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Publisher's Summary

An eminent constitutional scholar reveals how the explosion of 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 marry and to divorce; to have children and to terminate a pregnancy. The right to life and the right to own a gun.

Rights are a sacred part of American identity. Yet they were an afterthought for the Framers, and early American courts rarely enforced them. Only as a result of the racial strife that exploded during the Civil War - and a series of resulting missteps by the Supreme Court - did rights gain such outsized power. The result is a system of legal absolutism that distorts our law and debases our politics. Over and again, courts have treated rights conflicts as zero-sum games in which awarding rights to one side means denying rights to others. As eminent legal scholar Jamal Greene shows in How Rights Went Wrong, we need to recouple rights with justice - before they tear society apart.

©2021 Jamal Greene (P)2021 HarperCollins Publishers

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Trenchant and valuable

In "How Rights Went Wrong," Jamal Greene offers a critique of American "rights obsession" and suggests that, rather than a few "strong" rights that trump all others, our courts, and our society as a whole, should recognize many more competing rights that must be balanced to serve the requirements of justice. I think he makes a compelling case.

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A compelling read but an unconvincing thesis.

Greene writes a compelling narrative, and his thesis is provocative and important. The further one delves into the book, though, the clearer it is that that thesis has collapsed under its own weight. On the one hand, Greene seems to treat “constitutional” as synonymous with “dignifying” or “worthy.” That something be “constitutional” is thus a moral imperative. On the other hand, by treating “constitutional” interpretation as nothing more than a matter of weighing societal values, it is difficult to see the benefit of a “constitution” at all. Perhaps more pressingly, the insistence against drawing bright constitutional lines results in an argument that rests on vague prescriptions (“Courts ought to wrestle with facts!”) and question-begging, extra-textual moralisms (“It is absurd that the Constitution protects X but not Y.”) that are of little help to a court wrestling with a difficult question. We are left with “rights” that are simultaneously everything and nothing, and little real guidance in defining where those rights end and begin.