tv Jamal Greene How Rights Went Wrong CSPAN April 10, 2021 11:00pm-12:01am EDT
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our featured author tonight jamal greene is the professor of law at gayle university -- columbia university columbia law school a graduate of harvard college and yale law school former law clerk to the honorable john paul stevens who was also reporter for "sports illustrated" from 1999 to 2002 and he's a man of diverse interests. he is joined by randy kennedy, my old friend. brandy is the michael cline professor of law at harvard law school. randy received his undergraduate from princeton and his law degree from el university attended oxford university as a rhodes scholar former supreme court justice thurgood marshall. he's the author of six books including race, crime and the law for which he received the robert kennedy book award. he is a practicing lawyer and
has been a member of the bar of the supreme court of the u.s. and colombia member of the american philosophical society american academy of arts and sciences. tonight they will discuss jamal's new book "how rights went wrong" why our obsession with rights is tearing america apart welcome to you both. glad you are here. >> thank you carolyn. good to be here and thank you to randy for agreeing to participate in this conversation. i thought it would take a few minutes to introduce the book and i thought i would do that, i would start doing that by reading a little bit of it. the old-fashioned way. and then i will say a little bit about the general themes and the problem that i am trying to address. so i'm going to read a couple of paragraphs.
you have the right to remain silent in the right to free speech, the right to go out and the right to stay home. the right to worship and the right to doubt the right against a racial -- and the right to hate or the right to marry and have children the right to work and terminate pregnancy. the right not to be tortured, the right to die, the right to vote and the right not to. the right to education and the right to homeschooling, the right to health and health insurance, the right to eat and stop beating and the right to clean air and water and their right to smoke cigarettes and the right to work, the right to party. a performance artist best known for smearing chocolate over naked body -- he lost the conservative advocacy group called citizens united claimed the right to corporate treasury funds to an anti-hillary clinton
movie during their first presidential run. they won. two orthodox merchants in philadelphia claimed the right to keep their store open on sunday. they lost. jack phillips the colorado baker claimed a right to refuse a cake for a same-sex wedding. he lost. two missouri women claimed the right to braid hair without completing a 1500 hour training course in cosmetology. they lost. a group of neo-nazis claimed the right to unite with racist propaganda and bringing automatic rifles and a public heart and virginia. they won. they claim the right to food shelter and clothing and they lost prelaw man-to-man for the right to use his homemade nunchucks to teach karate style. he made it up for his children. he lost. i'm going to posit there.
there is more to the book but i'm going to pause their and talk a little bit about the problem that i am trying to address here. the book is about the confrontation between rights -- the basic question is how do you deal with rights in a society that is obsessed with different values and different commitments and to put the options that we have in a crude fashion one option is to decide which values the competition will promote in which values it doesn't and protect the values that it promotes those layabouts because the rule of law requires us to protect those rights zealously and are the ones that the constitution doesn't adegbilly promote leave them. that's the path that we have
chosen and that's the path that's important and we follow the course. that's the contingent reason we will get into or can get into. that's where we find ourselves and i think it's the wrong path. i think it's intuitive that that's what you should do but it's the wrong path for three reasons and they are interconnected with each other. one of those reasons is that separates rights from justice. the right to wind up having depends on a legalistic interpretation of a particular constitutional category and those categories might relate only incidentally or not at all. why a fair right to pornography that not a right to be protected against violence? neither of those are in the constitution.
second this disables us in the say the right conflict which is something we see everywhere. forces us in the face to erase one right or another and that is alienating to one or the other and think about affirmative-action or abortion rights and the way that courts and the rest of us as well framed them as one right of having to win out over others and third it polarizes or contributes to our oversedation because it turns political concept which should be resolved in the ways that resonate with conflict resolution into legal concepts and treated as binary.
that require us to assign constitutional status to one party in a dispute over another. it has a tendency of making us line up on one side or another and allies read or sing and raising the stakes of our political tribalism. what i suggested the book is instead of recognizing only a few rights and presumptive weight absolute rights treating them strongly we should be more generous and recognizing this but treat them pervasively as inherently limited and to try to resolve those. at retail rather than at wholesale. now what does that mean? rather than asking whether the constitution protects the particular right or not we should focus much more on questions on what the government is trying to do or accomplish and what evidence it's relying
on how big of a burden it's imposing on a particular party's whose interests are at stake and how costly would be to relieve that burden. is the right wildly disproportionate to the government ridiculous interest or objective? the justice system talking abstract wages to put some texture into that abstract knowledge, and mentioned citizens united in the course of the book second paragraph. that is the case that i think many of us unless you have studied that in great detail, it's the way in which its disgust and indeed the way in which the supreme court resolved it treats the conflict of citizens united as one of corporate speech rights and government efforts to limit those corporate speech rights in
this case the rights of citizens united. there were some claims made by the government in that case about political equality and the importance of limiting citizens united is an ideological corporation that wanted to put out the hillary clinton movie anti-hillary clinton movie and they are not allowed to do that within 30 days of an election, 30 days of a primary or 60 days of a general election. and the court addressed the free speech issue then -- rather than the equality of citizens that the government is relying on in passing a law limiting corporate electioneering. what is the difference between how the court treats it and how many of those treated by a court and how the book would urge one to treat that conflict so there
were numerous factors in that case that made it them at more interesting case than citizens united had been general motors or if citizens united speech was being cut off entirely so what the law actually said was that not citizens united may not speak its that citizens united had to sit up a separate -- they can't use their general treasury fund. so how word and submits it to set up and how burdensome is it on citizens united? that question is not asked in this case. you should want to know and care about whether citizens united is in ideologically corporation as opposed to someone who makes widgets. doesn't seem relevant in this case but you should want to know if citizens united is putting out tv ads which at least at the time of the case involved a captive audience who could sit there and watch the act as
opposed to video-on-demand for someone has to actually ask for it in order to receive it and is that the relevant difference? so those kinds of contextual differences are in a closely held corporation or is it traded on the new york stock exchange or should it matter? if you ask me the value of political equality of the value of free speech i'm left of center and i will choose political equality and someone who is right of center may choose -- but if the question is should we impose this particular rule on citizens united and ideological corporation within 30 days of an election, no, i don't know. let's talk about that or let's figure out where there is consensus and let's figure out
where we can agree. this is just an example. i could perform a similar analysis of lots and lots of issues which we can get into so that's the big stick rest of the book is that it's distracted to talk about rights in the way we tend to and there are better ways and with that i will invite the very generous -- kennedy into the conversation. >> thank you very much and congratulations on your book. and all of your other writing. i look forward to a nice discussion. your title is how right went wrong and in the book there is a lot to suggest that the courts
have actually been leading us more and more a stray so when were rights handled rightly in america? >> never. this is an important point i think. i will concede that how rights went wrong sound like they were right at one point and then they went wrong. this book is not a piece of the stalls and i'm not the stalled six. i do think that there is something in our founding, america's founding that is worth recovering and in particular the founders of the nation understood rights in communal terms and when i say communal terms i mean when the declaration of independence
talks about inalienable rights of life liberty and the pursuit of happiness. it's not talking about achieving those rights by having some judge, a federal judge against the majority. talking about the need for self governance and the declaration of independence in order to a chief those rights that governments are instituted. so they are understanding consistent with the bill of rights was the way you realize and the way the community realizes is by having structures of self-government that will limit the path to them but the way you work out those limits is through institutions of government, juries, local legislatures. for them to would have included
the church and it would have included the militia. today we have a very different discussion. we have a very different conception for very good reasons because the founders discussion was exclusionary. communities of interest to them or communities of property of white men and that is certainly not a legitimate government are something we should want to go back to but what we have been trying to do i think unsuccessfully over the last 230 years is to integrate an understanding of that government as being something that you do to protect your rights with an understanding that in some instances that's not going to be sufficient for some other institution to protect the rights of those who are not well-integrated into the political life of the community.
that's the post-civil war constitutional amendment so what happened is we ended up i think for entirely contingent reasons in the middle of the 20th century understanding rights as having one of two characters the right to claim. either someone was making an attack on what lawyers lawyers would refer to as social and economic legislation. ordinary legislation of the state and he basically didn't have rights in that context or we are talking about civil rights, rights to religious freedom, black civil rights as they were threatened and eviscerated in the jim crow south. if that's your model either you don't have rights or the government is terrorizing you. that's the kind of manichaean
frame to think about right but we haven't gotten away from that frame even though the kinds of claims would make about rights in the modern world post-1950s world, 1960s and 1970s involved a much more complex right with people making claims about reproductive freedoms and affirmative action and before making claims against the government the provisional governmental services and making claims that were very different in the claims made before that. free speech was different in the 60s and 70s than they were in the 40s and 50's. so there's a mix match -- mismatch and it threatens our ability to be a pluralistic community. community is too optimistic a word but they society in that we think that we have to choose which rights we have in which rights we don't.
>> obviously rights is the key word. there are two other words that come in a lot in your remarks and the two books i have been minor and in one hand along the other politics. you have the following two sentences in our read them. the purpose of politics is to negotiate over disagreement and the purpose of law is to set the ground rules for that negotiation and that really struck me. i put a checkmark in the margin because because people who grapple with law particularly everall constitutional law, are
often trying to make a distinction between law and politics and in those two sentences you do i want to press you, is there a distinction between the two? can you really distinguish law and politics or is it the case that actually judges are just politicians with black robes who were sued their politics using different sources and using different vocabularies but nonetheless really a political project. >> it's a fair challenge and i think it is something we have of course argued about for generations. i will push back a little bit on the frame of judges and
politicians without necessarily pushing back on the idea that law and politics are largely continuous and i will use the word continuous. it can be the case and let's just conceived for the moment that law and politics are the same thing. it can nonetheless be the case that the people charged with it understand their roles differently than the people charged with doing the thing called policies so i don't know that one needs to draw a distinction between judges and politicians. if i tell you your job is to say whether your job is reasonable or not as opposed to deciding whether it's an idea you might make different decisions and i do think and i'm oversimplifying
obviously but i do think judges by and large often understand their jobs in the former sense rather than the latter sense with lots of -- into it and that structure typically falls apart and highly fraught highly politicized cases where because judges are human beings it becomes harder to maintain. now going back to the loft politics i do think that in constitutional law and i will distinguish that from other forms of law, in constitutional law the kinds of questions that we ask about these things we tend to call rates i think are in really should the continuous between politics and law and why is that? the job of a judge is to resolve it at least in our system.
not that the judges can't resolve disputes. think we often think of the job as a supreme court justice is to declare our rights or interpret the constitution. that's the job that they do. i think the job of the judge is to resolve disputes in a day be the course of resolving disputes he has something to say about the constitution. if you read -- by john marshall in that case but the job of all attacks is all to resolve disputes but to resolve this agreement. laws and politics are both about disagreement and the way through resolve disagreements if we are not distracted by questions of what rights do we have, our burden is what's happening and how urgent is that?
can we resolve that word in and is there something we can work with to try to figure out how to solve this problem and narrow the range? if you are having a negotiation politically those are the kinds of problems you would normally have. in an ordinary disagreement you have a right and that's a very legalistic frame. and i don't think there is any reason in the constitution why disagreements about rights should take any different form. in the case like take a race-based affirmative action, well applicants who haven't gotten into a particular institution claiming because that institution uses race that violates their right to equality. the school is claiming something
very similar that if you don't use race and i say they are claiming this is the sentence that the claim. without using race we are treating people equally so okay now we have the kind of the disagreement. if you don't have to decide that the constitution or text the equality rights of one group or another come up or text both of them so let's get past that question and get down to brass tacks which are going to be much more contextual. i think if the legal discourse treats questions that overlap the politics in a way that allows them to be continuous we can be having the same conversation. the kinds kind of questions i want the government to ask is m.a. respect in the rights of others and what that means is and might birding them
unnecessarily? am i using a sledgehammer to crush an aunt? those are the kinds of questions that the law should ask in my view and those are the questions i would encourage political activist to use when they engage in lawmaking or interact with citizens in other ways. >> one of the bit parts of your book that i most enjoyed your commentaries on particular cases and so i'd like to ask you about a couple of them. it is the case that you did not mention. you mentioned with a lot of praise brown versus board of education that the case i want to ask you about is not brown versus board of education and was the supreme court and
validating racial segregation in public update primary and secondary schooling. i'm curious what you would do with the implementation because i would think first of all why don't you explain to the audience who don't know what brown to is and second i would like for you to comment on brown two acus i think the way that the court handled that would be very much in keeping with how you think courts should behave. the reason i bring this up as you know it's a lot of people are very critical of the way the supreme court actually handled around. >> brown two was decided a year after the brown versus education brown versus educations as separate and equal schools and separate equal schools are unequal and unconstitutional but there's an important question of what the courts remedy should a
because this is not joe versus jane in a contract dispute. this is 17 states and an additional four with the option of the county that have entirely different systems. in order to remedy that they are going to have to do a lot of work that courts aren't used to doing in terms of actually integrating entire bodies of citizens who live in different places into a single school system. and brown ii is what remedy are we going to order? ..
>> school systems implemented, i am paraphrasing a little bit, but the dreaded phrase with all delivered speed which is a term the courts had used for a long time to refer with attention to administrative difficulties. how do you construct the right kind of buildings or rezone and so forth. the reaction to brown in a number of the deep south and brown in general is to ignore it and resisted in various ways.
as randy says brown is criticized as the court not being aggressive enough with the remedy it was requiring. he says jamal greene, you seem to be interested in a dialogue of jurisdictions and courts around things of administrative convenience. not necessarily the strong rights or remedies paying attention to facts. how do you feel about brown part two? i think the words are right. the right response in a case like brown was to pay
attention to the administrative difficulty of school integration that if a jurisdiction is acting in good faith and it takes two or three or four years to fully integrate, that's fine. but that's not what happened. they were not acting in good faith. this goes back to brown itself. i'm not against rights are strong rights. but strong rights should be attached to governments you have to make a judgment if they are in good faith are pathologically that cannot be trusted. much more skeptical of strong rights where the court itself even believes the government is acting for legitimate reasons. i think brown2 and the implementation is political courage of judges whether jurisdictions are acting in good faith or not.
randy could push back even more and say that might be true in 1956 but what about 1970s with really difficult questions of people acting in good faith or bad faith even in good faith they will maintain de facto segregation in lots of ways. that's a hard problem. when you get to the point where a good faith government runs up against serious political obstacles, that's the politics courts are limited how much they can do. >> now will do another case brown versus board of education, maybe the most famous supreme court case of the 20th century and the challenger could be row v
wade. in your book you talk about roe v wade and compared united states supreme court handling the abortion issue with the way of courts abroad focusing on germany the way courts abroad have done with the abortion issue. and you suggest actually that courts abroad have issued - - handled the abortion issue better than the supreme court has handled it. fill that out. the question i have is, are you criticizing the united states supreme court to much?
are you saying we have this incredible polarization over abortion and you really point the finger at the supreme court. when i was reading i was thinking there are other actors could he point the finger at other places as well? maybe they were more important but unpack your discussion of abortion, the supreme court of the united states and courts abroad. >> i will start by saying this is a chapter in the book and it's a complicated story. whatever you get out of my synopsis, i encourage you to pick up the book and read chapter five for a deeper dive. i do think the court's decision with roe v wade and how it style this decision
contributes to a rupture in abortion politics in the us. there are lots of other things that contribute, so yes i agree there are other actors involved there's a lot of opportunism happening in the seventies around this issue. but the chapter compares what's happening in the us to germany at the same time. abortion was a more controversial issue in germany than it was in the united states. today is much more controversial issue here than they are. there are landmark supreme court decisions that happen at approximately the same time in both places. here will be weighed abortion restrictions particularly texas and georgia and then also the companion case with bolton and the court has to decide what do we do with
these abortion restrictions with the recognition of the women with rights over their bodies and in germany abortion is forbidden and tile law is passed. they are the christian democrats bring a lawsuit to say that liberalization is not respectful of the value of fetal life they say that has a constitutional value. coming from very different perspectives in these cases, opposite in some ways, the german court from a much more conservative perspective. says it doesn't respect fetal life enough and conservative from the view of us politics. but what the court says is the
government has to pursue all of the constitutional values we think that are important including the value of life that extends to fetal life and the right of personality which is the equivalent of the economy interest of women. each side has to show some respect to the other side. that is what i think is setting groundrules for politics. so from the pro- abortion rights perspective had we show respect for fetal life they say is to give women choices. women have genuine choices. they will get genuine choices if they get good prenatal care and good access to childcare in employment guarantees with a social safety and they will make choices that result with lower abortion as a way we can
show respect for fetal life from the other perspective how do we give something to women's autonomy? maybe we think about restrictions are available in the first trimester versus later in the pregnancy can we impose restrictions in the first trimester are not the second? there is a big political compromise and they trade-off those interest so what results is all the parties along the higher spectrum contribute to the political no caps on - - negotiation. and dialing down the temperature. so it's not about the right way to do abortion regulation. this is the right way to do constitutional democracy to
set boundaries around our values. in roe v wade in the us, justice blackmun said considering the question if fetal life has any constitutional value and said it doesn't. because the case would fall apart. we cannot recognize autonomy over their bodies if we also recognize fetal life so that's a big cleavage in the antiabortion movement that makes political compromise very difficult. it is a complicated story. there's much more going on than the supreme court. but i do think the tap on - - the chapter demonstrates, it's not that this issue is impossible to deal with, inevitably results in apocalyptic political
conflict. courts have a very important role to play to dial down the temperature of a political controversy in a constitutional democracy that's the role that should be played. >> many of the cases you talk about our supreme court cases. but not all. in the last chapter of the book, you talk about your workplace and the question of speech on campus and how that has become a volatile subject. you discuss the case from a couple of years ago, the auburn case. tell us what that case was
about and what your view of the handling of the case by the judge was. tell us how the judge handled the case. i have to tell you, i disagree with you strongly. you really criticize the judge and i think the judge was right. so first, what was the case about, why do you criticize the judge? you can imagine why i disagree with your resolution or your view how it should have been resolved. let's go with that. >> i'm not surprised you disagree with me. this is a case that auburn, a
guy, not even a student or anyone in the community does not even live in alabama on - - in alabama is a white nationalist. who goes around talking to public audiences on college campuses and goes to auburn and rinse out a space on the campus and auditorium for richard spencer to speak and students at auburn, african-american students and others protest to say we don't want this person to speak on the campus and university folds and says we will kick him on campus. this guy sues on richard's behalf and the district judge takes the case that auburn is a public university and has restricted the speech of
someone and done it on the basis of this person's viewpoint. if richard spencer were radical egalitarian and came on the campus and white supremacist objected and said we don't like equality they would have let him speak. that is viewpoint discrimination. so he dutifully recites a bunch of supreme court cases therefore gets the highest level of scrutiny and fear of the audience reaction is not a good enough reason to restrict someone speech. so my objection just as you agree i disagree in that case that if they were to show up and arrest richards venture - - richard spencer i think
that's the relevant question it is contextual this is a university it has students and a community their job is to educate the students and that involves curating what the students what are they exposed to and in some cases how they are allowed to speak themselves. this is a very particular institutional environment and has constitutional protection. the university itself has academic freedom rights. the earliest cases sweeney versus - - was about how to educate students. those values are important. they are very important of pluralistic communities on college campuses.
with universities being able to make choices who they allow on the campus and who they don't allow. there are also free speech rights at issue. but getting contextual, the cost and free speech terms is minimal to my mind. an outsider to the campus. many outlets in which he can speak. he's not being sanctioned in any way or punished in any way. it's a clash of values. those are of constitutional significance and on both sides of the question and are extremely significant for the university to curate the information available to students and it's minimal for richard spencer who could go a few blocks down the street off of our parents campus and go to the park and give the same speech and would not be bothered. this is a great example it's
the ways in which a standard american approach to freedom of speech flattens different questions into them and i can questions of the spree on - - of the free speech is violating and it's a long spectrum and this is the tip of that spectrum. >> we have questions coming but i want to push back a little on the last one. first, in your introduction you said the university folded to the protest suggesting comments one thing if it is curating to say as an
educational matter, we want to protect our environment or something, that just suppose it was mere capitulation and is probably the case there were some members of the case of the auburn student body who did want to hear this terrible spencer talk. what about that? what about that consideration quick. >> this is part of what they mean by academic freedom that universities can make those choices. are there circumstances under which i could imagine a court foreseeing a university to host a speaker against the wishes of that university? i would have to think
carefully. but students alerting a university to the presence on campus of people holding discriminatory views is something universities i think are entitled to take extremely seriously. i don't know if i can make a fine distinction between capitulation and a different kind of judgment. in a case like this. dispenser wanted freedom on campus it's a much closer case or invited by a student group. we tolerate that.
different universities would make different choices in the circumstance. and we tolerate that kind of experimentation in that context. something to be celebrated. why not this one? >> would we be better off without courts empowered to nullify legislation? i don't think so. you may detect in the book some sympathy for a purely political constitutionalism. but again, there is a role for the courts to play and either because they are acting in bad faith or they have been extremely clumsy. legislatures and executive officials go to far don't
respect the rights of the constituency. i talk about berkeley and the role of the free speech movement in the 19 sixties. the rule there was at they shut down student speech on campus nobody made engage in any political discussion at all that's the burden to use university space. to start on - - to talk to students. >> question from audience. aren't politics all about power in law is about containing that power? >> no. i don't think so. i think there is a way to understand politics is purely about power but i use it in a
different way than the electoral politics that there will be a loser or winter to the election but it also happens in day-to-day interactions with each other. it's part of a political culture to resolve disagreements to persuade one or the other. that can break down there is no political culture. that is it the end of democracy when it happens. but politics i think it is a much broader concept electing people to exercise power. when i talk about politics i'm talking about political culture, not elections. >> does your view of judges to spit on - - change the rule of precedent in the legal system?
>> there is no necessary relationship between the things i say in the book and having a system of precedent. i do think there is a crude way of describing what the book is about to say i much more interested when we talk about rights conflicts in standards rather than rules , which is to say i don't want judges to make a decision that purports to resolve all cases in the general ballpark of the cases for it. that is a lack of humility and alienates people. in that sense i want cases to be more factually specific and change when it changes in relative ways. president is very important in
my understanding of what judges are supposed to do. but i would like to see them understand those precedents in a more particular way. >> a member of our audience says she is totally befuddled and horrified at the supreme court's holding in citizens united. do you think eventually it will be overturned? >> i have no idea. but this is what i will say about citizens united and i will try to model but i am arguing in the book. there are elements of citizens united that i can get behind. is not with the court says. it describes in very simplest of terms. but i think the ideological nonprofit that wants to put
out a movie about a political candidate during an election the person is running should be able to do that, generally speaking. the difference between general treasury funds and political action committee then we can see how burden some that actually is. i think citizens united has a claim. i don't think we should extrapolate all corporations were all circumstances must be able to speak which almost verbatim that is what the court says in citizens united. i think people that agree with citizens united, they and i can have a conversation once we start asking real questions about facts as opposed to deciding whose values are
right. >> i think we are going to get the hook soon. while we have one minute remaining, are there any other? you wrote the book you probably finished the manuscript a couple of months ago. are there any revisions you would make in light of the reviews you have gotten or the discussions you have had since the book was published? >> i finish the manuscript last summer. in response to comments, anytime you write something and sit with it for a few months you we say i would
maybe phrase that differently. they are stylistic changes or things that would have made more clear. the introduction would be shorter today. i would've said more about the pandemic not to date the book too much but there is a rich set of case studies whether masking or vaccination policy, there is a little bit of discussion of rationing of ventilators in the book. i would've said more about public health as a canvas for these issues. i guess those are the changes i would make. >> this past summer with respect to the conflicts between the governor of new york for instance and where you are, and the courts , that's right.
>> religious freedom. i think some of my views and clashes between houses of worship and governors during the pandemic would horrify my progressive friends. i do think because i do think religious freedom is a real right. i do think there is some him handed policies the courts could push back on but maybe that is another day. >> thank you so much for this discussion and for your book. we will all be looking forward to see future writings from you, professor green. >> thank you thank you for taking the time to engage with the work and also the same to the audience.
>> thank you. we are deeply grateful for this conversation and speaking to our engaged audience, we appreciate you spending this time with us. we hope you will pick up jamal greene book how right went wrong you have can find a link in the chat we would love to see what upcoming virtual events the first floors open to visitors providing a peaceful and inspiring space of books and art and opportunities for contemplation. e-mail us for more information and help us spread the word by telling offender to. thank you for joining us. be well and take care.