How Rights Went RightHistorians in the News
tags: Supreme Court, civil liberties, rights, constitutional history, religious liberty
David Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. (April 2022)
by Jamal Greene, with a foreword by Jill Lepore
If there’s one thing Americans can agree about, it’s that we disagree. We are divided into warring camps on issues from abortion to guns to taxes—even on wearing masks and getting vaccinated. There have been so many diagnoses of why we are riven that it can be daunting to come up with a new explanation. Jamal Greene, a constitutional law professor at Columbia Law School, proposes one: in How Rights Went Wrong, he argues that our conception of constitutional rights as absolutes drives us into all-or-nothing conflicts in which one side necessarily wins and the other loses. In a pluralist society in which rights often conflict, he contends, this conception fails to afford room for compromise and is to blame for “tearing America apart,” as the book’s subtitle puts it.
Greene’s prescription is that we should learn from other nations. Many of the world’s constitutions and constitutional courts do not treat rights as absolute. Instead, they recognize that rights may be restricted in the name of competing interests. In Greene’s view, were American courts to adopt such an approach, often described as “proportionality review,” they could acknowledge competing values and either strike an appropriate balance between them or, better yet, call on political institutions to strike one. Greene prefers political to judicial resolutions of rights claims, and compromise to ringing endorsements or resounding rejections. If the courts, our prime expositors of constitutional rights, were more evenhanded and moderate in their judgments, he posits, the country would be less split as well.
Greene has crafted a cogent narrative of how constitutional rights have evolved over the course of US history, as well as a strong defense of proportionality. He also admits that social media, the unconscionable gap between rich and poor, the influence of money in political campaigns, the dominance of the two-party system, gerrymandering, and racial, demographic, and geographic divisions all contribute to our current polarization. But I am skeptical of his central arguments that constitutional interpretation is both misguided and a major factor in polarization—especially when viewed alongside all the others.
As an initial matter, Greene overstates the extent to which rights in the American conception are absolute. The Supreme Court’s decisions often reflect compromise and routinely permit constitutional rights to be overridden by competing interests.
And the alternative method Greene champions—close assessment of the facts and ad hoc balancing of competing claims—is short on principled guidance and would give judges a relatively free hand to impose whatever results they choose. Moreover, his preference for political over judicial resolution of rights disputes gives insufficient credit to the central reason for making rights constitutional and assigning their protection to judges in the first place: the political process cannot be trusted to safeguard them. In a democracy, the majority prevails, so leaving disputes over minority interests to politics could mean dooming many such interests altogether.
Greene is right that American conceptions of rights have evolved dramatically over time. The framers applied the Bill of Rights to the federal government only, not the states; indeed, they saw state and local governments (and juries) as the principal protectors of rights. As a result, the Supreme Court decided very few constitutional rights cases in its first one hundred years. (Yet the country was deeply divided during much of that time, suggesting that contemporary conceptions of rights are not a necessary component of partisan fracture.)