HOW RIGHTS WENT WRONG

A Columbia Law School professor reframes the framers to show American rights in a new light.

In this provocative, dense assessment, Greene, a former clerk for John Paul Stevens, argues that we have handed over interpretation of the Constitution to the courts, which have veered from the vision of the Founders. Instead of a system in which societal rights are decided by communities and elected representatives, our significant legal disputes are often settled by judges in zero-sum proceedings that rest on interpretations of documents written long before any of the relevant parties were born. The author uses the term “rightsism” to describe a situation in which judges have too much power. Greene advances the pertinent argument that, rather than determine winners and losers, courts should look for middle ways: “Too often,” he writes, “U.S. courts…see their job in constitutional cases as declaring who’s right. The answer, so often, is neither side—or both.” The Constitution seldom contains clear answers to the complex questions of our age. Rather than look back, judges should, as do their counterparts in other countries, scrutinize individual cases with an eye to bringing sides together. “Judges, more than most,” writes Greene, “have the power to make it better, and instead they are making it worse.” Though the author presents a valid argument, the presentation is lacking. He describes a dizzying number of cases and characters, which makes the text overwhelming for lay readers. The first third of the book, which includes an introduction and historical overview, reads like a lecture—e.g., “Rather than concede a significant role for interest balancing or moral deliberation as essential to rights adjudication, [judges] fall back on their narrow professional training.” Greene’s arguments, which may be useful to legal scholars and students, deserve ample airing, but his style doesn’t aid wide comprehension. Jill Lepore provides the foreword.

Intended for general readers but unlikely to register with many non–legal eagles.