In a new Federalist Society Review article, Which Rights Are We Mediating? Anthony Sanders, Director of the Institute for Justice’s Center for Judicial Engagement, reviews a new book by Columbia law professor and constitutional law scholar Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights is Tearing America Apart. In his new book, Professor Greene questions American courts’ current treatment of individual rights and proposes a new way forward. He calls this new way “rights mediation.” Rather than treat a fundamental right as a nearly insurmountable trump card, as American courts do today, our courts should take account of all the rights in play in any given case and mediate between them.
Sanders reviews the book with a focus on “where the book leaves [him] either unconvinced or inspired.” He is “unconvinced by Greene’s disregard for the negative/positive rights distinction of the classical liberal tradition” but he is “inspired by the possibilities of a ‘Justice Harlan’ approach to economic liberties.”
Sanders begins with an overview of Professor Greene’s book. He acknowledges the merits but also critiques Greene’s view of founding-era rights. He also rejects Greene’s placement of Lochner v. New York in the “anticanon” but accepts his view that, in that case, “Holmes is the bad guy” with hope in the idea that “Harlan is the hero.” And Sanders agrees with Greene that the crux of the problem with judicial protection of rights today is the (in)famous Footnote Four in United States v. Carolene Products Co., which bifurcated rights into two camps: (1) very protected, or (2) almost not protected at all.
But Sanders takes issue with Greene’s view of rights. Greene treats what is traditionally seen as a government interest—protecting the health and safety of its citizens—as a right comparable with classic rights—such as free speech, freedom of religion, and due process. Sanders thinks conservatives and libertarians will part with Greene here “because he brands so many more things constitutional rights than does the traditional Lockean view without much justification for the tectonic shift.” In America, unenumerated rights protected by courts have always been controversial but they have almost always been negative rights (an individual’s claim against the government) rather than positive rights (an individual’s claim for the government to provide something). Greene’s vision of rights would dramatically expand positive rights but the source of courts’ authority to make this expansion is unclear.
The culmination of Sanders’s review is his agreement with Greene in praising Justice John Marshall Harlan’s dissenting opinion in Lochner. Under this opinion, Sanders argues, rights like the right to earn an honest living and contract would fare much better than under the rational-basis test in today’s courts. That is because Harlan’s judicial review is much closer to Justice Rufus Peckham’s majority opinion in Lochner than Justice Oliver Wendell Holmes’s dissent. But Holmes’s dissent, with is dichotomy between fundamental and non-fundamental rights, has carried the day.
Sanders senses the opportunity for a “Grand Bargain in Greene’s endorsement of Harlan’s approach.” He argues that Harlan’s balancing approach—and Greene’s view of that approach as a form of rights mediation—could provide greater protection for rights too often disregarded by the courts today, like property rights and economic freedoms. A return to Justice Harlan’s approach to judicial review would be a welcome development, whether from Greene’s liberal vantage point or Sanders’s libertarian position.
Ultimately, we should use the tools we have—our law—to mediate rights claims, rather than turn to a new philosophy of rights and rights mediation. Justice Harlan’s Lochner dissent is lauded because it performs a version of this original method of judicial review. From Chief Justice John Marshall to the present, judicial review has been conducted through a means-ends analysis of the government action being challenged—the power exercised and its purpose. That analysis should take greater account of the facts of each case being examined—the judge’s job after all is to apply law to facts. Importantly, it is the alleged infringement of an individual right that often triggers this judicial review. Although we can debate the strength and content of the right in play, if this is an accurate depiction of American judicial review, then our law already provides a mediation of rights. Courts correctly performing this analysis already examine the alleged right infringed and assess the government’s power to act in that context. Perhaps the solution to the problem Greene identifies is for courts to recognize the tools already provided them by the original law and to pick them back up.
Read Sanders' review of Professor Greene’s new book here at the Federalist Society Review.