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35 posts from March 2021

03/31/2021

Joseph Scott Miller: A Citation-Network Approach to Mapping Judicial Ideology
Michael Ramsey

Joseph Scott Miller (University of Georgia School of Law) has posted “Justice X, dissenting”: A Citation-Network Approach to Mapping Judicial Ideology (54 pages) on SSRN.  Here is the abstract:

Appellate judges prefer some outcomes over others. We can tell because we see them disagree with one another regularly, both within a given a case and across a run of cases. Scholars, both in political science and law, have used various techniques to quantify judges’ policy preferences and chart those preferences, both across judge and through time. The Martin-Quinn score is a prominent example. But appellate judges don’t simply vote. They also write, justifying their judgments. When writing for a majority, the authoring judge must accommodate her partners in the majority, dropping or adding text (including citations) to keep the majority together. When writing a dissent or concurrence, by contrast, the judge can write simply to explain, without accommodation, how she views the issues in the case. Indeed, given that dissenting or concurring triggers varied costs, the chance to justify one’s analysis without compromise is perhaps the main benefit to writing a dissent or concurrence at all. Can we map an appellate judge’s ideological preferences in a way that harnesses the information these separate opinions provide? Citation network analysis is a promising way to do so. In this project, I gather the citation data (to earlier Supreme Court opinions) from all of Justice Scalia’s and Justice Thomas’s dissenting and concurring opinions on the Supreme Court, through the end of the October 2019 Term in July 2020, and then measure and map the resulting citation and co-citation networks, across all opinions and parsing concurrences from dissents. Justices Scalia and Thomas are an especially apt pair of justices to study in this way for three reasons: (a) as of 2020 they served for a similar period of years; (b) they have both dissented and concurred at similarly high rates, generating rich citation networks; and (c) they were each one another’s closest ideological fellow-traveler using scores like M-Q , making any differences between them revealed by citation-network analysis that much more informative. In summary: Justice Scalia sought mainly to reshape judicial power. Justice Thomas, by contrast, has sought mainly to reshape legislative power, including by enhancing state legislative power.

03/30/2021

Originalism in Torres v. Madrid
Michael Ramsey

Last week the Supreme Court decided Torres v. Madrid, which asked whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment.  (Answer: yes, 5-3 per Chief Justice Roberts).

Earlier I suggested that this case was a candidate for a liberal-originalist alliance, based on Justice Scalia's dicta in California v. Hodari D., 499 U.S. 621 (1991) (observing that “application of physical force to restrain movement” is a seizure under the Fourth Amendment “even when it is ultimately unsuccessful”) and the petitioners' strong assertions of originalist support.  And indeed, the Chief Justice, for himself and Justices Breyer, Sotomayor, Kagan and Kavanaugh, relies heavily on Hodari D. and the founding-era common law rule.

But Justice Gorsuch (writing for himself and Justices Thomas and Alito) dissents.  From his introduction: 

The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.

Until today, a Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it.

He makes some powerful points, leading (among other things) to a conclusion that Scalia's observation in Hodari D. was ill-considered.  Although I was initially inclined to think originalism favored the petitioners, on reflection the dissent seems more persuasive.  (But it seems odd that the Constitution would not limit an officer's authority to shoot a suspect as long as the suspect escaped).

03/29/2021

"Originalism: Standard and Procedure" by Stephen Sachs
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Originalism: Standard and Procedure (Harvard Law Review, forthcoming) (60 pages) on SSRN.  Here is the abstract:

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.

Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.

It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

I read an earlier draft.  This is a great paper, and a pleasure to read.

03/28/2021

David Schwartz & John Mikhail: The Other Madison Problem
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) and John Mikhail (Georgetown University Law Center) have posted The Other Madison Problem (89 Fordham Law Review (forthcoming Spring 2021)) (52 pages) on SSRN.  Here is the abstract:

The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

Agreed.  Madison is overrated as an authoritative interpreter.  I'm not sure, though, that I agree that the conventional view among legal scholars (at least, among originalists) is to the contrary.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!")

03/27/2021

Originalism and International Shoe in the Supreme Court's Ford Motor Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Waiting for the Other International Shoe to Drop.  From the introduction:

The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. [decided by the Supreme Court earlier this week] was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate.) Justice Alito concurred in the judgment. He suggested that the majority opinion put a new "gloss" on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court's competency normally depended on the defendant's presence in, or consent to, the sovereign's jurisdiction. But once a plaintiff was able to "tag" the defendant with process in the jurisdiction, that State's courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State.  Pennoyer  v.  Neff, 95 U. S. 714, 733 (1878).

Specifically on International Shoe, Gorsuch writes: 

In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction that its own earlier decisions had seemingly twisted in favor of out-of-state corporations.  At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction
other than its home State. In place of nearly everything that had come before, the Court sought to build a new
test focused on “traditional notions of fair play and substantial justice.”

It was a heady promise. But it is unclear how far it has really taken us. Even today, this Court usually considers
corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global
conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though
individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can
be found.  Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.

Ultimately Justice Gorsuch doesn't reach any conclusions but calls for further study:

The parties have not pointed to anything in the Constitution's original meaning or its history that might allow Ford to evade answering the plaintiffs' claims in Montana or Minnesota courts. . . .The real struggle here isn't with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe's increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution's text and the lessons of history.

I'm sympathetic to Gorsuch's doubts.  In connection with the Daimler AG v. Bauman case a while back (also raising the question of personal jurisdiction over an out-of-state corporation), I wrote

... If California [the forum state] says to Daimler [a foreign corporation] "You can only do business here if you agree to be sued for wrongs you commit anywhere," why does that violate due process?  Daimler can choose to do business in California or not, but it doesn't have a right to do business in California.  And the fact that Daimler did its California business through a subsidiary doesn't seem to change the analysis; equally, it seems, California can say that a foreign corporation can't use subsidiaries to evade jurisdiction, and again Daimler can just stay out of California if it doesn't like that rule.  I see nothing unfair about putting Daimler to that choice, and in any event I see no procedural injury.

Perhaps there is some historical account of due process suggesting that violations could arise from unreasonable conditions on doing business, but I don't think anything like that has been demonstrated.  ...

What this case really suggests, though, is the need for more originalist-oriented scholarship on the civil procedure aspects of the due process clause.  Everyone wants to write about the clause's substantive aspects, or its criminal procedure aspects, or its constraint on executive power.  What about its constraint on courts?  The area seems, at best, poorly understood.  Even for those who are not fully-blown originalists, it would seem helpful for courts and litigants to have some anchor in the text's original meaning.

03/26/2021

Ninth Circuit Second Amendment Open Carry Decision in Young v. Hawaii
Michael Ramsey

In Wednesday's decision in Young v. Hawaii, an en banc panel of the Ninth Circuit held (7-4) that the Second Amendment doesn't protect a right to openly carry arms in public.  The court earlier had held that there is no right to carry concealed arms in public.  (More from Jacob Sullum at Reason here.)

Both the majority and dissent are strongly originalist in orientation.  Judge Bybee's majority summarizes: 

After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

And from further on:

We begin with a review of the historical record, starting with the English tradition, and then review the Colonial era and the post-Second Amendment era. Our focus on the American sources will be on state laws and cases. As the Court explained in Heller, “[f]or most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” 554 U.S. at 625. As we review these records, we are well aware that we are jurists and not historians. That creates the risk that we are engaged in Professor Kelly’s “law office history.” That is not only a risk we must assume; after Heller, it is our duty to confront such history. In an effort to get the history right, we have also honored the history of common law advocacy: We have looked to the parties to shape the arguments and call to the court’s attention the appropriate precedents. We have also relied on the parties and amici to direct our focus to the principal historical sources and any important secondary sources they would like us to consider. We have tried to be as complete as possible in recounting this history, but this is a legal opinion, not a dissertation, so we are likely to fall short in some way.

The opinion then follows up with extensive historical discussion beginning with English practice dating to 1299.  (Eight pages later it's only up to 1377; 22 pages later it gets to the Constitution [which it unfortunately says "was ratified in 1789" rather than 1788]).  Thereafter it focuses mainly on state statutes and cases in the post-ratification period.  In all, the historical discussion covers 52 pages.  In conclusion (on the main point):

Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self defense. See Kachalsky, 701 F.3d at 96 (“[O]ur tradition . . . clearly indicates a substantial role for state regulation of the carrying of firearms in public.”). To be sure, any one sentence declaration that we might make will be subject to qualifications and exceptions (which we will address in the next section), but in the main, we have long distinguished between an individual’s right of defense of his household and his business and his right to carry a weapon in public for his own defense, absent exceptional circumstances. “Like . . . the right secured by the Second Amendment,” the government’s right to regulate the carriage of weapons in public places “is not unlimited.” Heller, 554 U.S. at 626. But we are persuaded that government regulations on open carry are “[l]aws restricting conduct that can be traced back to the founding era and are historically understood to fall outside of the Second Amendment’s scope,” and thus “may be upheld without further analysis.” Silvester, 843 F.3d at 821. 

The contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly. We need go no further than this, because the Hawai‘i firearms licensing scheme Young challenges only applies to “a pistol or revolver and ammunition therefor.” HRS § 134-9(a). This power to regulate is fully consonant with the Second Amendment right recognized in Heller. Heller found that the pre-existing right to keep and bear arms is not a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626. “‘[T]he central component’ of the Second Amendment” is the “basic right” of self-defense, whose exercise is “‘most acute’ in the home.” McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 599, 628). The heart of the Second Amendment is “defense of hearth and
home.” Heller, 554 U.S. at 635. 

Judge O'Scannlain's dissent (joined by Judges Callahan, Ikuta, and R. Nelson) begins:

The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self defense in any other place.

This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.

In so holding, the majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.

In contrast to the majority, the dissent focuses heavily on the Constitution's text and its eighteenth-century meaning, and roughly contemporaneous commentaries.

Methodologically, I'm inclined to prefer the dissent (unsurprisingly, per my discussion of originalist/textualist methodology here).  it seems right to start with the text, consider the immediate linguistic and political context, and only then expand the inquiry into times that are more historically remote.  Beginning in 1299 tends to privilege the outlook of the thirteenth and fourteenth centuries, which seems like the wrong way to do it.  Perhaps Judge Bybee was so concerned about being accused of law office history (as his opening discussion suggests) that he overdid it in the opposite direction.  In any event, it seems to me that the English practice of the eighteenth century is substantially more relevant.

On to the Supreme Court?

(Via USD law grad Alan Beck, who argued the case for the claimant.)

UPDATE/SOMEWHAT RELATED: In Jones v. Becerra, a pending case challenging a California law restricting sales to minors, the Ninth Circuit entered this order:

Appellants and Appellees are ordered to file supplemental briefing addressing the original public meaning of the Second Amendment. In the briefs, the parties are instructed to specifically address the following:

1. What is the original public meaning of the Second Amendment phrases: “A well regulated Militia”; “the right of the people”; and “shall not be infringed”?
2. How does the tool of corpus linguistics help inform the determination of the original public meaning of those Second Amendment phrases? (See Corpus of Historical American English, BYU, https://www.englishcorpora.org/coha/; Corpus of Contemporary American English, BYU, https://www.english-corpora.org/coca/)
3. How do the data yielded from corpus linguistics assist in the interpretation of the constitutionality of age-based restrictions under the Second Amendment

(Thanks to Neal Goldfarb for the pointer.)

03/25/2021

Supreme Court Argument in Caniglia v. Strom
Michael Ramsey

On Wednesday the Supreme Court heard oral arguments in Caniglia v. Strom, a case I flagged earlier as one of possible originalist interest.  At U.S. Today, David Gans (Constitutional Accountability Center) discusses the case here: In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant?  An excerpt:

"When it comes to the Fourth Amendment, the home is first among equals,” as Justice Antonin Scalia put it in a 2013 ruling. If police can enter a person’s home without any suspicion of criminal wrongdoing simply because they claim to be taking care of the community, the Fourth Amendment would be close to a dead letter. Our right to be secure would exist only at the whim of the police. 

The police officers who broke into the home of Edward Caniglia are urging the court, with the rather surprising support of the Biden administration, to bless a massive expansion in the power of police to enter the home. They claim that police officers may invade the home to protect the purported safety of the community if the police acted “reasonably.” ...

Embracing such an open-ended formula would grant police officers the unbridled discretion the Fourth Amendment was designed to prevent. The Fourth Amendment promised to end indiscriminate searches and seizures of the home. Caniglia tests whether the justices are willing to enforce the central idea at the heart of the Fourth Amendment: the need for strict limits on excessive police discretion. 

Yes, and as I commented earlier, I bet there's no originalist support for this doubtful exception.

The courts have a sorry history of (a) saying the Fourth Amendment doesn't apply as strictly to cars because, well, cars are different somehow (never mind that there were personal vehicles at the time of enactment, albeit without engines, and cars are obviously "effects" protected by the Amendment), and then (b) letting whatever exception is made up for cars extend to other situations in ways that obviously wouldn't have been accepted in the founding era.  Fortunately the Supreme Court has been cutting back on this practice, and Caniglia may be an opportunity to make some more progress in that direction.

Plus a great opportunity for an originalist-liberal alliance.

03/24/2021

Holden Tanner: Constitutional Norms in Originalist Adjudication
Michael Ramsey

Holden Tanner (Yale Law School, J.D. Candidate, Class of 2021) has posted Constitutional Norms in Originalist Adjudication (35 pages) on SSRN.  Here is the abstract:

Our legal system thrives on norms. Informal norms about the proper way to wield constitutionally conferred discretion are often the sole source of guidance for government actors in areas where the courts lack control. But norms also show up in areas that involve judicial interpretation. When a norm is brought to the attention of a court, the temptation of originalist and textualist jurists will be obvious: ignore it, and just focus on the text. This paper offers a dissenting view. Norms are valuable arguments in originalist adjudication, and nothing in the standard account of originalist jurisprudence requires courts to ignore them. Instead, a renewed focus on norms will sharpen originalist sensitivity to key ideas of adjudication, such as workability analysis in the stare decisis context and the role of prudential choices in constitutional construction. Norms may even offer a way past the logjam in public meaning originalism, freeing up jurists to focus on case-by-case normative choices rather than subscribing to a single controlling norm when deciding between permissible interpretations. Originalism helps us think about what role norms play in constitutional decision-making, and norms help us understand the forms and limits of originalist jurisprudence. Rather than ignore them, originalists should embrace them.

03/23/2021

Calvin TerBeek on Originalism after Brown v. Board of Education [Updated]
Michael Ramsey

In the American Political Science Review, Calvin TerBeek (Chicago): “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism.  Here is the abstract:

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

And from the conclusion:

This article argues that the modern GOP’s constitutional “originalism” grew directly out of resistance to Brown. Once elite academic lawyers legitimized originalism as a potential jurisprudential theory, party-in-government elites such as Attorney General Meese could claim it, and Bork’s article (saving Brown via an invented “juridical rule”), as setting forth an apolitical search for correct constitutional answers. More than that, as this constitutional ideology developed in the post-Reagan years with the sustained help of the Federalist Society and affiliated legal academics, conservatives rewrote their own history. This mythology not only had (and has) the virtue of providing a professional claim for conservative legal elites—these were (and are) academic arguments with the demand to be treated as such (Teles 2008)—they also provided the benefit of being able to erase the uncomfortable racial origins of modern originalism. The empirical purpose of this article has been to recover those origins.

Theoretically, one case study has limited reach. The theory is likely time bound. Built into it is an assumption of the clear distinction and division of labor between legal and political elites, an expectation that may not apply to the nineteenth century’s “state of courts and parties” (Skowronek 1982). The clearest comparison is to ask whether the Progressives-cum-New Dealers’ “living constitutionalism” follows the same historical pattern or if there are critical differences. An empirical extension of the theory, too, might examine how constitutional ideologies redevelop and expand (or contract) upon institutionalization in the Department of Justice and the courts. Finally, it may be time to retire the deracialized “three-corner” stool accounts of postwar (constitutional) conservatism’s development. It is not that race is all important, but it is to say that race is as important.

UPDATE:  Eric Segall comments here, at Dorf on Law.

03/22/2021

New Book: Jamal Greene's "How Rights Went Wrong"
Michael Ramsey

Recently published, by Jamal Greene (Columbia): How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Houghton Mifflin Harcourt 2021).  Here is the book description from Amazon:

“Essential and fresh and vital . . . It is the argument of this important book that until Americans can reimagine rights, there is no path forward, and there is, especially, no way to get race right. No peace, no justice.”—from the foreword by Jill Lepore, New York Times best-selling author of These Truths: A History of the United States

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.

Professor Greene presented a chapter of this book at the originalism works-in-progress conference in San Diego in February 2020.  It's great to see the whole project in print.