Eric Segall (Georgia State University College of Law) has posted The Battle Over Rights is the Problem but Judges are not the Solution (Constitutional Commentary, forthcoming) (15 pages) (reviewing Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart) on SSRN. Here is the abstract:
In his new book, How Rights Went Wrong, Professor Jamal Greene takes apart much of American constitutional law in a detailed and beautifully written account of how the Supreme Court's approach to rights has made us more polarized and more divided. But Professor Greene, who wants the Court to take a more detailed, fact specific, and contextual approach to rights cases is looking for answers in the wrong place. The solution to the Court's inability to provide some measure of balance to our great divides over rights is to return most of those issues to the political process where, absent clear text or history, they belong.
Here is my prior post on Professor Greene's book.
As is often true, I agree with much of what Professor Segall says — but I think we differ very substantially on what constitutes "clear text or history."
RELATED: At Dorf on Law, Professor Segall has this post on the recent "profane cheerleader" case: Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy.
Posted at 6:05 AM