The Future of Democracy Newsletter: March 2022

In March, our Democracy Group talked about the book How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, by Jamal Greene, a Columbia Constitutional Law Professor and co-chair of Facebook’s Oversight Board.

As Greene says: “Americans today typically associate rights with several key features: Rights are meant to protect minorities and dissenters from the tyranny of the majority, they are enforced collectively by judges, and they are presumptively absolute, yielding only in special circumstances, if at all. These features better reflect the legacy of the 1960s than the 1780s. Early Americans deeply believed in ‘rights,’ but within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather state and local political bodies: juries, churches, families, and legislatures.”

Resolving rights primarily through the courts, rather than through political institutions, has a big downside: “The difference between tying rights to judges and tying them to ‘the people’ acting through local institutions affects the substance of the rights themselves. The decision-making process of the legislature or even a jury typically involves negotiation and the open balancing of competing interests. By contrast, American constitutional judges are socialized to draw on a very different set of resources in adjudicating rights disputes: They zero in on the text of the Constitution, existing judicial precedent, and the original intentions or understandings of the founding generation.… Self-conscious about their weak democratic credentials, judges often treat matters of great moral urgency — abortion rights, affirmative action, presidential power — in just the way they treat disputes over a property line or an addendum to a business contract.”

The courts recognize a two-tiered system of rights that deserve special protection and almost always triumph — e.g., freedom of speech and freedom from racial discrimination, and rights or interests that don’t deserve special protection — e.g., the right of a university to enforce rules of civility. He claims that this way at looking at rights is detrimental to society.

Greene then goes on to illustrate different areas in which an absolutist, judicially enforced approach to rights has led to a more polarized, less just society. He contrasts the US’s approach to abortion to that of Germany’s. In the former, the abortion issue was addressed by a judicial recognition of women’s reproductive freedom as a right but not the right to fetal life. This stance contributed to making abortion one of the country’s most contentious issues. By contrast, the German Constitutional Court has recognized both a right to abortion and a right to fetal life, and directed the German legislature (Bundestag) to come up with a legislative solution balancing those rights within the framework established by the court. Partly as a result of that process, the abortion issue is not nearly as polarizing in Germany as in the US.

On the conflict between gay rights and religious freedom, Greene discusses the need for factual specificity and nuance, as has been demonstrated by some European courts, allowing a Christian baker to refuse a request to bake a cake for a gay rights celebration, but not allowing a government official to refuse to fulfill the duty to facilitate lawful same-sex unions.

In the area of campus speech, Greene thinks that a judge was wrong in prohibiting a university from preventing a neo-Nazi propagandist, Richard Spencer, from using its auditorium, citing the latter’s right to freedom of speech. “Had [the university] been the police, arresting Spencer in anticipation of his racist speech, the court would have been right to prevent that from happening. But more nuance is called for when the actor is an educational institution, and one that didn’t arrest Spencer but merely denied him a live audience in a four-hundred-seat assembly hall within its community.”

On the issue of Affirmative Action, Greene is critical of equating the prohibition of racial discrimination against minorities with the use of race to remedy past racial wrongs. “The degree to which courts are skeptical of the government’s recognition of race should be attentive to the nature of the problem it is trying to address, not simply to whether the government uses race to address it. Race-based structural inequality calls for racially sensitive structural remedies. And so, when public institutions put race-based affirmative action programs or other forms of in-kind reparations in place, courts should place significant weight on the fact that the state is seeking to advance the equality rights of people suffering from stubborn forms of disadvantage.”

The essential view of the book is that dispute resolution in other times and places has taken into account the need for people to listen to each other and to compromise on questions that divide them. The book is a plea to look beyond absolute individual rights and allow our democratic institutions to arrive at reasonable solutions to the problems that face us.
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The group also spoke with great concern about the situation in Ukraine, sharing information and speculating on Putin’s motives and possible ill health.

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