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

By Jamal Greene and Jill Lepore

AMERICAN ASSOCIATION OF PUBLISHERS PROSE AWARD FINALIST | “Essential and fresh and vital . . . It is the argument of this important book that until Americans can reimagine rights, there is no path forward, and there is, especially, no way to get race right. No peace, no justice.”—from the foreword by Jill Lepore, New York Times best-selling author of These Truths: A History of the United States

An eminent constitutional scholar reveals how our approach to rights is dividing America, and shows how we can build a better system of justice.

You have the right to remain silent—and the right to free speech. The right to worship, and to doubt. The right to be free from discrimination, and to hate. The right to life, and the right to own a gun.

Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting—reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.

As renowned legal scholar Jamal Greene argues, we need a different approach—and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.

• Language: English
• Publisher: HarperCollins
• Release date: Mar 16, 2021
• ISBN: 9781328518149

Jamal Greene

JAMAL GREENE is Dwight Professor of Law at Columbia Law School. A graduate of Harvard College and Yale Law School and a former law clerk to Hon. John Paul Stevens, he was a reporter for Sports Illustrated from 1999–2002. He lives in New York City.

Reviews for How Rights Went Wrong

[steve02476 · Rating: 4 out of 5 stars]

A challenging book - a bit challenging to read because the sentence construction is sometimes a bit complex. But mostly because it challenges a lot of the “sacred cows” of American attitudes about constitutional rights. I don’t have the legal background to fully understand everything in the book but it definitely makes me think about constitutional rights a different way. I was irritated when I started the book that he didn’t define what he means by rights, I know there are many definitions and many kinds of rights. But by the time I finished the book I think I know why he didn’t bother, he’s trying to show that the whole concept of rights can be deemphasized in some ways.

[bookanonjeff · Rating: 3 out of 5 stars]

Interesting Yet Ultimately Self-Serving Take On Rights. This book presents as an interesting and novel (at least in an American sense) take on rights - namely, that they are not absolute and should be mediated by government actions. Greene claims that this would ultimately result in less polarization, though he seems to ignore large swaths of what has led to the polarization currently facing America when making such claims. Still, even though blatantly written from a leftist perspective, the book mostly presents its theory in a reasonably well-reasoned approach and thus adds enough to the overall conversation that it should be considered. Ultimately, though, it becomes clear that Greene's entire premise of mediated rights is less a matter of principle or proposing a novel theory or (as he claims) more aligning American jurisprudence with that of much of the rest of the world and much more about defending Big Academia's right to discriminate against the disabled and against certain races, and to control speech in a totalitarian manner. It is this realization - very blatant in the closing chapters, particularly when discussing Affirmative Action and campus speech codes - that ultimately considerably detracts from the overall merit of the proposal, and thus dramatically weakens the entire argument. Recommended.