How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart

Constitutional scholar Greene (Columbia Law Sch.) criticizes the U.S. judiciary’s absolutist approach to the exercise of individuals’ competing rights. (The conflicts that result when, for instance, one person’s right to life clashes with another person’s right to bear arms.) He contends that the courts have flattened the texture of Constitutional rights in morally arbitrary ways that widen the gap between law and justice and deepen the nation’s polarizing instability. The courts have cast competing rights as questions of who has the right and who doesn’t—an either/or binary approach that ignores the multilayered nuances of rights necessary to maintaining civil communities in the 21st century, Greene insists. He focuses particularly on what he calls the U.S. Supreme Court’s long history of protecting the “wrong” rights—as in its jurisprudence on race, which often pitted the right to speech (including racist speech) against the right to live free from discrimination. Greene demonstrates how a misguided judiciary has discriminated between or simply minimized constitutional rights, rather than mediating so as to enforce rights on all sides. He urges replacing the current all-or-nothing, winner-take-all mode of settling competing rights, and instead adopting an approach called “proportionality,” which he admits is unusual in U.S. legal practice but is increasingly the norm around the world and would also resonate with the Constitution’s framers, in his view. Greene’s argument to rehabilitate Constitutional rights embraces alternative dispute resolution; he pushes for more mediation, in order to channel conflicts away from courts that he believes are ill suited to the clear-eyed negotiation essential to dealing with structural inequalities and to restoring Americans’ relationship to the law and to each other.