If there’s one thing Americans can agree about, it’s that we disagree. We are divided into warring camps on issues from abortion to guns to taxes—even on wearing masks and getting vaccinated. There have been so many diagnoses of why we are riven that it can be daunting to come up with a new explanation. Jamal Greene, a constitutional law professor at Columbia Law School, proposes one: in How Rights Went Wrong, he argues that our conception of constitutional rights as absolutes drives us into all-or-nothing conflicts in which one side necessarily wins and the other loses. In a pluralist society in which rights often conflict, he contends, this conception fails to afford room for compromise and is to blame for “tearing America apart,” as the book’s subtitle puts it.
Greene’s prescription is that we should learn from other nations. Many of the world’s constitutions and constitutional courts do not treat rights as absolute. Instead, they recognize that rights may be restricted in the name of competing interests. In Greene’s view, were American courts to adopt such an approach, often described as “proportionality review,” they could acknowledge competing values and either strike an appropriate balance between them or, better yet, call on political institutions to strike one. Greene prefers political to judicial resolutions of rights claims, and compromise to ringing endorsements or resounding rejections. If the courts, our prime expositors of constitutional rights, were more evenhanded and moderate in their judgments, he posits, the country would be less split as well.
Greene has crafted a cogent narrative of how constitutional rights have evolved over the course of US history, as well as a strong defense of proportionality. He also admits that social media, the unconscionable gap between rich and poor, the influence of money in political campaigns, the dominance of the two-party system, gerrymandering, and racial, demographic, and geographic divisions all contribute to our current polarization. But I am skeptical of his central arguments that constitutional interpretation is both misguided and a major factor in polarization—especially when viewed alongside all the others.
As an initial matter, Greene overstates the extent to which rights in the American conception are absolute. The Supreme Court’s decisions often reflect compromise and routinely permit constitutional rights to be overridden by competing interests.
And the alternative method Greene champions—close assessment of the facts and ad hoc balancing of competing claims—is short on principled guidance and would give judges a relatively free hand to impose whatever results they choose. Moreover, his preference for political over judicial resolution of rights disputes gives insufficient credit to the central reason for making rights constitutional and assigning their protection to judges in the first place: the political process cannot be trusted to safeguard them. In a democracy, the majority prevails, so leaving disputes over minority interests to politics could mean dooming many such interests altogether.
Greene is right that American conceptions of rights have evolved dramatically over time. The framers applied the Bill of Rights to the federal government only, not the states; indeed, they saw state and local governments (and juries) as the principal protectors of rights. As a result, the Supreme Court decided very few constitutional rights cases in its first one hundred years. (Yet the country was deeply divided during much of that time, suggesting that contemporary conceptions of rights are not a necessary component of partisan fracture.)
Slavery and its legacy illustrated the flaws in the framers’ assumption that states would reliably protect rights, and the Thirteenth, Fourteenth, and Fifteenth Amendments, adopted after the Civil War, imposed broad constitutional rights restrictions on states for the first time. They required states to outlaw slavery and to provide “equal protection of the law,” and forbade them from denying the right to vote on the basis of race and from taking life, liberty, or property “without due process.” In subsequent decades, the Supreme Court increasingly interpreted the Fourteenth Amendment’s due process clause to make virtually all the specific rights guaranteed in the original Bill of Rights enforceable against the states. Collectively, these changes shifted rights enforcement from state and local governments to the federal courts.
But the Supreme Court’s initial forays into actively protecting the constitutional rights of individuals were disastrous. Beginning in the 1890s, it repeatedly struck down laws designed to protect workers and consumers from exploitation by big business, on the grounds that such laws infringed on the “liberty of contract.” When the federal government responded to the Great Depression by enacting comprehensive New Deal legislation, the Court struck down those laws as well. Such decisions led President Franklin Roosevelt to propose increasing the size of the Court, a transparent effort to appoint justices friendly to New Deal legislation. He failed, but the Court ultimately shifted course and gave both Congress and the states broad authority to regulate businesses, illustrating that constitutional rights in the American system are anything but absolute.
In the post–New Deal era, the Supreme Court and constitutional scholars sought to identify interests for which courts particularly needed to intervene: defending the political process by vigorously safeguarding the rights to vote, speak, and associate; and protecting those who cannot protect themselves through the democratic process, such as the criminally accused, dissidents, and members of minority groups. According to this judicial philosophy, the Supreme Court should generally allow disputes about economic arrangements to be resolved democratically but should exercise more skeptical review when the majority seeks to entrench itself, cut off political avenues for change, or trample on the rights of minority groups.
This is, in Greene’s assessment, where “rights went wrong,” by not permitting compromise. In my view, this is where rights went right. By focusing on fundamental interests that are not well protected through majoritarian processes, the courts serve an integral and valuable function in our constitutional democracy. Greene’s alternative approach risks denying protection to those who cannot prevail through the political process.
The premise of Greene’s critique is that constitutional rights in the American conception are too absolute. But are they? Take his Exhibit A: the right to abortion. He argues that abortion is the classic instance of a “conflict of rights,” but that the Supreme Court in Roe v. Wade (1973) concluded that “there was no middle ground, no room for compromise.” Because it protected a woman’s right to terminate her pregnancy and refused to recognize the fetus as a “person” as that term is used in the Constitution, Greene argues, the Court brought us fifty years of pitched battles. Had it only compromised, he suggests, or left the matter to the political process, abortion politics in the United States would not be as divided as they now are.
Greene contrasts Roe v. Wade with the approach around the same time of the West German constitutional court, which required the state to take seriously both the woman’s rights and the rights of the fetus. The German legislature responded by allowing women to obtain an abortion for emotional and psychological reasons throughout the first trimester (approximately thirteen weeks) of pregnancy, and for medical reasons at any time thereafter, and the constitutional court deemed that compromise adequate. Abortion is less controversial in Germany than in the United States, Greene observes, and he suggests that this is because of the West German court’s approach. But Germany has a substantially less religious population and provides much more social support for pregnant and new mothers than the United States. These facts seem at least as likely to explain differences in abortion politics as any court decisions.
In any event, the right to abortion the Supreme Court has recognized is anything but absolute. Roe itself is very much a compromise between the woman’s right to control her body and the state’s interest in the fetus’s potential life. If the Court had treated the abortion right as absolute, it would have precluded all regulation or prohibition of abortion. But it allowed states to regulate abortion to further maternal health and to prohibit abortion altogether, except when it is necessary to preserve the mother’s life or health, after the fetus is “viable,” or could survive outside the womb (approximately twenty-four weeks into pregnancy). In Planned Parenthood v. Casey, nineteen years later, the Court reaffirmed Roe’s core principle that a woman must be free to decide whether to bear a child prior to viability but further adjusted the compromise, allowing states greater leeway to regulate abortion in the interest of both potential life and a woman’s health.
Thus, both the German and American constitutional approaches reject absolutes and strike a balance between competing interests. The principal difference between the two lies in where they draw the line for when the state can prohibit abortions absent a medical need. In Germany, it can do so after the first trimester; in the United States, after the second.
The Supreme Court is now reviewing a Mississippi law that bans most abortions after fifteen weeks, threatening to upend a fifty-year status quo in which states have been required to leave to women the ultimate decision about whether to have an abortion before viability.* To uphold the Mississippi law, as the Court appeared likely to do when it heard oral argument in December, would radically undermine women’s right to control their bodies. Unless the Court denies the right to abortion altogether, however, affirming Mississippi’s law would still be a compromise; it would just be a different compromise. But such a decision will almost certainly exacerbate the division over abortion, not ameliorate it.
What is true of abortion is true of almost all constitutional rights in our system; they are far from absolute. There are a few exceptions, to be sure. The right not to be subjected to cruel and unusual punishment and the right not to be compelled to incriminate oneself are absolute, no matter how strong the state’s interests in punishing or investigating a particular crime. But these two absolute rights have not been especially divisive as a political matter. And virtually all other rights can be restricted in the name of state interests.
The First Amendment sounds absolute on the page: it provides that “Congress shall make no law…abridging the freedom of speech.” But the courts have ruled that speech can be prohibited if it is libelous, incites violence, constitutes a threat, or amounts to obscenity or child pornography. Speech proposing a commercial transaction can be regulated in the interest of informing the public and policing business practices, and speech in schools and by public employees can be regulated if it undermines the function of the school or workplace. Even core political speech, such as protests in public places, can be subjected to reasonable regulations regarding their time, place, and manner. The right to speak is not absolute, in other words, but mediated to account for multiple countervailing interests.
The Second Amendment similarly protects a right to bear arms, but that right is subject to “reasonable regulation,” including universal background checks and bans on machine guns and on carrying guns in sensitive places. The privacy of the home is protected by the Fourth Amendment but can be invaded if the state has probable cause that evidence of a crime will be found. Race- and sex-based distinctions presumptively violate “equal protection” but are permissible if they are narrowly drawn to further a compelling interest, such as diversity in higher education. Constitutional law is shot through with decisions that recognize rights but acknowledge legitimate justifications for limiting them.
Greene also contends that rights absolutism leads American courts to be reluctant to recognize rights, pointing to decisions declining to treat laws that have a disparate impact on racial minorities or the poor as violations of the equal protection clause. It’s true that if a constitutional right is absolute and recognizing it therefore precludes any consideration of competing interests, courts may be hesitant to recognize the right in the first place. But nothing in the prevailing constitutional method would stop the Supreme Court from recognizing that laws with a disparate racial impact violate the equal protection clause unless the state can advance good nonracial reasons to explain the disparities. Courts apply exactly that approach under Title VII of the Civil Rights Act of 1964, the federal law banning discrimination in employment. Title VII prohibits practices with a disparate racial impact, unless employers can demonstrate that they serve a legitimate business purpose. In other words, the law recognizes a right to equal treatment and simultaneously recognizes competing interests on the part of businesses. The equal protection clause could be interpreted along the same lines, without any need to reject our constitutional methodology.
The principal difference between the American constitutional approach and the “proportionality” analysis Greene favors is the difference between rules and standards. Our constitutional jurisprudence seeks in the main to identify and enforce specific categorical rules to govern certain types of situations, while the proportionality approach applies a more generic, all-things-considered balancing test. Both approaches have benefits and costs. The benefits of rules are that they produce more predictable results and are easier to enforce; their cost is that in some circumstances they will be underinclusive or overinclusive. To take a nonconstitutional example, the rule that one must be sixteen to drive means that some people sixteen and older who are not mature enough to drive are allowed to, while some fifteen-year-olds who are mature enough cannot. But the benefits of the rule outweigh the cost of having to assess each individual’s level of maturity.
The benefit of open-ended standards is that they allow full consideration of all the facts and circumstances, and in the proper hands will therefore not lead to underinclusive or overinclusive results. A standard that said “only mature people should be able to drive” would allow full consideration of an individual’s readiness to do so. But such an approach also has costs: the absence of a clear rule allows biases and prejudices to affect assessments of maturity, makes it difficult for people to know when they will be able to drive, and makes it challenging to review the decisions of those administering the rule. And the “standard” approach gives the adjudicator much more power, precisely because it lacks clear guidelines to constrain decision making. Some US constitutional rights employ standards, but the courts generally prefer rules.
Greene’s preferred proportionality review is like a maturity standard for drivers’ licenses. He offers little reason to believe that it will lead to appropriate results or generate principles that constrain judges in their application of constitutional law. He repeatedly advises that judges should pay “unwavering attention to the facts of the parties’ dispute.” But without clear, principled guidance as to which facts are material and why, this is hardly an adequate method of adjudicating rights claims.
Consider Greene’s application of proportionality to Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 Supreme Court case in which a baker claimed that a Colorado law that required businesses open to the public not to discriminate on the basis of sexual orientation violated his First Amendment right to refuse to make a wedding cake for a gay couple. (On behalf of the ACLU, I represented the gay couple in the case.) Masterpiece Cakeshop pitted an asserted First Amendment right not to be compelled to express support for same-sex marriage against a right not to be turned away from a public business because of one’s identity. The Court ultimately avoided deciding the central question presented in the case by concluding that the Colorado Civil Rights Commission had exhibited antireligious bias in adjudicating it—though the Court did reaffirm the “general rule” that philosophical or religious objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Greene criticizes both sides in the case. He thinks that the dispute should have led to a compromise and that closer attention to facts might have made one possible. But attention to facts is not sufficient unless one can explain, as a matter of logic, precedent, or common sense, why they matter. For example, Greene seeks to distinguish Masterpiece Cakeshop’s refusal to sell a cake to a gay couple from southern restaurants’ refusals to serve Black customers in the 1960s. The Supreme Court rejected arguments by restaurants, private schools, and other businesses that they had a First Amendment right to refuse to serve Black customers. Greene approves of those results but appears to maintain that the same rule should not apply to Masterpiece Cakeshop.
He argues that the southern restaurants refused to serve Black customers altogether, whereas Masterpiece Cakeshop refused only to sell a wedding cake; that the restaurants invoked the right of association, not the rights of free speech and free exercise of religion invoked by Masterpiece Cakeshop; and that the earlier dispute arose during the Jim Crow era, as part of a system of practices that subordinated Black people. But Greene does not explain why those distinctions matter. Surely southern restaurants would not have prevailed if they merely refused to sell dessert to Black customers. Some restaurants did in fact assert free exercise rights, and the right of association that many asserted is in any event just as integral to the First Amendment as the rights of speech and free exercise asserted by the bakery. And if the Jim Crow setting made a constitutional difference, does that mean Greene thinks the First Amendment would permit businesses to refuse to serve Black customers today, now that Jim Crow has ended?
Greene claims such cases must be decided “at retail, based on their facts,” and suggests that the outcome might differ depending on all of these facts: the consistency of the baker’s denials of service, the “inherent expressiveness of the service provided,” the size of the shop, the degree to which the religious objector is involved in the transaction, and the alternatives available to the couple to obtain a cake. But this sort of laundry list, without a principled explanation for why these facts are relevant and how they should be assessed, provides little guidance and gives judges a free hand to impose their gut reactions. Moreover, it’s not clear why any of these facts should permit a business that chooses to serve the public to discriminate against certain customers based on who they are.
Rather, the case should be decided, like all prior cases in which businesses sought to justify discrimination by invoking a First Amendment right, on the basis of a straightforward principle: where the government regulates conduct (here, discrimination in serving the public) without regard to whether the conduct is communicative or religious, the fact that a particular commercial service is expressive or motivated by religion does not afford a license to discriminate. The Colorado public accommodations law forbids discriminating, whether businesses sell hardware or books. The fact that books are expressive does not afford bookstore owners a right to discriminate.
Greene argues that a UK court facing a similar controversy did a better job of mediating it. But the British case was critically different for a principled reason: the baker there refused a request to make a cake that carried the logo of an LGBT group and the words “Support Gay Marriage.” The UK Supreme Court found that the bakery would not have baked a cake with that message for anyone, and therefore it had not discriminated on the basis of the customer’s sexual orientation. Neither UK law nor Colorado law requires bakers to put any particular messages on their cakes. But Masterpiece Cakeshop did not object to any specific message; it would not bake any cake for a same-sex wedding, even if the cake was identical in appearance to a cake it would happily have made for an opposite-sex couple. Thus, the difference between the UK and US decisions is not the difference between a rules-based approach and a proportionality standard; it is the difference between status-based discrimination, which the law prohibits on both sides of the Atlantic, and a business’s decision not to make a particular product at all, which the law permits on both sides.
Greene’s assessment of Masterpiece Cakeshop unwittingly demonstrates the risks of proportionality review. Instead of applying a principled rule, he identifies a bunch of facts and asserts that they somehow justify a different outcome. Two judges applying the approach Greene advocates could easily reach opposite conclusions based on the same facts. And today’s Supreme Court, dominated by six conservative justices, would face little doctrinal resistance to imposing their will on the American people. The US approach Greene criticizes does not dictate results, of course, but it imposes greater restrictions than an open-ended balancing would. While Greene professes skepticism about the power judges wield in the United States, his approach would afford them even more power, not less.
The Constitution reflects a commitment to insulate certain rights from the momentary impulses of the majority, and to provide reliable protection. The Supreme Court’s recognition, in response to the New Deal, that courts have a particular responsibility to protect minority groups and processes of democracy, largely by applying not an absolutist but a rules-based approach, is critically important to the American system of justice. Reducing constitutional law to an injunction to pay attention to facts and mediate disputes through compromise risks both freeing judges to impose their own personal value judgments and weakening our collective commitments to those rights.
Texas has enacted a law that allows private parties, but not the state, to sue anyone who provides an abortion after six weeks of pregnancy. An initial challenge to that law failed on procedural grounds, because the US and Texas high courts ruled that there were no proper state defendants to sue, since the law’s enforcement is delegated to private parties. But as of now the law’s six-week ban is plainly unconstitutional—unless the US Supreme Court reverses Roe v. Wade. ↩