How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart, by Jamal Greene

There is, on the left, a rising sense that rights have gone wrong and that they need to be curbed in some fashion. To a large extent, this comes because in the American tradition at least, rights are inherent to people and serve as a way of preventing government from doing certain things that people like the author want to do. There is also the sense that equal protection, in preventing some people from being more equal than others in terms of rights, make it impossible to engage in the types of social engineering without the consent of the governed that the left wants as well. Similarly, the authors of these sorts of books often opine that the wrong people are getting and claiming rights–people like myself, for instance, which I find deeply offensive. In addition to this, people like the author are not looking for rights that restrain obvious racism so much as the liberty to force people to behave as they want to in order to provide positive rights for people like blacks and the disabled because of supposed and imagined systemic bias against such people based on the sort of statistical reason that (rightly) has been consistently rejected by American courts as a reasonable argument. It is hard to be overly sympathetic to people who desire to browbeat or coerce courts to change their judicial philosophy to benefit a bunch of frustrated progressives whose behavior has long sought to tear America apart for their own selfish political gain.

So given that the author has a lot of whining and complaining about the current philosophy of judges regarding rights, what would the author recommend? What the author has in mind instead of red lines and absolute conceptions of rights is the sort of balancing of rights that allows governments and especially regulators–of the kind who as Progressives regularly tend to overshoot absolute rights to the detriment of those not politically in favor of them–to engage in behavior that has to be taken as at least partly legitimate because it is done by agents of the state, even if doing so harms the well-being of those whose claims of rights would, in the American sense, stop such government behavior in its tracks. The author uses as his centerpiece argument a specific interpretation of the abortion crisis as it was judicially solved in both Germany and the United States, urging the United States to adopt Germany’s model of justice (no, this is not a joke) in place of its own. While there is a great deal I could say against the author’s conception of rights, the decisive argument for me at least is that people like the author cannot be trusted to act with the best interests of Americans in heart, and the sort of government bureaucrats whose “rights” the author wants to include in the balance include those who promogulated and enforced biased restrictions against the assembly of people of faith during the overhyped Covid crisis, tax officials who selectively hassled conservative not-for-profit groups in abusing discretionary power, and “justice” officials who have regularly targeted right-of-center people on trumped up political charges. These people deserve jail, or death, or personal bankruptcy, not to have their decisions given the undeserved dignity of any kind of legitimacy in a legal dispute.

In terms of its contents, this book is about 250 pages or so, divided into three parts and nine chapters. After a foreword by Jill Lepore and an introduction, the first part of the book looks at how rights became trumps against the behavior of others (I), with chapters on the Bill of Rights (which the author, of course, does not get right) (1), the intersection of rights and race (2), and what the author labels as rightsism in an attempt to delegitimize it (3). The second part of the book finds the author opining that without justice (in his own biased eyes) there will be no peace (II), with chapters urging utopian justice (4), discussing what happens when rights collide (5), and looking at cases where rights divide (6). The last part finds the author trying to rehabilitate rights so that they are acceptable in his own eyes (III), with chapters on disability (7), affirmative action (8), and campus speech (9), where the author finds himself immensely hostile to the speech rights of right-of-center students and public figures, predictably enough. The book ends with a conclusion, acknowledgements, notes, and an index.