"But it is rash, especially in a big and insubordinate country like this one, to imagine that appeals to reasonableness and popularity will always serve as a more reliable guide to justice than the language of the Constitution. Yes, the N.R.A. used the language of rights to defeat laws that many people say they support.... But this is how rights often work: they protect things that most people think don’t deserve protection at all."
From "From Guns to Gay Marriage, How Did Rights Take Over Politics? The N.R.A., the Supreme Court, and the forces driving the country’s most intractable legal debates" by Kelefa Sanneh (in The New Yorker).
Of course rights are experienced as "a political obstacle." That's exactly the idea. When shouldn't the majority win.
Sanneh is mostly bouncing off of a book:
Jamal Greene, a legal scholar at Columbia, thinks that all this talk about rights has gone too far. In a provocative new book, “How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart” (Houghton Mifflin Harcourt), he pushes back against what he calls “rightsism,” which in his view makes judges too powerful, and makes it harder for the rest of us to find reasonable solutions to our political problems....
Greene’s approach would oblige both liberals and conservatives to accept compromises that they might find abhorrent. He notes that when the Court found that the right to privacy implied a right to abortion, for instance, it was “denying that a fetus could be a subject of constitutional concern.” As a result, abortion in America is largely unrestricted in theory but not always readily accessible in practice, mainly because of our endless fight over state-level restrictions. He thinks that we could learn something from Germany, where laws consider the interests both of pregnant women and of fetuses. Abortion is decriminalized there, but generally only in the first trimester of pregnancy, and seekers are required to speak with a counsellor; there are special benefits and rights available to new birth parents as well. Because there is no possibility of a court offering total vindication of the right to choice or the right to life, each side is more willing to live with the compromise. This is the sobering underlying message of Greene’s book, aimed at a wide range of advocates: you probably won’t win. The United States is a big country, full of obstreperous citizens who claim, or would like to claim, a broad array of rights that can’t all be recognized. In his view, the only way for us to live together is to guard our rights a little less jealously, resigning ourselves to a future in which we are entitled to most of what we want, but not all of it.
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