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

Columbia Law School professor Greene debuts with a spirited critique of the U.S. judiciary’s “all-or-nothing” approach to deciding conflicts over constitutional rights. According to Greene, the origins of this approach go back to Supreme Court justice Oliver Wendell Holmes Jr.’s dissenting opinion in the 1905 case New York v. Lochner, which suggested that certain rights were more important than others and should be given “special treatment” by judges. Greene delves into the 1960s civil rights cases that cemented the inviolability of freedom of speech, the right to privacy, and racial equality, among other “fundamental” rights, and laments how these rulings have been interpreted to mean that when one person is found to possess such a right, those with legitimate conflicting interests have no rights at all. Greene argues that “proportionality,” a judicial approach in which courts seek to balance competing claims and craft decisions recognizing diverse interests for the benefit of society, would be better suited to resolving today’s most complex and difficult issues, including gun control, affirmative action, and abortion rights. Greene delves deeply into the legal, cultural, and political matters behind rights conflicts, and laces his account with feisty legal opinions and colorful character sketches. This incisive account persuades. (Mar.)