Even where outright physical violence doesn’t erupt, American debates about rights rarely end in stable compromise. Worse, they are toxic. People tend to argue about affirmative action, free speech, firearms and religious freedom as if there were important interests on only one side. Framing a problem as one of rights often leads to a dangerous winner-takes-all dynamic.
The issue of abortion showcases the peculiar dysfunctionality of America’s rights discourse. In the early 1970s, both West German and American courts grappled with the problem. Over two decades, Germany’s Constitutional Court, its parliament and its several states hammered out legislative compromises, straining to recognize and account for serious moral concerns on all sides. America, in contrast, relegated abortion to the federal courts. This did not ease social conflict. We’re left today with bitter fights over Supreme Court nominations, a manifestly polarized federal bench and no agreement on abortion.
Complaints about America’s unhealthy conversation about rights go back to the 1990s. In his book “How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart,” law professor Jamal Greene addresses this history. But he goes beyond a bare rehearsal of pathologies: He prescribes a novel remedy. His refurbished assault on our dysfunctional rights culture is gripping, even thrilling. The proposed resolution, though, has too many gaps of logic to persuade.
At the time of the Constitution’s ratification, political elites disagreed about rights, Greene observes. But their differences were quite unlike contemporary fights. The original draft of the Constitution contained few rights. Only because of protests by anti-Federalists such as Patrick Henry was a Bill of Rights tacked on. These rights applied to the federal government only and not to the states. They were also less focused on empowering individuals than on shoring up institutions of local control, such as state militias, churches and juries. Rights preserved localism, rather than promoting individualism.
To explain the modern predicament, Greene fingers an unexpected villain. In 1905, the renowned Boston lawyer, Harvard professor and Supreme Court Justice Oliver Wendell Holmes wrote a dissenting opinion in Lochner v. New York. Lochner is famous among lawyers as the case in which the court identified a “right to contract” in the Constitution’s due process clause and held that New York’s labor regulations infringed on the rights of workers and business owners to enter whatever contracts they wanted to. Lochner, along with similar decisions, undermined progressive reforms in many states. Holmes scoffed at the idea of a right to contract. He would have upheld the state law without any analysis of the details of the law being challenged.
For Greene, Holmes’s Lochner opinion inaugurated an era when the federal courts analyzed questions of rights by focusing on the abstract legal question of whether a right exists, while ignoring more grounded, factual questions of how individuals are hurt or helped by the government’s actions. Courts use Holmes’s categorical and abstract approach, Greene says, instead of grappling with the particular human conflicts between the specific parties to a case.
Greene thinks this was a big mistake and an important turning point in the way the courts handle disputes over rights. He looks longingly to the more grounded and fact-sensitive approach of constitutional courts in Canada, Britain and India, an approach called “proportionality” review. This involves careful judicial interrogations of the practical stakes of a right, and the quality and integrity of the government’s reasons for infringing it. Such an approach requires judges to weigh the conflicting interests on all sides of a case — not ignore them.
Before training as a lawyer, Greene was a writer for Sports Illustrated, and it shows. He is a superb stylist. He has an eye for the withering zinger. Sometimes, he applies his irony with a shovel where a teaspoon would work. But when Greene more simply leverages his ample skill as a narrative storyteller, “How Rights Went Wrong” sings. New appointees to the federal bench should be required to read his devastating takedown of Justice Lewis Powell’s 1973 opinion upholding the funding for Texas’s education system. Ignoring a manifest equality problem, Powell culpably relegated Mexican American children to vermin-infested, understaffed and ill-equipped schools — while preserving well-funded, pristine schools for White children.
Yet it is hard to buy his core idea that our system of constitutional rights went wrong just because of Holmes or that it can be repaired by proportionality review. Holmes was not the advocate for abstract, acontextual analysis that Greene imagines. His most influential majority opinion for the court concerns the Fifth Amendment right against government “taking” private property without paying for it — that is, the right against state expropriation. This opinion is relentlessly contextual and resistant to high-flown abstraction. In that case, Holmes said a government regulation of property crosses a line and becomes an impermissible “taking” when it “goes too far.” This Holmes phrase invited a close inquiry into the facts about a specific regulation, not some flight of abstract fancy.
Nor are the legal rules defining contemporary constitutional rights as mechanical and context-insensitive as Greene suggests. One of the book’s unfortunate omissions is its neglect of the rights of suspects during investigations and criminal trials. The topic gets a half-page. Yet constitutional criminal procedure is chock full of balancing. Fourth Amendment cases involving unreasonable search and seizure, for example, often turn on the fact-intensive question of whether a police action was “reasonable,” all things considered. In crafting exceptions to the criminal-procedure rules of the Fourth and Fifth Amendments, the court tends to evaluate both the harms to individual rights and the benefits of government action. This variety of “proportionality” review, though, has not yielded any boon for suspects — quite the contrary, as the Black Lives Matter movement reminds us.
Nor is it clear that the polarization over rights is a result of how courts explain themselves, as Greene suggests. The Supreme Court’s decision in Roe v. Wade, for instance, happened in a context of a wider realignment of the party system and a transformation in the conservative movement. Neither of these developments had an exact analogue in Germany. Our modern conflicts over abortion may be a result of these broader political developments. The role of the Supreme Court may have been a more minor one than Greene suggests.
Indeed, if recent experience is any guide, Americans don’t need courts to spark violent and intractable conflict over rights. That’s the sad lesson of Rocco Sapienza’s death and other violence that has flowed from mask mandates. No court instigated these. At the same time, not all legal settlements of rights provoke harmful conflict: Think of the growing (albeit still woefully incomplete) acceptance of same-sex marriage.
When it comes to rights, Americans can polarize without a court getting involved. The fault is not in our judicial stars, as Greene would have it. We have, more depressingly, only ourselves to blame.
How Rights Went Wrong
Why Our Obsession With Rights Is Tearing America Apart
By Jamal Greene
Houghton Mifflin Harcourt.
299 pp. $28