“Greene uses abortion jurisprudence as a real-world example of how American law’s approach to rights has gone wrong—and has helped split us up into warring tribes competing for a zero-sum rights pie.”
Federalist No. 10: innumerable factions clashing, competing, cooperating, and coming together in the public square, the market place, and the halls of political power.hen viewed from space by impartial observers—say, aliens—American society would stand out for what it actually is: extremely pluralistic. Diverse people doing different things, advancing their different interests, and upholding their different principles. There would be conflict, yes; however, our society, as seen by the aliens, would resemble something akin to what James Madison theorized in
But we are not aliens, nor are we detached, impartial observers of our world. We are participants in our society and in our polity, and we tell ourselves stories about that society and its polity in order to make sense of it all. Unfortunately, the stories we tell ourselves about ourselves are increasingly simplistic. Binaries and blocs crowd out texture and nuance in the mental pictures of the world we construct in our heads. Whether it is race, class, or any other salient cultural, economic, or political marker, we speak of As and Bs when the whole alphabet—and then some—would be more suitable.
Terms like “people of color” (POC) are prime examples of our narratives’ turn towards binaries. We seem intent on cramming an increasingly multiracial and racially diverse America into our old, two-pronged white and black/non-white categories. As Boston College’s Peter Skerry recently wrote in National Affairs, the POC turn of phrase is often “unhelpful and misleading” when it comes to actually understanding American racial dynamics and advancing the cause of racial justice.
The binaries of our political discourse do not map well onto the messiness of our real world, but they have grown salient in our minds nevertheless. In terms of their short-term, practical political effects, the images of the world we construct in our heads are just as important, if not more so, than the world as it really is. Our narratives take on lives of their own.
The public square, the street, and Twitter are not the only forums where we shape our narratives of binaries—where we tell simplistic stories about ourselves to ourselves. We also do that through our history, which is why I recently argued in American Purpose that the ongoing clash between the forces of The 1619 Project and the 1776-centered counterarguments it provoked warrants our attention and is in need of resolution. We need a national story that allows us to reject A or B framings of America—one that empowers us to come to grips with our complex, ugly, and beautiful past.
In addition to day-to-day public discourse and our historical understanding, there is one final way in which we tell ourselves about ourselves, in which we make sense of our sociopolitical reality: the law.
The law is part and parcel of the narratives we tell ourselves about the world in which we live. What is just, what is deserved, who is a minority, who is in need of special protection, what is socially acceptable and what is not—these are questions that we answer through law-making and legal interpretation, and, in doing so, we shape our understanding of society, our polity, and our places within it. When viewed in this light, the process of lawmaking and legal interpretation is also a form of self-referential storytelling, and the lawmakers and judges are the narrators. They are constrained by we the people, yes, but they have an immensely important job. By laying down and interpreting the rules that shape and structure our actions, they shape our thoughts. The law paints a particular portrait of our society. It is a world unto itself—a world that filters through Congress, courts, and into our minds.
I am concerned here with the extent to which the narrative about our world as told by the law differs from our world as it truly is.
In our age of social complexity and narrative simplism, we would be wise to take a step back and reflect on whether our laws and modes of legal interpretation are serving the cause of complexity or fostering the false narrative of binaries. That is, are our laws and legal interpretation coping with our social complexity and diversity and painting an accurate portrait of modern American society, or are they presenting us with false A or B choices and fueling an unhelpful, destructive, simplistic narrative of America?
In his new book, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart, Columbia Law School’s Jamal Greene effectively argues that the answer, unfortunately, is the latter, and he charts a path to nudge American law closer to the former.
An implicit understanding of how the law—and legally recognized rights, in particular—shapes the narratives we tell ourselves about ourselves courses throughout Greene’s incisive book. He notes at the outset, for example, that “rights are the commandments of our civic religion. This book is about how to get them right, and why it matters.” While one’s ancestry or blood often defines one’s membership in a nation, America has always been a bit unique. Our rights as Americans define us as Americans. Therefore, when we inevitably disagree about our rights in our pluralistic society, we risk having the loser (whoever’s rights are not vindicated at the ballot box or in a court of law) feel as if they have been pushed out of the political community, and conflict can ensue. Since rights claims are high stakes and zero-sum, then, we must tread carefully.
According to Greene, American law and American courts have not tread carefully. Instead of recognizing many weak rights and then mediating between their claims on a facts-specific and case-by-case basis, our courts have opted to recognize a few rights and protect them with vigor. If a claim falls within the realm of rights explicitly enshrined in the Constitution itself and those that reach the vaguely defined level of being “fundamental,” the claimant wins. If not, they are out of luck. A or B. All or Nothing.
To flesh out this point, Greene looks back to the infamous 1905 case of Lochner v. New York and its two dissents. The New York state legislature had enacted a maximum hours law for industrial bakeries, where working conditions at the time were quite rough. The law was challenged, and struck down 5-4 by the Court, as a violation of the plaintiff’s (a bakery owner’s) freedom to contract with his employees. Although there are some holdouts (see George Will in The Conservative Sensibility, for example), the holding is almost universally reviled in American constitutional law circles and courses today. As Greene points out, though, it is reviled for different reasons.
The popular understanding of why Lochner was wrongly decided hinges on the short, pithy opinion of Justice Oliver Wendell Holmes, Jr., which was then popularized by his acolyte Felix Frankfurter. Holmes dismissed the notion of a constitutionally protected right to contract, and that was that. Rights claims were either there or not. They were either explicitly protected by the Constitution, “fundamental” (grounded in history, tradition, etc.), or non-existent. As Greene writes, “For Holmes, the Constitution protected very few rights—and certainly not the right to contract—but those it protected, such as freedom of speech, it protected strongly.”
Justice John Marshall Harlan’s dissent, though, offered a different approach even if it would have also upheld the constitutionality of the New York law. Greene writes: “for Harlan, the bakers’ case wasn’t really about whether there is a special right to contract in the Constitution. It was about how far the right goes.” Harlan was willing to recognize both a constitutional right to contract and the state’s right to exercise its police powers by regulating public health, safety, and morals. The rights did not have to be minimized (as Holmes did with respect to the right to contract) but, rather, mediated. The existence of neither right had to be denied. In carrying out the work of rights mediation, the facts of the case were paramount—why was the legislature restricting the individual right in question, and was it doing so in as non-restrictive a manner as possible? “For Harlan, the judge’s job wasn’t to decide whether a right existed in the abstract. The judge’s job was to assess the legislature’s balance of individual rights against the common good. Both were worth caring about. Both were of constitutional dimension. Neither was beneath the Constitution.”
Unfortunately, “Americans chose Holmes’s model, and the rest of the world chose Harlan’s.” We have chosen to hone in on a few rights and protect them with vigor, while letting others wither. The cause of justice and our ability to cope with the complexities of modern society both suffer as a result.
Greene uses abortion jurisprudence as a real-world example of how American law’s approach to rights has gone wrong—and has helped split us up into warring tribes competing for a zero-sum rights pie. Unlike other advanced constitutional democracies, such as Germany, our abortion jurisprudence has polarized debate on this immensely fraught topic.
Greene argues that in Roe v. Wade, the Supreme Court needlessly minimized the right to life of the fetus. In doing so—in denying the existence of a legitimate rights claim on the part of the pre-viable fetus and a state interest in protecting it—the Court “eroded the political center, making compromise more difficult.” However, the Supreme Court did not have to go about it this way. The Federal Constitutional Court in Germany offers an alternative: “The German experience reveals another option, one in which the constitutional court did not simply choose between rights but instead forced the state to take both the rights of the fetus and the rights of women seriously.” The German court recognized the rights of the fetus and women’s rights under the Basic Law (the German Constitution) and went about mediating them.
This shaped the terms of their abortion debate in constructive, less polarizing ways. As Greene writes:
“By recognizing fetal life as constitutionally protected, it made impossible a Roe-style approach that implied an absolute right to a first-trimester abortion. By characterizing abortion rights as nonetheless encompassed within the Basic Law…the court forced those seeking to reduce the number of abortions to do so by making women’s reproductive choices more meaningful.”
In Germany, there is still deep disagreement about the nature and morality of the practice of abortion. However, there is less framing of it as mere “choice” or as pure “murder.” Indeed, legal abortion’s proponents and opponents have even found some common ground in calling for more social and economic supports being made available to pregnant women.
In the end, the German Court’s jurisprudence helped depolarize, complicate, and lower the tone of an extremely complex and morally fraught debate. There are still deep disagreements in Germany over abortion, but they are filtered primarily through political channels instead of coming to a head over do-or-die Supreme Court nominations, where one side stands to lose and the other stands to win. Compromise and half-loafs—and nuanced rhetoric—are all still possible.
According to Greene, abortion is just the tip of the iceberg. Our judges are helping polarize our rights-tinged political debates in a variety of spheres: “In cases ranging from affirmative action to campaign finance to gun regulation, the justices almost never acknowledge the presence of constitutional rights on both sides of the cases they hear. As with abortion, doing so leaves the law erratic and disrupts the possibility of political compromise. Worse, it makes us hate each other a little bit more, to tragic effect.”
If judges were to acknowledge the legitimacy of both rights claims in cases like these and then mediate them on a facts-specific basis case by case, they would force us to get back in the business of governing ourselves and our competing rights claims. Echoing the writings of legal scholars like Jeremy Waldron, Greene laments how we Americans have mistakenly fallen into the habit of thinking that the courts—not us—are the guarantors of our rights. “We have given our Constitution to the courts,” says Greene, and as a result, we now must “rebuild our constitutional muscle.”
Moreover, our political discourse and rights debates would have a harder time falling into the trap of all binaries all the time. The outcomes of cases would hinge more on their specific fact patterns. We would have a harder time constructing mental pictures of our nation—and our political opponents—that traffic in “good guys” and “bad guys,” “right” and “wrong.” We could lay the groundwork for more compromise, give and take, back and forth. In a word, we could have less political warfare and more politics.
There would be costs to the approach favored by Greene, though. When our judges hand down their decisions, we should want them to stick to the law, to precedent, to Madison’s Notes on the Constitutional Convention, and the Federalist Papers as best they can. Judges are not our moral lights nor our philosopher kings. They are lawyers. And they are not politicians. We want them interpreting the law and applying it to fact patterns. We should be wary of judges weighing moral values.
But we would be wrong to discount the importance of the judges and the laws they interpret when it comes to the shaping of the narratives we tell ourselves about ourselves. The law is not a purely academic exercise. It not only impacts our lives and the lives of plaintiffs and defendants in real, tangible ways but also shapes the terms of our political debates and our views of one another. The law is an important part of how we make sense of ourselves, one another, and our nation. As evidenced by Greene’s comparison of the American abortion debate experience with that of Germany, the law can do that in ways that are conducive to social peace or in ways that exacerbate deep divisions.
Given that we have reached a period in our political life where our divisions are so deep and so politically salient, we would do well to take a step back and really digest Greene’s argument in How Rights Went Wrong. Arbitrary judicial decision-making would be an evil but so is a legal space that further polarizes our politics.
Law helps make our narratives, and those narratives are in desperate need of complication and complexity. Perhaps pushing the law itself towards a bit more comfort with gray areas and a bit more aversion to black-and-white, A or B framings would be a step in the right direction.
Thomas Koenig is a recent Princeton University graduate who will be attending Harvard Law School in the fall of 2021. Follow him on Twitter @TomsTakes98