In effect, Meares and Kahan propose that the political process within the burdened community should determine the contours of constitutional criminal procedure rights. Meares and Kahan talk about rights in a bold and refreshing way. For Meares and Kahan, rights are contextual-they depend on social and political conditions. They are also instrumental. They can be deployed to empower certain groups.
Rights are flexible, even unpredictable-they change with different political climates.
Finally, rights are political. There is, ultimately, no guarantee that the burdened community will not dispense with individual rights entirely. After all, mass building searches do away with a swath of traditional constitutional criminal procedure. As a result, their essay is likely to provoke passionate resistance from liberals, whether rights foundationalists or dual democrats-and especially from civil libertarians. In this regard, I support their endeavor.