- [Narrator] Production and distribution of city club forums, an idea stream public media, are made possible by PNC and the United Black Fund of Greater Cleveland Incorporated.

(upbeat music) - Good afternoon and welcome to the City Club of Cleveland, where we are devoted to conversations of consequence that help democracy thrive.

I'm Ayesha Ball Hardaway, associate professor of law at Case Western Reserve University.

I am pleased to introduce today's authors in conversation series forum, featuring Jamal Greene, Dwight professor of law at Columbia Law School and author of How Rights Went Wrong, Why our obsession with rights is tearing America apart.

Rights are a sacred part of American identity.

We have the right to free speech, to worship, to have a free and independent press, yet America's obsession with rights has also become a source of our greatest divisions.

Lately, it seems as though discussions about rights, rarely find a middle ground.

From voter rights, gun laws, women's health and now the debate around COVID 19 safety protocols, these conversations have all grown in intensity.

Some disputes even resulting in violence and death.

Legislation on rights has made its way into State Houses and ultimately has found its way into courthouses, setting up a system of legal absolutism that distorts our law.

So how do we think about our relationship with constitutional law and how do we discuss America's original vision of rights while thinking through the challenges of the 21st century?

Professor Jamal Greene's latest book discusses this and digs into America's unhealthy relationship with rights.

He is a constitutional law expert whose scholarship focuses on the structure of legal and constitutional argument, a graduate of Harvard College and Yale Law School and a former clerk to the Honorable John Paul Stevens.

He is a sought after media commentator on the Supreme court and on constitutional law.

Professor Green's articles have appeared in the New York Times, Slate and the Los Angeles Times.

In 2019, he served as an aide to Senator Kamala Harris during the Senate confirmation hearings of Justice Brett Kavanaugh.

He currently serves as co-chair of the oversight board an independent body set up to review content moderation discussions on Facebook and Instagram.

Esteemed guests members and friends of the City Club of Cleveland, please join me in welcoming Professor Jamal Greene.

(audience applauds) - Thank you, all right, thank you for that introduction.

Thank you all for coming out to chat with me and engage.

I'm especially honored to be here at this stage of the pandemic and being able to actually speak to adults face-to-face, it's a real treat.

I want to talk to you about how both legal decision-makers and the American people do and should think about rights and think about rights adjudication under conditions of radical pluralism.

Our world is polarized, right?

We all know that, that's no secret.

What I want to persuade you all of is that one of the contributors to the polarization is how we talk about rights and how judges think about the claims of people who want their rights to be recognized.

There are 3 features or at least 3 features of how we talk about rights that I want to focus on as especially common and I think especially pernicious.

One of those features is that rights in within the American constitutional discourse are essentially absolute, they're trumps.

This is a big part of why they become such a pervasive part of our political discourse.

Whether it's free speech or guns or going without a mask, once it's recognized that I have a right, I should win, unless there's some really powerful reason why I can't win.

This means that whether I hold a right or not becomes incredibly important and that's something I'm going to return to in a bit.

A second thing about rights that we tend to believe and that our courts certainly reinforce is that rights are identified and protected by judges rather than by other institutions.

If a legislature passes a gun control measure, or the governor institutes a mask mandate, all the rights discussion is on one side of the question.

The right to bear arms, the right, not to wear a mask, there's no discussion of the political decision to protect rights, to personal security or rights to health, those are rights are pursued, not by going to court, but by passing laws.

But our discourse doesn't see those kinds of decisions in rights terms.

We only see the side that's going to court to try to get it's right protected in rights terms.

This has a consequence and that consequence is that the way we tend to talk about rights ends up being judicialized.

Rights become a question of dry, legal interpretation, questions of texts, questions of what the founders thought, questions of arcane legal precedence, rather than questions of justice or questions of moral imperative.

Whether the right to bear arms extends to concealed carry or whether all second trimester abortions may be prohibited by a state or whether race-based affirmative action is permitted at public Universities should not be questions of what Madison believed and are not fairly answered by the text of the US constitution.

If we pretend that they are answered by those kinds of texts, that removes non-lawyers from the constitutional conversation, then relatedly, when rights questions are judicialized, they're understood as questions that have definitive answers rather than answers that are naturally subject to negotiation, naturally subject to compromise or mediation.

This, although political questions, should be the subject of politics, which is characterized by negotiation, by mediation, by compromise.

a third feature of our rights discourse that I think contributes to its polarizing character, is that we speak about rights as if they are scarce, as if they are precious.

We recognize implicitly that we can't all have rights to everything, right?

Because they'll come into conflict with each other.

And so we conclude that it must therefore be the case that only some of those precious values and commitments, but not others get to be called rights.

And of course, we then fight about those things.

The problem is that the reason we disagree so vehemently about the rights that we have is not because some of us believe in rights and others of us don't, it's not that some of us are right about the rights that we have and other others of us are wrong.

They've been misunderstood Madison or something like that.

It's not that some of us are angels and others of us are devils.

We disagree vehemently about the rights that we have because we are human beings and we are all different from one another.

We have different commitments, we have different values, we have different experiences that shape our beliefs, we have different experiences and backgrounds, we're diverse, we're diverse, and so too are the things that we find ourselves committed to.

In that kind of pluralistic environment, saying that only some of those values and commitments count as far as the constitution is concerned, necessarily sets person against person and community against community.

Now, how did we get here?

We often talk about our kind of highly individualized, highly judicialized, almost absolutest approach to rights or frame for rights as if this way of thinking is some kind of gift from the founders, right?

We tell something like the following story, we have a bill of rights in the constitution.

The bill of rights sets out a code of rights that are particularly in need of protection.

When we get a rights dispute, right?

The task is to figure out which of those rights is in the code, right?

Which of those rights is engaged in that particular conflict.

If those rights are there, then we protect those rights robustly, if they're not believe it to democratic politics, right?

The reason they're listed there in the constitution, right?

Is because they're meant to be taken out of the political process.

And so any kind of balancing, any kind of negotiation or reconciliation or mediation, reintroduces majoritarian politics, right?

Which defeats the purpose of rights.

There's something like that story is a fairly common story within American constitutional discourse.

Now this might or might not be an attractive way to think about rights.

As I'll get to, I think it's an unattractive way to think about rights.

But in any event, it's wrong to associate that way of thinking about rights with the founders.

The founders believed very strongly in rights, but they did not believe very strongly in judicially enforced individual rights that are anything close to absolute.

Instead when the bill of rights speaks about juries, which it speaks about in either implicitly or explicitly in every single provision of the bill of rights, what it's seeking to protect is not some individuals right against their community.

What they're seeking to protect is the very localized political institutions that are needed to work out what people's rights should be.

The thing that they were trying to guard zealously, against interference and that's interference from the federal government, was the right to live in a self-governing community.

That community acting through its local legislatures and councils, acting through its juries, acting through its churches, acting through its family units, acting through its militia would determine the meets and bounds of individual rights and indeed protect them from outsiders, including federal judges who are the subject of protection in part of the bill of rights.

Embedded within the bill of rights is a social, primarily majoritarian understanding of rights.

Not the liberal, almost libertarian version that Americans too reflexively associate with the framers today.

Now there are lots of problems with thinking about rights, especially in the 18th and 19th century in that way, that social majoritarian way.

Most prominently, the self-governing communities that we're talking about, that were at the heart of the bill of rights were exclusive communities.

They gave political power only to white men.

Now this obviously doesn't work in a truly pluralistic society.

Many of the people whose rights were most sorely in need of protection, were not empowered to participate in that self-government.

Much of the rest of American history and here I'm really simplifying, but must much of the rest of American history has been devoted to reconciling that democratic vision of rights that is expressed through the bill of rights with genuine pluralism.

But we're still struggling with that reconciliation between the local democracy that was recognizing the founding and genuine pluralism.

We recognize that certain kinds of violations, Jim Crow, McCarthyism, have to be viewed with utmost seriousness.

We also, at the same time, recognize that certain kinds of laws, let's say laws that regulate wages or the conditions of workers, should not be overturned casually by judges.

Those of you in the room who are lawyers will recognize this as anti-Lochnerism.

Now what we don't have a good way of, good means of dealing with is the very wide range of claims that kind of fall in between those things, in between the kind of pathological government that Jim Crow represented.

And ordinary governance that we shouldn't think engages anyone's rights in any serious way.

In the 1960s and 1970s, there's kind of a rights explosion.

People are making claims about rights in lots of different domains that were not really contemplated by very many people before then.

This is the sexual revolution, this is reproductive freedom claims, this is gender equality claims, this is affirmative action claims, claims that at law disproportionately, but unintentionally affects say a particular racial group, claims in the criminal procedure space like Miranda rights or the rights to a government lawyer or the right to not have exculpatory evidence concealed by the prosecution, free speech claims that look very different from McCarthyism, like free speech claims on a campus or free speech claims involving pornography or obscenity, provocative activism, right?

Like the right to burn your draft cart.

Government support for religious schools, government sending the public school bus to pick up students to go to a religious institution, spending taxpayer money in that way, claims of people who are asking for more welfare benefits because they think that their families deserve it, claims for certain kinds of government benefits like tenure at a public university, claims that I shouldn't have my driver's license suspended except for good reason, or shouldn't have my gas shut off by the public utility.

These are all areas where the government is not doing anything so severe as Jim Crow, the government's not pathological when it decides, we don't really want you to burn your draft card, right?

The government is pursuing some objective.

It implicates people's rights in some way, not with the same gravity or seriousness as McCarthyism, but with some gravity, with some seriousness.

So we fight about these things, we don't really know how to put them into the category of, we shouldn't care at all about what the government's doing, or we should really not trust the government at all.

We don't know which of those categories to put them in, so we've we fight about those things, so we fight about it in binary ways.

So conservatives resort to originalism or text or history as a strategy for getting the true constitutional rights, which are the really true ones, so that they can exclude rights to abortion or rights to same-sex marriage, can include rights to commercial speech or rights to guns or lately, rights to religious exemption from anti-discrimination laws.

Progressives resort to a variety of theories so that they can get at the true constitutional rights.

They can exclude the ones that conservatives want to include and include the ones that conservatives want to, exclude the ones that conservatives want to include.

Right?

So everyone ends up being a little bit, rightist, right?

Discriminating against the rights that they don't like.

In this way, constitutional rights, polarization, aligns political polarization over many of the very same issues, right?

We sit here in the wake of the Supreme Court's non-decision over the Texas abortion statute, but it aligns with political polarization only indirectly by translating political debate, into debate over what the framers really thought, or, again, for you lawyers, whether strict scrutiny or intermediate scrutiny applies.

Legal abstractions, lawyers then come to believe that those legal abstractions are what rights conflicts are about.

That those abstract legalistic questions get at the legally relevant facts have a right to dispute.

This way of thinking leads to a number of, I think, quite serious problems for our political discourse.

One is that it decouples the vital link between rights and justice.

Think about a famous for lawyers school equity case out of San Antonio, where the question was, so there are 2 neighborhoods in San Antonio in the same school district, public school funding, public funding for these schools depends on the property tax base in these neighborhoods.

So the poor neighborhood gets very little funding, the rich neighborhood gets a lot and the schools are demonstrably different.

And obviously the poor neighborhood has demonstrably poor schools because they're funded at something like 15 times less of a per pupil funding.

And they bring a claim to the parents at the poorer school, bring a claim to the Supreme Court, they say, this is unequal and these are public schools, so there's no reason for them to be unequal in this way.

So instead of asking a set of questions that are geared at getting at the justice that underlies a constitutional equality norm, why does this inequality exist?

What's it trying to achieve or accomplish?

What's the magnitude of the burden on students in poor neighborhoods?

Can we reduce that burden in ways that nonetheless achieve whatever the government's trying to accomplish?

Instead of asking those kinds of questions, which are questions about facts in the world, questions about the justice of what the government is doing, the court instead asks, is there a right to equal public schools?

That's an abstract legal question.

And they conclude, 5 to 4, that there is no such right.

Because if there was, that would mean there must also be a right to other kinds of equality, equal rights to food, rights to equal police funding, the court says that's ridiculous.

And so there must be no such right.

We look at legal categories instead of looking at real-world facts.

Distorting the relationship between rights and justice that the constitutional rights at issue are meant to promote, right?

So the court never says, this is unequal and therefore unfair, right?

It asks an abstract legal question.

The second problem with understanding rights in the way that I'm criticizing is that it prevents us from acknowledging that genuine conflicts of rights between bonafide rights claims can co-exist, right?

And therefore have to be resolved at retail rather than being resolved at wholesale.

We see this in the abortion area, very hot topic this week.

in Roe vs. Wade, Justice Blackman, who writes the majority opinion concludes without any analysis really, or very little analysis that recognizing fetal rights would have to mean that abortion restrictions are always permitted.

The Roe Court's failure to recognize that fetal rights could have some possible constitutional dimension had an immediate impact on the anti-abortion movement.

In fact, it splits the movement in 2, within a couple of years of Roe vs Wade being decided with the more radical camp vanquishing the moderates, again, within a couple of years.

That split helped to make political compromise around abortion in the 1970s, nearly impossible.

Even though intense moral conflict, it's exactly what politics rather than adjudication is meant to address.

A third problem is a related one.

The kind of binary way that we tend to think about rights means that every dispute is about whether you're in the category of rights holder or in the category of non rights holder.

So in the pandemic, it's about whether there's a right to hold a religious service or to not wear a mask or to not get vaccinated on one hand or if there is no such right on the other, that's the choices that we have.

Only one camp gets to win because these are irreconcilable, name your favorite constitutional conflict.

Is it whether it's voting rights, whether it's affirmative action, whether it's a gun control, wide variety of conflicts related to free speech and you see similar dynamics appear.

Our arguments about constitutional rights, again, recreate our political arguments.

But they do so while claiming the certainty that is associated with legal interpretation.

They studiously avoid the language of deliberation, the language of negotiation, the language of mediation that characterizes politics in its ideal form.

I won't say that much more, but, at least not until questions, but it will come as no surprise, right?

That I think that this is not a healthy way to go about resolving disputes about constitutional rights and the thought that I want to kind of leave you with is this, the reason our constitutional rights disputes align with our political disputes is not because judges are activists, it's because rights disputes are indisputably political disputes.

There's no shame in saying that, right?

There's no shame in saying that when you have a constitution, that instead of doing what many foreign constitutions do, which is list rights at some length, but instead, write the things that we tend to argue about are what does equal mean?

What does it mean to deprive someone of Liberty without due process of law?

What does it mean to abridge the freedom of speech, which we do all the time?

Those of you who are lawyers have seen non-compete clauses and that sort of thing, right?

We breech freedom of speech all the time, so what does it mean, how do we negotiate this?

These are questions that will divide people who have good faith disagreements about politics.

And we can pretend that the constitution answers them in some concrete way.

That's a strategy, that's a strategy for giving some degree of certainty to our who our judicial system, but it's a strategy that comes with very significant costs.

And in a truly pluralistic society, those costs include excluding certain communities, including others often in ways that are systematic and often in ways that are arbitrary.

So rights disputes are indisputably political disputes.

That doesn't mean that judges should not be involved in those disputes.

It does mean that the way in which judges are involved should not be to decide which rights we have and which rights we don't have.

The way that judges should be involved should be to set the boundaries of political conversation.

And I can talk more about exactly what that means, but maybe I'll leave that for questions and answers.

So thank you and I'll invite you all to ask questions and those of you in the listening audience as well, I look forward to engaging.

(audience applauds) - Today at the City Club, we're listening to a forum featuring Jamal Greene, Dwight professor of law at Columbia Law School and author of How Rights Went Wrong, Why our obsession with rights is tearing America apart.

We're about to begin the audience Q&A.

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May we have the first question, please?

- Can you give me one example of how immigrant rights fits into what you have been talking about today?

- So great, so immigrant rights implicates one of the key questions that we always have to ask when we talk about rights, which are, who is a member of the rights bearing community?

And that's of course been a question that's been quite divisive over the course of US history.

What I'll say is and as I say this more general thing, I'll try to think of an example, but what I'll say more generally is that we have a certain constitution, right?

If we had a different kind of constitution, I'd be making different claims about how to think about law under that constitution, our constitution tends to be short, it tends to be quite quite non-specific when it comes to rights, you can think about other ways of arranging a constitution or designing constitution.

But one other interesting feature of the US constitution is that it is not a constitution that, at least by its terms, grants rights only to certain subsets of the community.

So the rights that we tend to talk about most often rights to equal protection, rights to due process, both of those constitutional provisions applies to persons, not to citizens, right?

Not to only certain kinds of persons, right?

We don't actually divide our rights in ways that in many other countries rights are divided in that way.

We also have a birthright citizenship in the US which many other countries do not have, right?

So we have a constitution that's pretty well suited to, when you see a conflict that involves the rights of immigrant populations, to just thinking about those particular government objectives and those particular burdens quite directly, right?

We don't need to filter it through some categorical limitation of rights to only people who hold citizenship because our constitution doesn't look that way.

So what's an example, there's a well-known case, well, well-known among constitutional lawyers and immigration lawyers called Plyler vs DOE, which is a very interesting case.

This is a case where the state of, from 19, Supreme court decision was in 1982, if I'm not mistaken, and the issue was the State of Texas had said that it's public schools would be limited, at least the free public schools would be limited to people who were not undocumented, right?

So undocumented children could still go to public school, but they could not, they have to pay for it, whereas others didn't have to pay for it.

And this is obviously trying to discourage what Texas viewed as illegal immigration, trying to disfavor the children within certain populations and certain communities.

This gets to the Supreme Court, and there's actually a, when you look at the way that courts up until the 1980s and really since then, Plyler versus DOE is an unusual case.

The way they look at this is to say, well, are these people who we should understand as rights bearers?

And, and if not, then there's not really that much we can say about Texas, this particular Texas law.

Justice Brennan writes a majority opinion, fight for a majority opinion in which he says, yeah, that's how we usually think about things.

Yeah, people who are undocumented can be disfavored in all kinds of ways, but these are children we're talking about.

They don't bear any moral responsibility for their circumstances.

Denying them the ability to go to public school is going to lead them to a life of despair, a life that has already started off not very well is just going to continue to be not very good.

And so we have to think about the way, the motivation of the state and how much rope we give the state, differently in this context.

That kind of distinction, a distinction that says, let's talk, let's have real talk here, right, instead of thinking about the category of illegal.

But think about the people we're talking about, the burdens associated with those people, their degree of responsibility for the situation they're in, that's quite consistent with the way I would talk about, I'd like to think about rights in the book.

It's not very consistent with how the Supreme Court usually thinks about rights and Plyler versus DOE is an outlier, it's an unusual case.

And in fact, immigrants rights advocates are so scared that it's going to be overruled, that they try not to rely on it when they don't have to.

So that'd be one example of what I'm talking about.

- Mr. Greene, you mentioned how, in hearing you speak throughout the day, the mid day, the, the lunch hour, I tend to think so much of this issue of reiteration and alignment between judicial rights and constitutional rights arguments and political rights may be perhaps because of our nature as a common law country and that what you mentioned, that our constitution is so broadly open to interpretation, where we have arguments about what is the word equal and in a civil law country with thousands of pages of code, there may be much more already in black letter.

I wonder if you could carry on with what you were saying in your discussion about how judges then can be used for as boundary setters, just to help us try to think about, I mean, the Justice Brennan example was perfect, but to help us think about how we can ameliorate this issue and take rights back into political discourse without having them become such a have and have-not sharp black and white line judicially, thank you.

- Sure, so how can judges be boundary setters?

I'll give, I'll try to give, maybe I'll try to give 3 quick examples.

2 of which I've already talked about briefly, but not in great detail and one that I haven't talked about.

So one is just think about the San Antonio schools case that I mentioned of these unequal unequal school funding cases.

The way in which the court thought about that issue is we the court are in charge with rights identification and development.

And so we the court would be the ones who have to decide, well, how much equality is necessary and this isn't really what courts do and so therefore, when we're talking about services that are given to people, rather than things that are taken away from people, that this is not something that courts can really be involved in, I would, I would question that.

So how do you boundary set, well, look at these schools that were at issue in the San Antonio case.

Schools had different books, they had different teachers, they had different, some of them had AC and some of them didn't, this is in San Antonio?

One of them had a big extermination problem, different facilities, broken windows, where there's a lot of, there's a lot of money on the table here when it comes to equality.

So if a court were to say, we think that you have an obligation to, you can't equalize society, right?

Courts can't do that, the State can't really do that, but you have an obligation to provide a certain basic level of equivalent education between schools in different neighborhoods within the same school district.

So if one school has AC and the other doesn't, we the court can do something about that.

We can tell you to put AC in it.

We can't in some abstract sense, say here's the line between equality and inequality.

Of course we can't, because this is all about resource constraints, it's all about these ideological differences about how to structure local education and how that relates to local politics, these are difficult questions.

But there's low-hanging fruit here, so there are ways of setting boundaries.

The other second example I'll refer to is the abortion rights area.

Obviously complicated, obviously controversial, obviously involves people with very different views and very different values and commitments, but the book gets much more deeply into the comparison between how West Germany and now Germany has approached abortion rights versus how they're approached in the US.

And one of the key moves that the German court makes is to say, look, the State has an obligation to pursue certain kinds of values.

Those actually include not just equality values, not just autonomy values for women, but also indeed values relating to life and the protection of life.

All of those are values the state has to pursue, but it has to do so in some way that's coherent, in some way that makes sense.

And what the political, it's a long story, but where the court ends up guiding the political conversation around abortion rights is around questions of what does it mean to actually give someone autonomy over their reproductive choices, right?

That's not just a question of, do you criminalize the act of abortion or not?

It's a question of, well, what kind of prenatal and postnatal care do people have?

What kind of employment guarantees do people have?

Is there some way in which people are going to be supported if they have children versus not supported if they have children?

And the court basically allows and there's legitimate, genuine political compromise around questions of, well, look, if we, we on the right would like to protect life in a certain way.

So what if we were to say, well, yes, you can have abortions in the first trimester when in the second trimester, it has to be indicated in some way.

So there has to be some reason that you give, whether it's related to disability or related to some other indicated reason or health reason, medical reason.

And then if you give us that, then we'll say that there have to be certain kinds of guarantees on the backside so that people have genuine choices about if they have enough time to make that choice and it's a real choice, as opposed to having no possibility of support while raising children.

Now, there are people who would disagree with that, with landing in that place.

But yeah, if you ask people even in the United States, what do you think about that?

Well, okay, maybe, maybe when we, when we sort of drop the conversation about whether someone has rights or doesn't have rights and think, well, there's a lot of rights and values that surround this issue and that means that it should be talked about politically, but in ways that set the bounds of that political conversation.

That's what happened in Germany and in the 1970s, and again, this is a complicated story, so I don't want to oversimplify it, but in the 1970s, abortion rights were more controversial in Germany than they are here.

And now it's not even, there's no comparison.

And that's through a politically negotiated settlement of the issue in the early 1990s.

Third example, I'll just quickly give, is around disability.

In the book I talk about a Canadian example.

The US does not constitutionally protect the rights of the disabled, right?

To any kind of accommodation.

This is of a piece with what I've just said about the San Antonio schools is that, it was this positive rights, so we can't draw lines here, we don't know what category to put this in.

Why protect people with disabilities, but not protect people who are obese or people who have drug addiction or people who are really old, or people who are really tall, we can't draw this.

This is not me talking, I'm literally telling you what the court has said and so therefore this must not be something we can protect.

So this fear about the inability to draw lines affects the way the court approaches right in the first place, even when it has nothing to do with justice or injustice.

So it's very easy to come up with examples of people with disabilities being treated in horribly unjust ways.

That should obviously trigger our constitutional antenna, but doesn't because the court thinks it can't define the category in the right way.

There's a Canadian case, really interesting Canadian case around sign language interpreters in hospitals.

There's a case out of British Columbia where there's a private service that's providing sign language interpretation to public hospitals.

They go out of business basically and so there's no sign language interpretation.

So they Sue the province and say, you've got to provide this service to us.

And the kinds of questions the Canadian court asks, and I don't want to valorize the Canadian court too much, or the German court or, every court has its problems, right?

But the kinds of questions that the court asks are not questions of, is there a right to sign language interpretation?

Or is there a, do you have a right to disability accommodation?

It's well, how much does this cost?

How burdensome is this?

Now someone who can't, who is hearing impaired and can't communicate with their doctor, how do we think about that kind of burden?

Does that seem like a very serious burden?

And it comes out in the litigation that this, the providing sign language interpreters for all the hospitals in British Columbia is going to cost like $400,000 or something.

That this is a rounding error in the budget of the, and so the court says, what are we doing here?

And that's kind of it.

Now, there are other disability cases that come out another way and where they say, well, you articulated perfectly legitimate government motives, it's too expensive, you've told us it's too expensive, there's no alternatives, yeah, sometimes people have to have to suffer the consequences of living in a society that has limited resources, but sometimes they don't.

And to courts, that's the role for courts to play.

And the last piece of this that I'll just mention is that what the court does, and this gets at how do you do it?

What the court does, it doesn't say, here's exactly what you need to do.

You go to this, here's the company that provides sign language interpretation, we're going to order you to do this.

It just says, look, there's an unmet need here, you haven't given us a very good reason why this need is not met, period.

Come back to us in an year, I don't remember if it's exactly a year, come back to us in a year and tell us what you've done about this.

Because it's your job, not ours, right?

We're a court, that's your job, not ours, but this is a remedial posture that happens a lot in other countries but doesn't happen very much here which is called a suspension of invalidity.

Where the court says, this is unconstitutional but we're not going to stop you from acting yet,, we're going to work with you because we're part of the same government.

We're part of the same enterprise.

We're all trying to engage in effective constitutional governance.

And so we'll tell you when we think there's a problem, and you tell us how you're going to solve it, rather than this kind of adversarial posture that we often associate with constitutional litigation and government acts.

Government is doing something wrong and so we're going to invalidate it.

But what's, if you're talking about Jim Crow, when the government is pathological, yeah, yeah, that's adversarial and it should be.

But when you're talking about governments trying to provide health services to people and have resource constraints, let's work together because that's what functional governments do.

Right, so that's just a few examples, but I could give more.

- Our next question question is a text question.

The American constitution was written at a time when society was extremely exclusive and did not account for the rights of every citizen.

Why is it still upheld as the document to be referenced when it comes to the rights of every citizen?

- So why should the constitution be a reference point given its origins and given its age?

Well, I think that if one were to interpret the constitution in a way that I think it doesn't have to be interpreted, but if one were to interpret it in ways that froze in time, the rights that were understood to be embedded within the constitution, either in the late 18th century or indeed in the late 19th century, then we would be very, we'd be wise to question whether we should still adhere to this document.

We often think of the constitution as, without much reflection, as the highest moral duty is to abide by the constitution.

That's not obvious at all, right?

That depends on the constitution being one that we can tolerate.

An intolerable constitution, right?

This is democracy, this is what the framers themselves would have said certainly, is that an intolerable constitution is not one that we must endure.

What allows the constitution to be one that we think of as deserving of our devotion, is in fact its adaptability to our present circumstances, to our moral and political understandings of today.

Now again, it doesn't have to be interpreted that way, I think to the extent that it's not, it doesn't deserve our allegiance.

It's our constitution, right?

It's not the framers constitution, it's not the lawyer's constitution, it's not the Supreme court's constitution or Congress constitution, it's all of our constitution, which means that it has to be flexible because we're different from each other, right?

The way in which, I like to, one of my favorite scholars is Robert Cover, who isn't well known outside of legal academy, but is, was a brilliant scholar.

He has a well known book called Justice Accused, which is about what the obligations of judges who were abolitionists judges was to the constitution at a time when the constitution could quite reasonably be understood as being a pro-slavery constitution and kind of role morality for those judges.

But he has another famous article called Nomos and Narrative, which is about the ways in which the law is understood in different ways within different communities and the obligation of legal decision-makers to keep those different visions of law alive.

That doesn't mean that everyone has to win, it doesn't mean that judges don't make decisions, but that they should make decisions in ways that sustain a constitutional community.

And the way that you do that is you have to leave things a little bit open, right?

So if you tell me there's a community you live in, you have a set of values, commitments, that community has a certain set of norms.

And what we're going to tell you is that the constitution must always and forever be interpreted in a way that marginalizes your community, that's when I start to check out from the constitutional conversation.

If the judge says, instead, well, look, you live in a society, you're going to lose this case, but the reason you're going to lose this case, it's not because you and your community must lose for all time, the reason you're gonna lose this case is look at the facts of this case.

Maybe if the facts were a little bit different, you might have a little bit more leverage into this decision, right?

Maybe if the facts were a little bit different, you might actually be able to, we can say enough about your particular needs and your particular values to give you political leverage so that you don't even need to get to court.

We can have a, if a law is passed, and it has a disparate impact on some particular racial community and the court says, well, sometimes we're going to recognize those claims, but not always.

Well now, when you have politics about that decision, you can say, look, nobody wants to go to court, let's talk about this, right?

That's how you work through political disagreement, right?

Not by saying, well, no, we just don't care if it has a disparate impact on this particular racial community.

Well, if you say that, then you know what's going to happen.

No one's going to care.

Right?

So, just to answer the listener's question, yeah, it depends, right?

How much devotion the constitution deserves depends on what, on how we understand the constitution.

I think the constitution is sufficiently flexible that it can be a constitution for all of us, but if it isn't, that that's not necessarily the highest value.

- First of all, I'd like to thank you for a very thought provoking presentation and I'm not a lawyer so I'm not used to having these thoughts provoked, but I'm willing.

My question deals with the recent Texas abortion decision or really in a sense, a non-decision by the Supreme court with their, I believe the term is shadow decision or something of that sort.

If I understand you correct, that the role of the judiciary is to frame the potential political discourse then in providing a shadow decision, has the Supreme Court effectively denied or abdicated its own responsibilities to the public in this decision discourse?

Thank you.

- Thank you and thank you for the question and thank you for coming and engaging not withstanding not being a lawyer, the book is not written just for lawyers, right?

So I welcome non lawyers to engage with these issues.

The Texas law, and I don't know how closely people have followed what's happening, but Texas passed the law that essentially deputizes private citizens to engage in civil litigation to Sue their neighbors when they violate what the Texas law, the ways in which the Texas law restricts abortions.

And it restricts, essentially restricts abortions to before 6 weeks.

6 weeks is a point at which many women don't know whether they're pregnant or not, haven't learned that they're pregnant.

So just to just on the substantive issue for the moment and I'll get into the shadow docket question, but this, on the substantive issue, this is exactly the kind of issue where even if people disagree about abortion rights, how far they should go, and of course we do disagree about those things, The ways in which if you think fetal life is of value and you also think women's autonomy is of value, which I think it's, which I think a pluralistic constitutional system should be able to accommodate those values at the same time, then a law that says, that basically prevents women from making the decision or not because of the timing, disregards women's autonomy entirely.

So that's not a good faith effort to balance values if one doesn't know whether one is pregnant or not.

Now on the shadow docket issue, this is more complicated, the Texas law is designed in a way that makes it very difficult to Sue, to stop enforcement of the law until the law is actually invoked, so until someone actually actually sues their neighbor.

At that point, then you can try to litigate about it, try to enjoin that from happening, right?

But before that happens, it's not really clear who to sue because you don't know which of the roaming spies is going to be the one to sue you.

So it it's designed to be really difficult to litigate.

That's essentially, without getting too deep into it, that's essentially the problem the Supreme Court's confronting, which is, even if the court thinks that this law is unconstitutional, which we don't know yet, we don't know if the court thinks that, it's clearly in violation of current Supreme Court law, but the Supreme court might change that.

The posture of the case makes it very kind of tricky to know exactly how to intervene or when to intervene, but the general issue of the shadow docket, the court deciding cases without full briefing, without full argument without fully reasoned opinions is I think a very serious problem, I think it's a serious problem on the account of the book as well, because the book relies on the court telling us things about why it's reached this decision and how and what the scope and limits are.

And when you do that without full consideration, then you're not really acting as a court that functions within a democratic society.

(audience applauds) - Today at The City Club, we have been listening to a forum part of our authors in conversation series, featuring Jamal Greene.

Dwight professor of law at Columbia Law School and author of How Rights Went Wrong, Why our obsession with rights is tearing America apart.

You can purchase tickets and learn more about our other forums by visiting cityclub.org.

And that brings us to the end of today's forum.

Thank you, professor Jamal Greene and thank you members and friends of The City Club.

This forum is now adjourned.

- [Narrator] For information on upcoming speakers or for podcasts of The City Club, go to cityclub.org.

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