Jamal Greene and Randall Kennedy, "How Rights Went Wrong"

Boston Athenæum

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. Eminent legal scholar Jamal Greene reveals how the explosion of rights is dividing America, and shows how we can build a better system of justice.