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“I Want Ordinary Americans to Feel Like They Have a Stake in How the Constitution is Interpreted and Developed” – Jamal Greene on the Role Rights Play in the U.S. Legal System

by Brendan Dowling on March 18, 2021

In his compelling new book, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart, legal scholar Jamal Greene examines the evolving role rights have played in U.S. legal history and how they have come to play such an integral role in American identity. Commencing with how the Framers of the Constitution originally viewed the role of rights in the judicial process, Greene guides the reader through key moments in U.S. legal history to study what he feels is the increasingly divisive status rights have assumed over time. In considering key cases and historical figures, Greene explores the polarizing effect rights have had on the country’s culture, and posits the changes necessary in order to move away from the current binary definition of rights. Greene, the Dwight Professor of Law at Columbia University’s Law School, has earned high praise for his first book. Of How Rights Went Wrong, Publishers Weekly raved, “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” and past president of the ACLU Nadine Strossen hailed it as “fastidiously researched and immensely readable.”

A term that comes up frequently in the book is “rightsism.” Can you talk about “rightsism?” How do you define it and how did it become the overriding principle of law in the states?

The term refers to discriminating between rights. We use “isms” in the context of racism or sexism, when we mean discriminating on the basis of race or sex, so I use that term to say we’ve developed a legal culture that approaches rights conflicts as if we have to discriminate against one right or the other. For example, in the case against the bake shop where the guy doesn’t want to bake a cake for a same sex wedding, the case is framed as “Do we care more about the equality rights of gays and lesbians?” or “Do we care more about either freedom of religion or freedom of speech?,” the kinds of rights the baker is claiming. As opposed to assuming the value of both rights and thinking about how they can fit together. What is it about the particular factual situation that makes the actions of the people in the case more burdensome or less burdensome on the rights of others involved? In the book, there’s a chapter that talks about that particular case. It says no one is talking about what ways are there to be respectful of both the rights of the baker, the rights of the couple, and the rights of the people of the state of Colorado, who have passed an anti-discrimination law, by, for example, requiring the baker serve the couple but not requiring that he be the one to bake the cake? That would be a way of trying to respect both values.

Likewise, in abortion conflicts, where we think of it as the right of the fetus versus the right of the woman to hold autonomy over her body. We talk about them as if they’re irreconcilable, but there are ways of trying to negotiate the rights that respect the rights on both sides of the conflict. It really comes from a frame of mind that I believe is an artifact of the 1960s and 1970s, when courts were faced with a deluge of rights claims from the women’s rights movement, from the sexual revolution, from the criminal justice movement, and from the free speech movement. Courts in the United States felt like they had to pick out which rights were superspecial and which were not. That created a binary that we’re still really stuck in.

In terms of the binary we’re in, how do we move out of this way of thinking towards the more mediation-approached basis that you discuss in the book?

So there are a couple of ways to think about that. You can think about “What are the practical steps you take?” Step one is you can write a book about it and pitch it lots of Americans, including lawyers and judges, but also including interested people who are not lawyers. (laughs) Intellectually, there are models everywhere in the world. Part of the argument in the book is that we’re really the only ones in the world who treat rights in this way. I could drive six hours north of where I am right now and I’d be in a country that is very similar to the United States in a lot of respects, but is one of the leaders of the world in approaching rights in ways that look very carefully at the facts of a particular situation. One of my favorite examples in the book is a Canadian case involving the right to sign language interpreters in a hospitals. This is something where the U.S. court would say there is no such right.

When you treat rights as binaries, you believe that declaring someone to have a right gives them an almost absolute power. It means then that you’re parsimonious and stingy in giving out rights in the first place. U.S. courts have been very skeptical of a right to something: a right to health care, or a right to assistance, in this case, a right to sign language interpretation. This kind of case would go nowhere in the U.S., but the Canadian court said, “The question here has to do with what is the burden on people who are hearing impaired. What is the cost associated with providing this service?” [It’s helpful to ask] those kinds of factual questions, rather than a kind of existential question about whether you have a certain kind of right. I’m trying to move us away from thinking about these kinds of metaphysical questions—”Is there a right to health care?”—and to think about more pedestrian questions that require judges to make judgments about the benefits and burdens of particular governmental actions. That’s returning judges to where they once were, which was engaged in acts of judgment rather than trying to decide our values for us.

In the book the historical context you provide for us is fascinating. Can you talk about how judges and juries were deciding cases in the early stages of our country when the Framers were writing the Constitution?

We’ve come to associate the almost libertarian orientation towards rights with the Bill of Rights, but that’s really historically inaccurate. Rights are fundamentally political—not in a partisan sense, but political in the sense that they involve clashes of values. We’ve converted them into these kind of legalistic instruments that you give to judges to decide for us, but they’re really clashes of values. The way that democratic societies deal with clashes of values is through politics. That’s actually something the framers understood really well. When you look at the Bill of Rights, it is really about resolving clashes of values through politics. It’s about empowering certain kinds of institutions—juries in particular, but also local legislatures, local churches and religious institutions, which is where a lot of decision making got made. The book goes through this in some detail, but every part of the Bill of Rights is about empowering local institutions to be able to make decisions about rights, because that’s how you resolve those kinds of values conflicts that are inherent in thinking about rights. The book is not about saying that we need to return every jot and tittle to the founding. The founding had lots and lots of problems, most obviously it excluded large parts of the population, it was not an egalitarian project. Really the rest of Constitutional legal history is trying to integrate pluralism into a world of rights. How do you be a place that cares both the fundamental value of individual rights but also cares about having a pluralistic egalitarian society, given that what that means is that there are going to be lots and lots of conflicts of people’s rights? Democratic bodies are going to try to enforce rights through the laws, as in the Colorado anti-discrimination law, that extends that to gays and lesbians. They’re just inherently going to come into conflict.

Going back to what you asked initially about rightsism, these unelected judges have to pick whose rights count from a Constitutional perspective and whose rights don’t count. That’s pathological. It separates rights from the justice that rights are supposed to be about, and makes them into technical legal problems. I think it increases polarization as well. It means that you’ve got judges deciding who the Constitution cares about and who it doesn’t care about. The stakes of that are just astronomically high, when what judges should be doing is trying to make the stakes lower.

You write very compellingly about Oliver Wendell Holmes and his approach to law, which seems to have steered legal thinking for the last 120 years. Can you talk about Justice Holmes?

Holmes was a really interesting character in so many ways. The role that he plays in this story is as someone who, early in American history and relatively early in the history of rights in the United States, thinks about rights in a very careful, judicialized way. He’s an artifact of the fourteenth amendment, which is enacted right after the Civil War. In the several decades after the Civil War, there are lots of questions of how to build in this new set of judicially enforceable rights. How do you merge it with ordinary politics? Holmes was an early believer that you basically let the political process take over. He was celebrated by a lot of people on the left, because the kinds of rights people were claiming at the time were rights to contract, rights to break up labor unions, or rights to impose really oppressive terms and conditions of labor. Those were being upheld by lots of judges at the time. Holmes said that judges should not be enforcing a particular laissez faire vision of market relations. Whatever the political process produces, judges should let that happen.

He is highly influential, in part through some of the people he acted as a mentor to, including Felix Frankfurter most prominently. A lot of the people who worshipped Holmes—these are the progressives of the 1920s and 1930s—ended up winning. Through worship of Holmes, it became progressive orthodoxy that you let legislatures do their thing, unless you’re talking about very circumscribed, very particular set of rights. Back in the middle of the twentieth century that was racial exclusion, freedom of speech most prominently. You were dealing with the Jim Crow south. It started to become obvious by the middle of the twentieth century that you couldn’t just let legislators do whatever they wanted when it came to racial exclusion or McCarthyism. You ended up with this uneasy binary. On the one hand there were certain rights you had against the government trying to do the sorts of thing the government did in the Jim Crow South, and on the other hand you let the legislature do whatever it wants.

Once you get this explosion of rights claims in the 1960s, where it’s not just the Jim Crow South, but it’s also anti-birth control laws, certain criminal procedure issues, and certain free speech issues that are more complicated than McCarthyism, you get into this really uneasy space where you’ve got to figure out what to do with all the clashes of rights that are going on. You can’t single out everything as being superspecial, because that’s all of life, rights conflicts. When you get into government services, a right to welfare, you can’t have rights everywhere.

The book charts the confusion that American judges have had, really grounded in the fact that our initial encounters with rights involve totally pathological governments. Alabama in the 1950s, you’ve got to assert absolute rights against that kind of government, because that kind of government is pathological, it’s not to be trusted. But once you get into a situation where people are claiming rights, and for good reason, against a government that’s doing something that it should be allowed to do [it’s complicated]. Think about campaign finance reform. There are legitimate free speech issues at stake, but it’s also the case where we’re trying to level the political playing field. This is not the Jim Crow South. Or you think about abortion rights, where rights to autonomy are incredibly important and have been recognized by the court in other contexts. When you’re talking about the life of a fetus, which is something that our society clearly values, there’s context as well. This is not something you can just assimilate to the binary of racial segregation, where one side is clearly right and the other side is just trying to destroy their rights.

You make the history of American law very compelling to the lay-person, and bring to life a lot of landmark cases. You must have had an abundance of cases to choose from, how did you decide which cases to include and which to leave out?

It is a constant struggle when you’re a law professor to try to explain what can be quite complex concepts to people who are not necessarily legally trained. In terms of picking out cases, there are lots of cases discussed in the book and lots of characters. I tried to pick out issues. The first three chapters are historical chapters, and the subsequent chapters pick out an issue area for further development. In picking the issues, I wanted to pick out what I thought were the main problems with what I call “rightsism” in the book. Problem number one, the separation of rights from justice. We associate rights with some words in a documents as opposed to with a value in the world. The second problem is we don’t know how to deal with conflicts of rights. When there are clearly rights on both sides, we feel like we have to choose. The third is the polarization problem.

Those issues motivated the examples. When I thought about rights injustice, when I teach Constitutional law, one of the cases that outrages students the most is this San Antonio schools case, where it’s a clearly inferior school because it’s not getting funding from the state. The state has a formula that ties local property taxes to school funding, and the court just doesn’t know what to do with this. They’re in this binary, so they say, “We can’t say there’s a right to equal everything, that’s an end to capitalism, so there must be not such a right. Therefore the state can do whatever it wants to do.” I want to say, “No! You’re missing the forest for the trees. This is clearly a problem. Why can’t you say this is clearly a problem? We’re not saying that everything has to be equal, but can you give these kids some air conditioning?” You can act incrementally and that’s what courts do in the world without having to get into a metaphysical question of whether there’s a right to equal education. Abortion was an obvious choice for conflict of rights. I get into some of the German experience with this, which I think is really fascinating. On polarization, I’ve written about the Masterpiece Cake Shop case in my other work, so it was just obvious.

In terms of the characters, I just sort of stumbled on them as I did research. I’ve thought about Holmes a lot. The more I read about Holmes and dug into his own past, the more fascinating he became as a character. I continue to believe that a lot of this is really personality driven. He was a larger than life figure and really seduced lots of people into what I think ended up being an overly simplistic view of the law that maybe worked for the first half of the twentieth century, but doesn’t work for the modern world. We still haven’t come to grips with that.

The chapters about Holmes were so fun to read because you saw him in contrast with Justice Marshall Harlan, and their relationship is so fascinating.

I think this may speak to lawyers in a different way than it necessarily speaks to non-lawyers, because we’re taught that the judge views the case dispassionately and treats the case without really taking account of the stakes, and that’s doing law the right way. I think that’s exactly wrong. Harlan was condescended to by Holmes for being that kind of judge. I think Harlan understood—in a really intimate way that didn’t allow him to be dispassionate—that you just can’t ignore the values conflicts that are inherent in rights cases.

What role has the public library played in your life? What role do you see libraries playing in our approach to rights?

I’m a huge fan of public libraries. I feel like I grew up in the children’s reading room of the majestic main branch of the Brooklyn Public Library in Grand Army Plaza in Brooklyn. I’ve spent a lot of time in the reading rooms in the local public library here in Morningside Heights. Indeed, that’s how my kids and I continue [during the pandemic]. When you’re not traveling quite as much, you dive into books. Certainly the easiest way for us to do that is through public libraries. It’s been really valuable to me both as a reader and a researcher.

Getting back to the themes of the book and how do you get to the place where I want people to get, I want ordinary Americans who are not specialists to feel like they have a stake in how the Constitution is interpreted and developed. I think we’ve gone away from that in ways that are really destructive. I think public libraries are a form of socialization. They socialize reading and research and enable it to not just be for people who access to a university library as I do. I think in the project of democracy, they’re just incredibly important. I hope that my book shows up in lots of borrowers’ carts and gets wide readings by people who are not just lawyers, but non-legally trained citizens.