Jamal Greene: evaluation

Transcript context

…To turn to your book, How Rights Went Wrong by Jamal Greene. The same arguments can be found in your articles. You argue that the American conception of rights is quite different from that, say, found in Western Europe or, indeed, other parts of the world. What is it, in your opinion, that is upstream of that American difference? Is it that we’re a more ideological nation, and thus, we put a lot more emphasis on a smaller number of rights? What’s the cultural determinant of the difference that you’re pinpointing? Well, there are multiple cultural determinants. I think our experience with racists maybe — if I had to point to a single one, it would be that insofar as we associate rights with a particular history of race-based pathology, that people have rights in the same way that African Americans have rights to not be forced to go to a segregated school. That association of rights with pathological governance, I think, leads to a certain kind of binary understanding of what rights can do. In my view, rights, in a constitutional sense, can arise in lots of situations, whether the government’s acting well or not acting well, because rights, I think, are just a byproduct of pluralism. Other countries don’t have the same historical baggage that we do when it comes to race. On the one hand, we think that rights should be understood in really strong terms. And on the other hand, there are a bunch of economic rights that, within our legal culture, are understood as being very, very weak. You have this kind of binary, where you’re choosing whether you’re talking about something very weak or something very strong, instead of talking about rights much more contextually. There seems to be plenty of American exceptionalism that extends far beyond race or doesn’t boil down to race, or it pops up in issues that are quite non-racial or appear to be non-racial. Race might be one factor, but doesn’t it stem from something very fundamental in the nature of American society? We’re more literal. We hold ideas more strongly. We’re more suspicious of state power. All those other non-racial upstream factors — is it that you want to change and reform those? Or you want to change our notion of rights but keep all the upstream factors in place?…

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