56 The New York ReviewWhen Rights Went Right
David ColeHow Rights Went Wrong:
Why Our Obsession with Rights
Is Tearing America Apart
by Jamal Greene, with a
foreword by Jill Lepore.
Houghton Mifflin Harcourt,
299 pp., $28.00; $17.99 (paper)If there’s one thing Americans can
agree about, it’s that we disagree. We
are divided into warring camps on is-
sues 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 constitu-
tional law professor at Columbia Law
School, proposes one: in How Rights
Went Wrong, he argues that our con-
ception of constitutional rights as ab-
solutes 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 consti-
tutional 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 “propor-
tionality review,” they could acknowl-
edge competing values and either
strike an appropriate balance between
them or, better yet, call on political in-stitutions to strike one. Greene prefers
political to judicial resolutions of rights
claims, and compromise to ringing en-
dorsements or resounding rejections.
If the courts, our prime expositors of
constitutional rights, were more even-
handed and moderate in their judg-
ments, he posits, the country would be
less split as well.
Greene has crafted a cogent narra-
tive of how constitutional rights have
evolved over the course of US history,
as well as a strong defense of propor-
tionality. He also admits that social
media, the unconscionable gap be-
tween rich and poor, the influence of
money in political campaigns, the dom-
inance of the two-party system, gerry-
mandering, and racial, demographic,
and geographic divisions all contrib-
ute 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 over-
states the extent to which rights in the
American conception are absolute.
The Supreme Court’s decisions often
reflect compromise and routinely per-
mit constitutional rights to be overrid-
den by competing interests.
And the alternative method Greene
champions—close assessment of the
facts and ad hoc balancing of compet-
ing claims—is short on principled guid-
ance and would give judges a relatively
free hand to impose whatever results
they choose. Moreover, his preferencefor political over judicial resolution of
rights disputes gives insufficient credit
to the central reason for making rights
constitutional and assigning their pro-
tection 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 con-
ceptions of rights have evolved dramat-
ically over time. The framers applied
the Bill of Rights to the federal govern-
ment 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 con-
temporary conceptions of rights are
not a necessary component of partisan
fracture.)
Slavery and its legacy illustrated the
flaws in the framers’ assumption that
states would reliably protect rights,
and the Thirteenth, Fourteenth, and
Fifteenth Amendments, adopted after
the Civil War, imposed broad consti-
tutional rights restrictions on states for
the first time. They required states to
outlaw slavery and to provide “equal
protection of the law,” and forbade them
from denying the right to vote on the
basis of race and from taking life, lib-
erty, or property “without due process.”
In subsequent decades, the Supreme
Court increasingly interpreted the
Fourteenth Amendment’s due processclause to make virtually all the specific
rights guaranteed in the original Bill of
Rights enforceable against the states.
Collectively, these changes shifted
rights enforcement from state and local
governments to the federal courts.
But the Supreme Court’s initial for-
ays into actively protecting the con-
stitutional rights of individuals were
disastrous. Beginning in the 1890s, it
repeatedly struck down laws designed
to protect workers and consumers from
exploitation by big business, on the
grounds that such laws infringed on the
“liberty of contract.” When the federal
government responded to the Great
Depression by enacting comprehen-
sive New Deal legislation, the Court
struck down those laws as well. Such
decisions led President Franklin Roo-
sevelt to propose increasing the size
of the Court, a transparent effort to
appoint justices friendly to New Deal
legislation. He failed, but the Court ul-
timately shifted course and gave both
Congress and the states broad author-
ity to regulate businesses, illustrating
that constitutional rights in the Amer-
ican system are anything but absolute.
In the post–New Deal era, the Su-
preme Court and constitutional schol-
ars sought to identify interests for
which courts particularly needed to
intervene: defending the political pro-
cess by vigorously safeguarding the
rights to vote, speak, and associate;
and protecting those who cannot pro-
tect themselves through the demo-
cratic process, such as the criminally
accused, dissidents, and members of
minority groups. According to this ju-
dicial philosophy, the Supreme Court
should generally allow disputes about
economic arrangements to be resolved
democratically but should exercise
more skeptical review when the major-
ity seeks to entrench itself, cut off polit-
ical avenues for change, or trample on
the rights of minority groups.
This is, in Greene’s assessment,
where “rights went wrong,” by not per-
mitting compromise. In my view, this
is where rights went right. By focusing
on fundamental interests that are not
well protected through majoritarian
processes, the courts serve an integral
and valuable function in our constitu-
tional democracy. Greene’s alternative
approach risks denying protection to
those who cannot prevail through the
political process.The premise of Greene’s critique is
that constitutional rights in the Amer-
ican conception are too absolute. But
are they? Take his Exhibit A: the right
to abortion. He argues that abortion
is the classic instance of a “conflict of
rights,” but that the Supreme Court
in Roe v. Wade (1973) concluded that
“there was no middle ground, no room
for compromise.” Because it protected
a woman’s right to terminate her preg-
nancy and refused to recognize the
fetus as a “person” as that term is used
in the Constitution, Greene argues, the
Court brought us fifty years of pitched
battles. Had it only compromised, he
suggests, or left the matter to the po-
litical process, abortion politics in the
United States would not be as divided
as they now are.Lunch counter employees at a Peoples Drug Store preparing to close early during a sit-in
demonstration against segregation, Arlington, Virginia, 1960GrangerCole 56 58 .indd 56 3 / 24 / 22 4 : 53 PM