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Jamal Greene

How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart Hardcover – March 16, 2021

by Jamal Greene (Author), Jill Lepore (Foreword)

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AMERICAN ASSOCIATION OF PUBLISHERS PROSE AWARD FINALIST | “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.

Print length

368 pages
Language

English
Publisher

Mariner Books
Publication date

March 16, 2021
Dimensions

6 x 1.15 x 9 inches
ISBN-10

1328518116
ISBN-13

978-1328518118
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Editorial Reviews

Review

“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 “When Americans talk about rights, we think in absolutist terms: my right prohibits or preempts your action. But as Jamal Greene observes in this deftly argued book, that notion betrays how our rights were originally conceived. Paying special attention to the issues that most vex us, Greene offers an attractive alternative to one of the most troubling aspects of our constitutional jurisprudence.”—Jack Rakove, Pulitzer Prize–winning author of Original Meanings: Politics and Ideas in the Making of the Constitution “Fastidiously researched and immensely readable, How Rights Went Wrong offers important strategies for advancing human rights in an era when the Supreme Court cannot be counted on to do so. Jamal Greene has written a superb, important book—and a well-timed one, in its plea that we not vest so much power in courts, and that we secure fundamental rights through the political process rather than through constitutional litigation.”—Nadine Strossen, past president, American Civil Liberties Union “A provocative argument for more humility and listening, and less arrogance and dogmatism. Greene urges that we litigate too much and discuss too little—and that ‘rightsism’ is the problem. Perfectly timed and passionately presented, his argument deserves widespread attention.”—Cass R. Sunstein, author of How Change Happens “Greene delves deeply into the legal, cultural, and political matters behind rights conflicts, and laces his account with feisty legal opinions and colorful character sketches. This incisive account persuades.”—Publishers Weekly —

About the Author

JAMAL GREENE is Dwight Professor of Law at Columbia Law School. A graduate of Harvard College and Yale Law School and a former law clerk to Hon. John Paul Stevens, he was a reporter for Sports Illustrated from 1999–2002. He lives in New York City.

Product details

Publisher ‏ : ‎ Mariner Books (March 16, 2021)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 368 pages
ISBN-10 ‏ : ‎ 1328518116
ISBN-13 ‏ : ‎ 978-1328518118
Item Weight ‏ : ‎ 1.17 pounds
Dimensions ‏ : ‎ 6 x 1.15 x 9 inches

Best Sellers Rank: #506,332 in Books (See Top 100 in Books)
- #152 in Civil Rights Law (Books)
- #479 in General Constitutional Law
- #976 in Civil Rights & Liberties (Books)

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JR

Timely book about the failings of SCOTUS

Reviewed in the United States 🇺🇸 on July 3, 2022

Verified Purchase

Written before the decent SCOTUS decisions, this book illustrates major legal issues and how SCOTUS has lost its way. I am not a lawyer, & some of the subtleties were hard to follow, but a case is clearly made that SCOTUS has become dogmatic units Constitutional interpretation s. Of particular interest is how other co uh entries deal with similar issues in a much more nuanced way, with consideration given to both the complexity of today's world & the compass \ goals of modern society. A thoughtful book.

One person found this helpful

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Aaron Tang

A captivating book with broad appeal to educated citizens and trained lawyers alike

Reviewed in the United States 🇺🇸 on April 7, 2021

Verified Purchase

If you are looking for an enthralling and intellectually honest read that provides a novel account for how our culture of constitutional rights has reached its current precipice, I think this book is for you. That is especially true if you are interested in ways to transcend the present gulf between those on the left and right. Unlike many other recent accounts of the Supreme Court and our dangerously polarized moment, Professor Greene is not trying to throw red meat to one side or another; he's interested in offering even-handed and workable ideas for how we can mediate the troubling trends in our politics.

11 people found this helpful

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Andre DePriest

Mind blowing!

Reviewed in the United States 🇺🇸 on June 7, 2021

Verified Purchase

This book is eye opening and thought provoking!

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Kevin L. Nenstiel

You Have the Right to Remain

Reviewed in the United States 🇺🇸 on February 15, 2022

The most important controversies of my lifetime seemingly turn on questions of rights: civil rights, reproductive rights, voting rights, gay rights. Yet as rights have become increasingly well-defined and codified, American society has become increasingly polarized and vitriolic. Rather than settling debates, rights considerations leave us more confused and disappointed. Where did our quest for rights get so thoroughly lost?

Columbia University constitutional law professor Jamal Greene thinks the American tradition frames rights incorrectly. Our rights regime entrusts rights enforcement to judges, not legislatures, and construes rights as a zero-sum equation. Instead, Greene suggests, we should frame rights as relative and situational, not absolute, and the solution as arbitration, not enforcement. Greene’s argument is definitely not simple, but is at least intriguing.

Constitutional rights seem immutable: our Bill of Rights is, as the NRA and ACLU assert, pretty transparent. Not so, says Greene. Our conception of who holds rights, and how, has evolved through history. The rights inscribed were held collectively, not individually. But the Founders’ definition proved unsatisfactory and led directly to the Civil War. Since then, Reconstruction, two World Wars, and the Civil Rights Movement forced further reevaluations.

Americans historically demand rights by a combination of public protest and court challenge. Several rights cases remain historic: Brown vs. BOE, for instance, or Roe vs. Wade. But these cases create or reify rights by appeals to absolute truth. Greene makes hay extensively over abortion rights, noting that in codifying a woman’s right to control her reproductive choices, the court nullified embryonic rights: since both cannot be absolute, one must be negated.

Greene contrasts this with Germany, which faced an abortion rights challenge approximately simultaneously with the United States. Rather than seeing rights as absolute, Germany saw reproductive rights and embryonic rights as positional, and sought to mitigate them. (Greene uses the word “mitigate” often, sometimes in a confusing technical sense.) Notably, as America’s abortion rights debate has become increasingly violent, Germany has remained remarkably calm.

This, Greene says, is only one outcome of American-style rights. When every case is a question of absolutes, it encourages litigants to paper over their common ground and paint the other side in the worst possible light. Every Supreme Court case becomes, not an opportunity to see each suit on its own terms, but an existential crisis dividing America’s power base into winners and losers. We stop seeing others as human.

Worse, every case becomes a slippery slope. America remains one of Earth’s few democracies that doesn’t consider food a right, versus, say, weapons. Courts historically fear granting some rights will lead to ballooning demands, and therefore courts, even nominally progressive ones, remain reluctant to redress demonstrable harm. Notwithstanding the occasional celebrated rights win, our absolutist vision of rights makes courts generally timid.

Greene’s prose is dense, but not impenetrable, and sometimes his illustrations need some solemn contemplation. He regularly contrasts American judicial precedent with international courts, mostly European, to demonstrate how different traditions see rights. A certain variety of American conservative might dislike this: the hard right often hates subjecting America to global standards, But an international eye shows that circumstances aren’t inevitable, in court or in life.

I enjoyed Greene’s explication of American case law, though I sometimes needed to read his illustrations more than once to grasp their import. Greene tries to strike a difficult balance, writing for generalist audiences, without condescending to them. Sometimes he errs on the side of being too erudite, not explaining sufficiently for non-lawyers. To his credit, he avoids jargon, so his writing is frequently complex, but never opaque.

Further, Greene does something I’ve seen too infrequently. He has three lengthy chapters on how absolutist thinking obscures important questions for certain population groups. This includes a detailed chapter on disability rights, a field often neglected behind more photogenic race and gender rights. As someone who’s recently become conscious of how pervasive ableism remains, I appreciate this contribution to an often-overlooked debate.

Greene’s position will ruffle many feathers. Rights discussions have loomed large in controversies where America has made improvements, and reframing rights will mean re-litigating several important civil rights victories. But if Greene’s right, that isn’t entirely awful; we’ve missed several opportunities for more nuanced solutions because our love of moral absolutes has clouded our vision.

No solution is perfect, Greene admits, and he doesn’t have every answer. But he attempts to present a better viewpoint for finding those answers, one which escapes absolute moralism. This book won’t solve everything, but hopefully it’ll advance the debate.

5 people found this helpful

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J. Paul

Thought-provoking view on how and why courts have an outsized impact our lives

Reviewed in the United States 🇺🇸 on July 27, 2022

I was an unqualified to pick up this book as anyone could be. I’ve never read a book on law. I’d never heard of Lochner, Dred Scot, or Griswold. I was generally dismissive of the idea that the Supreme Court bares some responsibility for the divisiveness in the country, but it was not an informed view.

“How Rights Went Wrong” was enlightening, providing insight on how court decisions are made and the history that led to this point. It’s a criticism of the process, not the people or the sides. The idea that the judicial role should be to mediate complex issues and force opposing sides into discussion sounds so obvious on the surface, yet it is not what happens. Instead, judges have created a winner-take-all approach, discouraging politicians from even pretending to work out differences. A fascinating and educational read.

3 people found this helpful

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Andrew Haddad

Fantastic

Reviewed in the United States 🇺🇸 on May 18, 2022

Excellent book

One person found this helpful

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Vale

Good but...

Reviewed in the United States 🇺🇸 on April 5, 2021

Out of 5 I’d give 3 stars. I was disappointed in reading this book. I strongly urge anyone who is familiar with constitutional law or the U.S. legal structure to give it a try but others beware! Some concepts felt cherry picked and there’s some contextual gaps between concepts/cases missing. I wish it dived deeper into a counter argument for why the author thought that the Supreme Court has upheld concept of white supremacy as well. I think the approach to humility is great but the concept of a judges individual morality in judgement loses me. The argument falls apart when you incorporate individual morals into the law. I agree, however, that more cases need to be a compromise and less “winner take all”.

8 people found this helpful

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