Crow, but sharpened this need into a
universal model that made some rights sacrosanct while putting others in
the shade. The highest court played an indispensable role in ending some
forms of vicious white supremacy in/Brown/and criminal justice cases, by
destroying “separate but equal” institutions and affording defendants
rights against overzealous policing and prosecution. But by the same
token, a range of other desirable values, notably welfare entitlements,
was given no judicial protection.
The main reason, Greene explains, was overreaction to the Supreme
Court’s “defining mistake” in the period between America’s founding and
the civil rights era. The Constitution got captured by ideologies of
economic freedom in the late nineteenth and early twentieth
centuries./Lochner v. New York/(1905), most notably, read a right to
freedom of contract unmolested by the state into America’s fundamental
law, in order to invalidate government regulation of working hours and
workplace safety. In response, Greene shows, jurists like Supreme Court
Justice Oliver Wendell Holmes and especially his self-appointed
progressive heir and later Justice Felix Frankfurter tried to restrict
constitutional protection to a few nonnegotiable rights, and get the
Constitution out of the way otherwise. The results were to allow African
Americans in the civil rights era and other minorities later to use the
Constitution as a sword against majorities oppressing them, while
keeping business interests from adopting it as a shield against majority
rule.
In Greene’s telling, this “discriminating” approach to rights,
magnifying a few and negating most, was a calamity. It made sense to
fortify rights as a battering ram to breach the walls of Jim Crow, while
making sure that economically progressive legislation survived the
assertion of rights of business interests. But in the long run, he
argues, this “two-track” approach has been “completely inadequate, even
dangerous.” Judges picked some winners of the sweepstakes in free
speech, personal autonomy, and private property cases, and awarded them
strong rights; but most people lost.
All along there was another model, which Greene labels “reconciling”
rights. In the United States, two Supreme Court justices named John
Marshall Harlan championed it, one serving after the Civil War and the
other, his grandson, a century later. Though it never took hold here, it
would eventually conquer European and global law under the label
“proportionality.” On this model, the judge faced with a rights claim
must assess how important it is, relative to the state interest that
allegedly threatens it. No or almost no rights ought to be absolute, as
Glendon already ventured. But whereas Glendon mused vaguely of the need
to restore the missing dimensions of community and responsibility,
Greene points to the need for decision-makers to have a fact-based
method for squaring the individual or minority right claimed with the
government or majority interest. Sometimes the first must overcome the
second, but not necessarily, and only after being defined carefully.
Indeed, even with rights many Americans think about as absolute—like the
rights to property and speech—judges already engage in such “mediation,”
weighing interests of individuals and minorities against the collective
and the majority.
This approach would offer a way through some of the more divisive cases
the Supreme Court has seen in recent years. Greene cites as an
example/Masterpiece Cakeshop v. Colorado Civil Rights Commission/
<https://www.mtsu.edu/first-amendment/article/1596/masterpiece-cakeshop-v-colorado-civil-rights-commission>(2017),
in which a baker invoked the Constitution’s First Amendment protection
of religious freedom to get out of baking a wedding cake for a same-sex
couple. In this situation, his religious freedom ran up against his
state’s prohibition on discrimination against gay people. For Greene,
the beginning of wisdom is recognizing that it is a case of colliding
rights, not locating which is the real one. And it is crucial to see how
narrow an exemption Jack Phillips, the baker, wanted: not to
discriminate against gay customers, but to opt out of baking for
same-sex ceremonies for any customer, even if the couple’s straight
friends or relatives wanted to buy from him. It was not “existential,”
but the courts exacerbated a culture war, when they could have taken
sides after giving each side more consideration.
For Greene, as for Glendon before him, the true paradise of rights
thinking is Europe. There the dominant approach is reconciling rights,
or “proportionality.” Like Glendon, Greene compares the divisive/Roe v.
Wade/decision granting women the absolute right to first-trimester
abortion (and no rights to fetuses) to German jurisprudence, which led
to less backlash and discord. For good measure, Greene throws in a
comparison of/Masterpiece Cakeshop/with/Lee v. Ashers Baking/, a very
similar British case in which anti-discrimination law collided with
religious conscience, but with less angst and outrage as a result. In
the dispute in Northern Ireland, the British Supreme Court found that
this baker wasn’t necessarily discriminating against gay people if he
didn’t want to write messages on his cakes supporting the institution of
gay marriage.
In both abortion and gay rights, Greene contends that Americans have
been led into near civil war by the belief that they can have only a
supercharged but small set of rights. It could have been otherwise, he
says, and if judges could move from picking winners (and enraging
losers) to reconciling parties, Americans could embrace more rights for
more people. It is here that Greene goes beyond Glendon, who called for
fewer rights and less rights thinking. Greene’s prescription is in
effect for more numerous but sometimes weaker rights, with strong courts
that can give a greater suite of entitlements all their due—he cites the
example of affirmative action (which the Supreme Court is likely on the
verge of holding unconstitutional) and disability rights. Citizenship
would become more meaningful, even as interpreting rights proportionally
to their importance (and to contending interests) would make sure they
do not alienate and polarize majorities, but instead modestly and
properly check them.
------------------------------------------------------------------------
But if rights divide Americans, would better constitutional judging
really achieve both more just outcomes and more unifying ones?
Greene recognizes that the more rights we believe we have, the more
give-and-take there will have to be around their vindication. “Fights
about rights,” he wisely remarks, “are a byproduct of human pluralism,
an inescapable symptom of the human condition.” As he negotiates fairly
the alternative interests at stake across a series of case studies, he
demonstrates an extraordinary level of empathy toward those whom most
liberals would treat as despicable political enemies. Greene—currently
co-chair of the Facebook oversight board thatadjudicates
<https://www.npr.org/2021/01/23/959985616/facebook-oversight-board-co-chair-on-future-of-trumps-account>the
company’s censorship decisions (including the suspension of Donald
Trump)—shows how great a judge he himself would make, if Joe Biden is
smart enough to appoint him.
But Greene’s focus on how judges should decide rights cases raises the
question of how great a role judges ought to play in rights politics in
the first place. “A constitution for the modern world,” Greene asserts,
“asks judges neither to ignore nor to supplant politics, but rather to
structure it, to push it, and to police it.” No doubt there is a place
for judicial authority when democracy goes badly awry. But the more
rights we claim, and the more they can conflict with other people’s
rights or be overridden by other interests, the less credibly judges can
make a call about where entitlements begin and end. Greene acknowledges
how terrible it is that Americans “see deciding what rights we have and
what rights we don’t have as simply the thing that courts do.” But
within a few pages he himself writes with strange regret that sometimes
“courts necessarily must cede some power to recognize and enforce rights
to political actors”—as if this were a bad thing.
Proportionality, which Greene invokes, tends to be a smoke screen for
transferring lots of policy choice to unelected judges, who are less
accountable than legislators. Greene forthrightly insists that rights
questions are generally not titanic contests of good and evil but rather
questions of judgment, “not the glass we break in the emergency of a
government captured by bigots or morons,” but “predictable byproducts of
ordinary governance in a pluralistic society.” This very fact suggests
that we need to know why judges ought to be allowed to reach a different
conclusion than politicians, except when the latter become truly bigoted
or moronic. Greene convincingly suggests that if judges were less
absolutist about rights, they would “channel conflicts away from courts,
which are ill-suited to open balancing, and into politics.” But then why
not make the project of reconciling our rights an invitation, not so
much to proportionality balancing in courts as to transfer of power away
from the judiciary and toward political branches of government?
For Greene to respond, a lot depends on whether European or global
courts really do a better job. This is open to question. Parallel
British debates around rights, which increasingly resemble American ones
(in spite of the difference that British courts answer to Europe’s human
rights law and its human rights court), suggest not. Rather, if courts
elsewhere have sometimes gotten away with less scrutiny than in
America’s decades of “notorious” Supreme Court justices, it is probably
because for a while their societies were less divided, not because
courts there actually avoid contestable policy choices. Greene’s
comments on the abortion and gay rights areas sometimes read like
invitations to cede even more ground to American conservatives on
cultural issues, in an era when the Supreme Court has let them win on so
many other fronts. It is hard to believe less social conflict would
result, if only conservatives would get their way even more often.
For several decades now, our judges have been failing to enforce
relatively uncontroversial rights for the vulnerable and weak.
At the same time, Americans are more and more recognizing that the role
courts play in our society is less a polarizing than a partisan one,
captured by right-wing ideology, even before Amy Coney
Barrett’sreplacement
<https://www.americanbar.org/groups/committees/death_penalty_representation/project_press/2020/year-end-2020/amy-coney-barrett-replaces-ginsburg-on-supreme-court/>of
Ruth Bader Ginsburg. For several decades now, our judges have been
failing to enforce relatively uncontroversial rights for the vulnerable
and weak, while falling back into the habit of taking the rights of the
powerful and rich seriously. Greene complains that our Constitution
(unlike most around the world) lacks socioeconomic guarantees, and our
Supreme Court has destroyed hopes of seeing educational and welfare
rights interpreted into it. Writing at the dawn of the neoliberal age,
Glendon did much better in noting how systematically the law has been
moving to favor corporate interests over the working class. This has
been anything but an accident, and not just because Republican judges
have been groomed to do so; justices appointed by Democrats are today
more business-friendly than in a century.
Meanwhile, American history shows that citizens owe many rights they
enjoy less to courts interpreting the Constitution (unless you are rich)
than to legislatures providing them in response to social movements.
Congressional statutes like civil rights laws and the Voting Rights Act
of 1965—protections that the Supreme Court has treated very badly—are
good examples, often correcting earlier judicial malfeasance. Disability
rights are a just cause, but faulting the Supreme Court for failing to
read them into the Constitution seems less pressing than pondering the
fact that it was the legislature that acted to declare new entitlements.
The lesson of American history is that the politics of rights needs
democracy more than it needs proportionality. Democratic action for
renovating citizenship could even include more amendments (which
originate in the legislature) for better versions of old rights and
altogether new ones, like socioeconomic protections.
In a provocative part of his book, Greene treats Frankfurter as a cagey
opportunist who wanted to liquidate most rights out of concern with how
far courts served big business, leaving judges to defend only a few
sacred freedoms. “American courts continue to frame rights as all or
nothing,” Greene writes. Yet, unlike Holmes, Frankfurter was not a cynic
about rights; he was a progenitor of democratic ones. “Reliance for the
most precious interests of civilization,” Frankfurter put it in the most
moving passage in constitutional law I know, in a dissent in the case
of/West Virginia Board of Education v. Barnette/(1943), “must be found
outside of their vindication in courts of law.” For Frankfurter, once we
realize that there is a politics of rights, it is our task as democratic
citizens to define and defend what we care about.
This does not mean there are guarantees that our side wins every time.
But rather than pining for some era of lost American unity before rights
talk came, as Glendon did, or calling for better judicial procedures, as
Greene now does, we have to recognize that the only way to make the
citizenship everyone deserves is through democratic contest and
engagement. Greene’s warning about the absolutism of rights in the hands
of judges shows why political decision-making needs to be wrested from
them in the coming years. What Frankfurter said of liberty is true of
equality and solidarity: Our entitlements are those we must provide one
another in clashes of vision, and successes in winning enough backing
for our side. This is not nihilism. It is the recognition that, while
democracy is nowhere close to affirming and defining all the rights we
need, there is no one else to do it but us.
Samuel Moyn <https://newrepublic.com/authors/samuel-moyn>@samuelmoyn
<https://twitter.com/samuelmoyn>
Samuel Moynis professor of law and professor of history at Yale
University. His new book,/Humane: How the United States Abandoned Peace
and Reinvented War/, will be out in the fall.
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