HOW RIGHTS WENT WRONG: WHY OUR OBSESSION WITH RIGHTS IS TEARING AMERICA APART

BY JAMAL GREENE WITH FOREWORD BY JILL LEPORE

Reviewed by Marc Alexander*

In Columbia Law School Professor Jamal Greene’s book "How Rights Went Wrong," Greene argues the rights enshrined by constitutional interpretation are used to crush adversaries unable to claim a constitutional right as their own. The baleful consequence is constant competition for scarce rights in our courts — a competition too often resulting in hyperbolic rhetoric and rancor. Thus, while we hold rights sacred, rights are a source of division. Hence the dramatic subtitle of the book: "Why Our Obsession with Rights Is Tearing America Apart." Greene asks us to rethink rights, arguing we would do better to have more rights, though those rights would be weaker and subject to reasonable limitations. One suspects Greene dreams at night of Jefferson’s aspirational promise of "Life, Liberty and the Pursuit of Happiness" in the Declaration of Independence, only to wake up in the cold morning sunlight to find a cramped interpretation of Madison’s Constitution beside him.

The clever title of Greene’s book also displays Greene’s enjoyable, witty, and colorful writing, unusual among legal scholars. A former sportswriter for The Harvard Crimson and Sports Illustrated, Greene writes with flair. Of course, sometimes the sheer facility of a writer has the paradoxical effect of putting readers on guard against swallowing arguments hook, line, and sinker.