Dana

A compelling read but an unconvincing thesis.

Revisado: 06-13-21

Greene writes a compelling narrative, and his thesis is provocative and important. The further one delves into the book, though, the clearer it is that that thesis has collapsed under its own weight. On the one hand, Greene seems to treat “constitutional” as synonymous with “dignifying” or “worthy.” That something be “constitutional” is thus a moral imperative. On the other hand, by treating “constitutional” interpretation as nothing more than a matter of weighing societal values, it is difficult to see the benefit of a “constitution” at all. Perhaps more pressingly, the insistence against drawing bright constitutional lines results in an argument that rests on vague prescriptions (“Courts ought to wrestle with facts!”) and question-begging, extra-textual moralisms (“It is absurd that the Constitution protects X but not Y.”) that are of little help to a court wrestling with a difficult question. We are left with “rights” that are simultaneously everything and nothing, and little real guidance in defining where those rights end and begin.

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