How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart
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- Create Date：2021-05-20 08:52:31
- Update Date：2025-09-06
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- Author：Jamal Greene
- ISBN：1328518116
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Summary
“Essential and fresh and vital 。 。 。 It is the argument of this important book that until Americans can reimagine rights， there is no path forward， and there is， especially， no way to get race right。 No peace， no justice。”—from the foreword by Jill Lepore， New York Times best-selling author of These Truths: A History of the United States
An eminent constitutional scholar reveals how our approach to rights is dividing America， and shows how we can build a better system of justice。
You have the right to remain silent—and the right to free speech。 The right to worship， and to doubt。 The right to be free from discrimination， and to hate。 The right to life， and the right to own a gun。
Rights are a sacred part of American identity。 Yet they also are the source of some of our greatest divisions。 We believe that holding a right means getting a judge to let us do whatever the right protects。 And judges， for their part， seem unable to imagine two rights coexisting—reducing the law to winners and losers。 The resulting system of legal absolutism distorts our law， debases our politics， and exacerbates our differences rather than helping to bridge them。
As renowned legal scholar Jamal Greene argues， we need a different approach—and in How Rights Went Wrong， he proposes one that the Founders would have approved。 They preferred to leave rights to legislatures and juries， not judges， he explains。 Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights。 In this paradigm-shifting account， Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights， while updating them to confront the challenges of the twenty-first century。
An eminent constitutional scholar reveals how our approach to rights is dividing America， and shows how we can build a better system of justice。
You have the right to remain silent—and the right to free speech。 The right to worship， and to doubt。 The right to be free from discrimination， and to hate。 The right to life， and the right to own a gun。
Rights are a sacred part of American identity。 Yet they also are the source of some of our greatest divisions。 We believe that holding a right means getting a judge to let us do whatever the right protects。 And judges， for their part， seem unable to imagine two rights coexisting—reducing the law to winners and losers。 The resulting system of legal absolutism distorts our law， debases our politics， and exacerbates our differences rather than helping to bridge them。
As renowned legal scholar Jamal Greene argues， we need a different approach—and in How Rights Went Wrong， he proposes one that the Founders would have approved。 They preferred to leave rights to legislatures and juries， not judges， he explains。 Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights。 In this paradigm-shifting account， Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights， while updating them to confront the challenges of the twenty-first century。
Reviews
Eric
，
I happen to believe that our modern scheme of insisting on our rights， as Greene spells it out here， could be the death knell for our representative republic。 Sadly， both the major political parties and the mainstream media contribute to making the issue a worse one。 We shall not be surprised if the wheels continue to fall off the bus。
Mandy
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Though in the beginning， I started to expect a rant with little backing， I was happily proven wrong。 Our current system， indeed us not working。 The author proposes well researched， relevant and thought provoking options from which we could benefit。
Ietrio
，
Hail Big Brother！ Love Big Brother！ And get it once and for all that you having rights hurts Big Brother。 You don't need any rights。 Big Brother loves you and He， in His wisdom， will take good care of you。 And if that does not move you， remember: America is just a piece of cloth， like the flag， and it is deteriorating from your individuality。 Just look at the happy Chinese。 They are united。 Look at the happy North Koreans。 They are united。So the rights should be retold。 You would have:-- The Rig Hail Big Brother！ Love Big Brother！ And get it once and for all that you having rights hurts Big Brother。 You don't need any rights。 Big Brother loves you and He， in His wisdom， will take good care of you。 And if that does not move you， remember: America is just a piece of cloth， like the flag， and it is deteriorating from your individuality。 Just look at the happy Chinese。 They are united。 Look at the happy North Koreans。 They are united。So the rights should be retold。 You would have:-- The Right to love Big Brother-- The Right to obey Big Brother-- The Right to do what Big Brother asks you to do-- The Right to tell on your neighbors who don't love Big Brother as much as you do-- The Right to pay your taxes on timeAnd probably five is more than enough for Greene。 。。。more
Blyden
，
About two weeks ago I saw an opinion piece by Jamal Greene about rights and vaccination which was a promo for his book which was just about to be released。 I rarely buy books， or much of anything， based on a single opinion piece or review， but this looked very interesting， particularly since I have long had a semi-professional interest in rights and justice， so I ordered a copy。 It did not disappoint。 The book is written in a very easy-to-read manner。 There are nine chapters， three each in three About two weeks ago I saw an opinion piece by Jamal Greene about rights and vaccination which was a promo for his book which was just about to be released。 I rarely buy books， or much of anything， based on a single opinion piece or review， but this looked very interesting， particularly since I have long had a semi-professional interest in rights and justice， so I ordered a copy。 It did not disappoint。 The book is written in a very easy-to-read manner。 There are nine chapters， three each in three sections。 The first section lays out the argument。 The other two sections are somewhat distinct from each other， but broadly， they both cover applications of the ideas to particular topics and judicial cases。 The core idea of the book starts with the recognition that when courts face competing rights they have three available strategies: minimize rights， discriminate among rights， or mediate among them。 Greene argues that in the U。S。 the dominant strategy is to discriminate among rights， hold a few rights almost sacrosanct， and thus putting little value on many other rights， but that in much of the rest of the world the dominant strategy is mediation。 He further contends that the mediation approach offers a number of social benefits， while the discrimination approach is causing some of the litigation problems that our nation is enduring。 I find this core argument very attractive and offering a great deal of potential。 Even if there was nothing else in the book， simply exposing yourself to this line of thought would be worth the price of it。 I am not sufficiently familiar with SCOTUS cases to evaluate Greene's analyses of past cases， but they at least seem solid to me， and I trust in his experience as a former law clerk for Hon。 John Paul Stevens， Yale Law School degree， and current status as a Professor of Law at Columbia Law School。 The threads of legal history in the book were interesting to read。 In my view a right is a justice claim。 It is curious that， after reading Greene's book， in which rights are the central concept -- he even has a chapter on "Rightsism" -- it isn't entirely clear to me what a right is in his view。 He comes into talking about rights with specific examples rather than laying out a definition。 At what point （p。92） he suggests that a right may be anything that makes a person's life meaningful， or maybe he is only saying that is what a right is in Europe。 Unclear。 I found some of the topics Greene chooses to illustrate his argument somewhat peculiar。 Chapter Nine is on free speech， and Greene seems， to my sensibility， too willing to sacrifice free speech for "civility"。 In my view enforcements of "civility" are almost always exercises in oppression。 He also seems to have different standards for progressive free speech than the free speech of， say， Nazis and overt racists。 One of the middle chapters focuses on the impact of the American approach on polarizing abortion in the United States。 He contrasts the US history on abortion against that of Germany and suggests that the far less polarized German outcome is a result of the difference between US courts discriminating between rights versus German courts mediating among them。 I wonder if the polarization is not more directly due to the US having an electoral system that has exactly two dominant parties， whereas there are several major parties in Germany。 That difference alone might explain the polarization in the US and the need to work with other parties in Germany。 Moreover， I came away from that chapter wondering whether the German situation was preferable。 Ok， so there is less polarization， but that comes with the idea that a fetus has political rights， which seems rather absurd。 How can a fetus， lacking any social relations， except possibly to its mother if being in utero is a *social* relation， have rights？ Only， like a corporation or an object to relations among other people。 Moreover， if fetuses have rights， but abortion is just as available， or more so， then what does it mean to say they have rights？ The argument seems to imply that courts in Europe and other parts of the world recognize rights， but then make legal decisions based mainly on other facts， suggesting that rights as such have little meaning there。 It makes sense to mediate among rights， but it seems silly to say that a right exists， e。g。 the right of a fetus to be born， if that right is almost never going to prevail over and against other rights， e。g。 the rights of the mother。 What kind of a justice claim is that？ It seems more straightforward to just say that the mother has the right。 His next chapter delves into the wedding cake bakers vs。 gay couples getting married topic， again with comparisons between US and European or British courts。 This also seems to me a weak choice of example， because I think religious objections should apply （1） only to individuals， not corporations， and （2） only to situations where it would require a person to engage in a type of action contrary to their religious beliefs。 If you make cakes， you make cakes。 Who the customer is。 What message the customer puts on the cake is in no way a change in your behavior as a maker of cake。 You aren't being asked to do anything that you don't already do for all of your customers。 Greene says it "was a hard case"， but it seems like it should be an absurdly simple case。 Chapters Seven on Disability is especially good， and Chapter Eight on Affirmative Action is also strong。 One of the most interesting tangents I took from the book， in the section "Color Blindness and the Constitution"， starting on p。199， concerns how the standards SCOTUS uses for structural inequalities and the standard it uses for their remedies are very different。 There is， in effect， no standard for structural inequalities。 The SCOTUS approach to structural inequalities is that they are not unconstitutional。 Conversely， the standard for remedies almost precludes there being any remedy， because actions that take race into consideration are seen as racism even if structural inequalities are not。 In effect， Greene is showing that very schemes that the Supreme Court of the United States uses to assess Constitutionality are themselves systemically racist。 He is calling the SCOTUS institutionally racist， and he would seem to be right。 Different views on the underlying principles of abortion and religious freedom cases notwithstanding， I think this book makes an extremely interesting and useful point that shows one of the key ways in which the U。S。 justice system has gone astray， making it challenging to render a good approximation of justice， and how it might be remedied， if we pay attention and have the political will to do so。 。。。more
Sarah
，
Added because of this author interview on the 3/13/21 episode of the Amicus podcast （starts at ~44:00）: https://slate。com/podcasts/amicus/202。。。 Added because of this author interview on the 3/13/21 episode of the Amicus podcast （starts at ~44:00）: https://slate。com/podcasts/amicus/202。。。 。。。more
Jeff
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