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Summary
In his essay for the Carr Center's latest publication, Making a Movement: The History and Future of Human Rights, Archon Fung discusses the importance of protecting our human rights in the United States—and how our enjoyment of these rights depends on our jurists.
Archon Fung, Director, Ash Center for Democratic Governance and Innovation; Winthrop Laflin McCormack Professor of Citizenship and Self-Government, Harvard Kennedy School
"The UDHR was one of humanity’s milestone achievements. Its global affirmation of the preeminent importance of human dignity has guided and constrained the behavior of governments, international organizations, advocates, and, most importantly, the major and minor tyrants who would violate individuals’ rights for the sake of their own aggrandizement.
"It is common to conceive the progress of human rights as marching in tandem with democracy’s expansion—freedom against authoritarianism. But many assertions of rights diminish democracy’s scope. A right to housing, for example, requires someone to provide housing for every individual. The resources required for that provision as a matter of right are no longer available for a democratic society according to its values and priorities. A strong right to freedom of expression, as constitutionally required in the United States, is commonly understood to restrict democracy from prohibiting hateful speech (as distinct from direct threats or incitements to violence).
"Many societies rely upon courts and judges to protect rights against encroachment by democratic majorities. But when they do so, they raise what John Hart Ely called the “countermajoritarian difficulty”: how can it be that a tiny number of people (e.g. the nine members of the U.S. Supreme Court) over-rule the will and the judgment of many more (e.g. the 300 million or so people in the United States)? This is the question that those on the pro-life side of the abortion debate have asked themselves since Roe was decided in 1973. It is also the question that progressives ask themselves about the wide protection for gun rights and the reigning interpretation of the American Constitution that largely prohibits the regulation of money in politics on the ground that contributing and spending money in campaigns is a form of speech and so a protected right.
"For rights to be truly secure, they must be ingrained in our hearts as well as guarded by our jurists."
"As we see in the case of reproductive rights, court-mandated protection can undermine the legitimacy of a right, and ultimately its stability, by precipitating social and political backlash. In the summer of 2022, the U.S. Supreme Court overturned its 1973 Roe ruling in Dobbs v. Jackson Women’s Health Organization. Removing women’s constitutional right to choose abortion sparked intense debates in many states and in the country as a whole about how extensive reproductive choice should be. Since Dobbs was decided, voters in California, Vermont, Michigan, and Ohio have entrenched reproductive choice in their state constitutions. Voters in three more states used direct democracy to strengthen reproductive rights. But legislatures in many states have also restricted access.
"For rights to be truly secure, they must be ingrained in our hearts as well as guarded by our jurists. This first-best path of rights that are championed by democratic majorities rather than imposed upon them is never easily achieved and sometimes out of reach. But history shows many examples in which the advance of democracy and rights go together: women’s suffrage in 1920, the Civil Rights Act of 1964, and the Voting Rights Act of 1965. Perhaps the fundamental contribution of the UDHR was to inscribe those aspirations in the hearts of everyone around the world."