Professor of Law Jamal Greene thinks we are living through an explosion of claims of rights, which he labels "rightsism." Rights claiming has become, he writes, a vital national pastime. He argues that the Founding Fathers did not intend for there to be such a flood, and that they did not intend for the judiciary to become the arbiter of what is a right and what is not. They intended for state and local institutions to protect the few "inalienable" rights that were then recognized. But slavery and Jim Crow laws upended that vision and introduced the concept of absolute rights as a way of protecting minorities from the tyranny of the majority. Greene believes that there are no absolute rights and that actual non-absolute rights require negotiation and mediation to resolve. Greene reinterprets the meaning of the first ten amendments to the Constitution, reviews key court cases, and critiques judge-made rights, which decree who holds rights rather than asking what holding a right means. Judges play a zero-sum game, dividing people into those who have rights and those who do not. Greene examines the effect of this concept of rights in the areas of race, gender, disability, abortion, affirmative action, and campus speech. By pretending that one right or another is or is not of constitutional significance,"rightsism" avoids the natural state of conflicting rights and the need to mediate between them.
The Ongoing Problem with Rights in the United States
