Publius Symposium with Jamal Greene: How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart
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An eminent constitutional scholar reveals how our approach to 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 life, and the right to own a gun.
Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting—reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.
As renowned legal scholar Jamal Greene argues, we need a different approach—and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.
Join us in conversation about Jamal Greene’s book, How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart, with commentary by Nadine Strossen, Jud Campbell, and Geoffrey Sigalet.
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Jamal Greene Jamal Greene is a constitutional law expert whose scholarship focuses on the structure of legal and constitutional argument. He teaches constitutional law, comparative constitutional law, the law of the political process, First Amendment, and federal courts. Greene is the author of the forthcoming book, “How Rights Went Wrong: Why Our Obsession with Rights is Tearing America Apart” (HMH March 2021). He is also the author of numerous law review articles and has written in depth about the Supreme Court, about constitutional rights adjudication, and about the constitutional theory of originalism, including “Rights as Trumps?” (Harvard Law Review foreword for the 2017–2018 Supreme Court term), “Rule Originalism” (Columbia Law Review, 2016), and “The Anticanon” (Harvard Law Review, 2011), an examination of Supreme Court cases now considered examples of weak constitutional analysis, such as Dred Scott v. Sandford and Plessy v. Ferguson. Greene is a sought-after media commentator on the Supreme Court and on constitutional law. His articles have appeared in The New York Times, Slate, New York Daily News, and The Los Angeles Times. In 2019, he served as an aide to Sen. Kamala Harris (D-Ca.) during the Senate confirmation hearings of Justice Brett Kavanaugh. Before training as a lawyer, he was a baseball reporter for Sports Illustrated. Prior to joining Columbia Law in 2008, Greene was the Alexander Fellow at New York University School of Law. He served as a law clerk to Judge Guido Calabresi on the 2nd U.S. Circuit Court of Appeals and for Justice John Paul Stevens on the U.S. Supreme Court. He is a member of the American Law Institute and sits on the Board of Academic Advisors of the American Constitution Society. To view Jamal Greene’s full bio, click here. |
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Nadine Strossen Nadine Strossen has written, taught, and advocated extensively in the areas of constitutional law and civil liberties, including through frequent media interviews. From 1991 to 2008, she served as President of the American Civil Liberties Union, the first woman to head the nation’s largest and oldest civil liberties organization. Professor Strossen is currently a member of the ACLU’s National Advisory Council, as well as the Advisory Boards of Electronic Privacy Information Center (EPIC), Foundation for Individual Rights in Education (FIRE), Heterodox Academy, and the National Coalition Against Censorship. When she stepped down as ACLU President in 2008, three Supreme Court Justices participated in her farewell and tribute luncheon: Ruth Bader Ginsburg, Antonin Scalia, and David Souter. Her 2018 book, HATE: Why We Should Resist It With Free Speech, Not Censorship, has been widely praised by ideologically diverse experts. Her earlier book, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, was named by The New York Times as a “Notable Book” of 1995. The National Law Journal has named Strossen one of America’s “100 Most Influential Lawyers,” and several other publications have named her one of the country’s most influential women. Her many honorary degrees and awards include the American Bar Association’s prestigious Margaret Brent Women Lawyers of Achievement Award. At New York Law School’s 2019 commencement, Strossen attained the unique distinction of winning both the award for outstanding teaching and the award for the best book. To view Nadine Strossen’s bio, click here. |
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Jud Campbell Jud Campbell joined the Richmond Law faculty in 2016 after serving as the Executive Director of the Stanford Constitutional Law Center. His academic focus is First Amendment law and constitutional history. His publications include articles in the Yale Law Journal, Stanford Law Review, Texas Law Review, Constitutional Commentary, and Law and History Review. After completing his J.D. at Stanford Law School, he clerked for Judge Diane S. Sykes on the Court of Appeals for the Seventh Circuit, and for Judge José A. Cabranes on the Court of Appeals for the Second Circuit. He holds a bachelor’s degree from the University of North Carolina at Chapel Hill and two master’s degrees from the London School of Economics, where he studied as a Marshall Scholar. To view Jud Campbell’s full bio, click here. |
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Geoffrey Sigalet Geoffrey Sigalet has been awarded a two-year postdoctoral fellowship in RGCS and Political Science. He holds an MA in Political Science from McGill and a Ph.D. in Politics from Princeton, and has held fellowships at Stanford Law School and Queen’s University Faculty of Law. He specializes in public law and political theory, with an emphasis on constitutionalism, constitutional dialogue, and republicanism. He is the coeditor of Constitutional Dialogue: Rights, Democracy, Institutions (co-edited with Grégoire Webber and Rosalind Dixon), recently published by Cambridge University Press. In the winter semester of 2020 he will teach POLI 432 Selected Topics: Comparative Politics, with the topic “Comparative Bills of Rights.” To view Geoffrey Sigalet’s bio, click here.
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