Additional Discussion About the U.S. Commission on Unalienable Rights

The July 8 launch of the U.S. Commission on Unalienable Rights continues to draw comments, pro and con.[1]

On July 17, 2019, Secretary Pompeo was interviewed by Hugh Hewitt, primarily about the Second U.S. Ministerial on International Religious Freedom.[2] In addition, the Secretary made the following comments related to the new U.S. Commission on Unalienable Rights:

  • “No previous administration has prepared to defend this most basic freedom – you talked about that, Hugh – absent having the capacity to believe what you want, and to act in accordance with your own conscience. All of the other things that we talk about as freedoms or rights are subservient to . . . [the freedom of religion and belief]. So very important that we advocate on behalf on this. Some 80 percent of the people in the world today live in religiously restricted environments.”
  • “[N]ations become stronger when they permit their citizens to exercise their core beliefs about who they really are. . . .[This is good for other countries] in terms of their capacity to build out their country, to grow the economy in their nation, to keep their country secure and safe. This central premise of religious freedom makes countries stronger. It doesn’t create risk. . . . [It’s in the best interest of every country] to increase the religious freedom in their country.”
  • “President Trump and the administration take this central core idea of religious liberty as a very important priority for the State Department, and indeed all of our government.”
  • “[T]he mission that I have given Professor Glendon and her colleagues [on the Unalienable rights Commission] . . . is to go back to the fundamental grounding of human rights that the founders have set forth for us, to evaluate the various components of those human rights. Which ones are central? Which of this set of rights are core to America’s success, and indeed, more broadly, the success in the world?”
  • “[W]hen everything is a right, these most fundamental, foundational rights are neglected . . . and will misdirect American policy. We won’t be focused on those things that are most central to American security around the world.”
  • The Commission has been asked “to go back and reground. . . . [The] State Department hasn’t done this in decades and decades, and I’m optimistic that they’ll come to a conclusion that will be important for the United States as we move forward, thinking about how to frame how the United States speaks about human rights and fundamental rights all around the world.”
  • “[T]he fear in many of these countries is if they grant these set of rights, that they will lose political control. But in fact, the opposite is true. Leadership that takes these rights seriously becomes stronger, their people become more capable of helping in the governance of their nation. You get good economic benefits too, but you get enormous social good that comes from the guarantee of this set of rights.”
  • “We’re very focused on our mission. The fact that some on the left have become sort of crazed by the fact that we’re . . . trying to create this religious freedom around the world, or define the central rights for every American, I find confusing, befuddling, and perhaps suggestive that they know they have the wrong end of the stick, and we are going to ground America in our constitutional understandings in ways that some . . .wish wouldn’t happen.”

After this interview, Hewitt published a laudatory account of this Commission.[3]“Pompeo is echoing Jefferson and Madison when he said there is ‘a central premise’ that ‘religious freedom makes countries stronger’ — that it produces security and safety as well as economic growth. Religious liberty is a building block of political stability; religious pluralism the cement of sturdy, long-lived states. . . . [T]he understanding is ascendant rising that only genuine tolerance of competing religious belief systems — wide-open but noncoercive invitations to preach and proselytize any faith claim — is the building block of political stability.”

The U.S. Commission on International Religious Freedom’s Chair, Tony Perkins, unsurprisingly applauded “the creation of this Commission as another way of ensuring that the protection of these fundamental rights – the most foundational of which is freedom of religion or belief – is a core element of strategic policy discussions.”  The Vice Chair, Gayle Manchin, agreed: “To the degree that this new Commission within the State Department can help further communicate from Washington to the Department’s farthest outposts the importance and urgency of religious freedom concerns as a fundamental human right, we believe this will lead to higher impact negotiations on behalf of the more than 70% of the world’s population that is currently suffering persecution or abuse.”[4]

Also supportive was Gary Bauer, a prominent Christian conservative activist, who said, “This administration has reached new levels of commitment on the fundamental right of freedom of religion that’s unprecedented historically, and I hope it will continue for decades ahead.”[5]

Skepticism about the Commission, however, continues to be voiced.

Rebecca Hamilton of Just Security warned that “the ‘natural law’ language was code for religiously-infused opposition both to reproductive rights and to protections for members of the LGBTQ community. . . . Michael Abramowitz, the president of Freedom House, expressed concern about the administration’s distinction between ‘unalienable rights’ and ‘ad-hoc rights,’ as well as its ‘seemingly permissive stance on a variety of human-rights abuses’ around the world. The head of Human Rights Watch was even more dismissive: “We don’t need a commission to figure out that the Trump administration will have little credibility promoting human rights so long as the president continues to embrace autocrats.” According to Amnesty International, “This approach only encourages other countries to adopt a disregard for basic human rights standards and risks weakening international, as well as regional frameworks, placing the rights of millions of people around the world in jeopardy.”[6]

Rob Bereschinski, a former deputy assistant secretary of state for democracy, human rights and labor and now the Senior Vice President, Policy for Human Rights First, a U.S. nonprofit, stated, “Given the way in which the Commission was conceived, without the input or awareness of the State Department’s human rights experts or members of Congress, many in the human rights community are skeptical of its motives. Secretary Pompeo has asserted that the body is meant to focus on ‘principles’ rather than ‘policy,’ but that’s a blurry distinction at best. The principles under which the United States advances human rights are well-established, and much of the criticism from human rights advocates concerning this administration centers on its violations of those rules. Each time the president attacks America’s free press as an ‘enemy of the people,’ or the administration obscures its role in separating children from their parents, or selectively highlights Iran’s poor human rights record while downplaying that of Saudi Arabia, U.S. credibility is undermined.”[7]

Roger Cohen, a New York Times columnist, castigated Secretary Pompeo for his pious assertions of the need to ascertain what human rights mean. “There is no need to reinvent the wheel, Mr. Secretary. A lot of bipartisan and international consensus, consolidated over the postwar decades, in the aftermath of the Holocaust and other horrors, exists as to what human rights are and what America’s role in defending them should be.”[8]

Therefore, said Cohen, “there is no need to reinvent the wheel, Mr. Secretary. A lot of bipartisan and international consensus, consolidated over the postwar decades, in the aftermath of the Holocaust and other horrors, exists as to what human rights are and what America’s role in defending them should be.”

“Modern human rights are grounded on the dignity inherent in every human being. They are not God-given rights, or Trump-given rights, and they apply to people of all faiths and to those who have none. They include freedom of speech, the press, assembly and religion, and the “right to recognition everywhere as a person before the law,” as the Universal Declaration puts it. They involve combating discrimination on the basis of race, ethnicity, disability, gender or sexual orientation.”

Pompeo has talked about the need to go back to concepts of natural law and natural rights at the time of the Declaration of Independence in 1776. But, Cohen continued, ”these ‘natural rights’ at the time, of course, included chattel slavery and the dehumanization of black people, as well as the disenfranchisement of women.” In short, “the ‘natural’ rights of 1776 are not the human rights the [U.S.] helped codify in 1948 [in the Universal Declaration of Human Rights].”

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[1] This Commission has been discussed in the following posts to dwkcommentaries.com: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019); More Comments About the Commission on Unalienable Rights (July 9, 2019); The Importance of the Universal Declaration of Human Rights (July 11, 2019).

[2] State Dep’t, Secretary of State Michael R. Pompeo With Hugh Hewitt of the Hugh Hewitt Show (July 17, 2019).

[3] Hewitt, The forces against religious freedom are ascendant. The Trump administration mounts a defense, Wash. Post (July  20, 2019).

 [4] U.S. Comm’n on Int’l Relig. Freedom, USCIRF Statement on State Department’s Creation of “Commission on Unalienable Rights” (July 8, 2019).

[5]  Toosi, Trump’s religious freedom conference creates awkward alliance, Politico (July 14, 2019).

[6] Drezner, Can any good come out of the Commission on Unalienable Rights? Wash. Post (July 10, 2019).

[7] Human Rts. First, State Commission on Unalienable Rights Must Focus on Reversing Harm Done by Administration (July 8, 2019).

[8] Cohen, Trump’s Ominous Attempt to Redefine Human Rights, N.Y. Times (July 12, 2019).

 

The Importance of the Universal Declaration of Human Rights

As has been noted in a post about the recent launching of the new U.S. Commission on Unalienable Rights, U.S. Secretary of State Mike Pompeo made the following favorable comments about the Universal Declaration of Human Rights (UDHR): “The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” [1] (Emphasis added.)

In addition, the Commission’s chair, Mary Ann Glendon, has written a marvelous book about the UDHR: A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). [2] In her Preface, she says this Declaration “became a pillar of a new international system under which a nation’s treatment of its own citizens was no longer immune from outside scrutiny. . . . Today, the Declaration is the single most important reference point for cross-national discussions of how to order our future together on our increasingly conflict-ridden and interdependent planet.”  (Emphasis added.) Her book’s Epilogue emphatically states:

  • The Universal Declaration created a bold new course for human rights by presenting a vision of freedom as linked to social security, balanced by responsibilities, grounded in respect for equal human dignity, and grounded by the rule of law.”
  • The Declaration’s principles, moreover, have increasingly acquired legal force, mainly through their incorporation into national legal systems.”
  • One of the most basic assumptions of the founders of the UN and the framers of the Declaration was that the root causes of atrocities and armed conflict are frequently to be found in poverty and discrimination.” (Emphases added.)

Therefore, the following brief summary of the UDHR should assist in understanding the upcoming work of the Commission.

The History of the UDHR

The Charter of the United Nations entered into force on October 24, 1945. Its Preamble stated, in part, that the U.N. was created “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women” and “to promote social progress and better standards of life in larger freedom.” And one of its stated purposes was “To achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (Art. 1(3)) The Charter also established the Economic and Social Council (Ch. X), which was to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.” (Art. 62(2))

In June 1946, that  Economic and Social Council established the Commission on Human Rights, comprising 18 members from various nationalities and political backgrounds. The Commission then established a special Universal Declaration of Human Rights Drafting Committee, chaired by Eleanor Roosevelt, to write the Declaration. The Committee met in two sessions over the course of two years to consider that proposed instrument with Canadian John Peters Humphrey, Director of the Division of Human Rights within the U.N. United Nations Secretariat, as the principal drafter of the UDHR along with a committee that included René Cassin of France, Charles Malik of Lebanon, and P. C. Chang of the Republic of China. Once the Committee finished its drafting in May 1948, the draft was further discussed by the U.N. Commission on Human Rights, the U.N. Economic and Social Council, and the Third Committee of the General Assembly. During these discussions many amendments and propositions were made by UN Member States.

On December 10, 1948, the U.N. General Assembly at a meeting in Paris, France adopted the Universal Declaration of Human Rights (UDHR) by a vote of 48-0. Eight other countries abstained: the Soviet Union, five members of the Soviet bloc (Byelorussia, Czechoslovakia, Poland, Ukraine and Yugoslavia), South Africa and Saudi Arabia. The other two U.N. members at the time were absent and not voting (Honduras and Yemen).[3]

Selected Provisions of the UDHR

Many of this Declaration’s words in its Preamble and 30 Articles are reminiscent of the language of the U.S. Declaration of Independence of July 4, 1776. Here are some of those words in the U.N. document:

  • “[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” (Preamble)
  • “[H]uman rights should be protected by the rule of law.” (Preamble)
  • The “peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women.” (Preamble)
  • N. “Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” (Preamble)
  • All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (Art. 1)
  • Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other s” (Art. 2)
  • Everyone has the right to life, liberty and security of person.” (Art.3)
  • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (Art. 7)
  • Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” (Art. 18) (Emphases added.)

Legal Status of the UDHR

As a resolution of the U.N. General Assembly, the UDHR is not legally binding on U.N. members. As Mr. Justice Souter stated in an opinion for the U.S. Supreme Court, “the [Universal] Declaration does not of its own force impose obligations as a matter of international law.”[4] Instead, like the U.S. Declaration of Independence, the UDHR was an inspiration and prelude to the subsequent preparation and adoption of various multilateral human rights treaties as well as national constitutions and laws.

Conclusion

 On December 10, 1978, the 30th anniversary of the UDHR’s adoption, President Jimmy Carter said this Declaration “and the human rights conventions [treaties] that derive from it . . . are a beacon, a guide to a future of personal security, political freedom, and social justice. . . . The Universal Declaration means that no nation can draw the cloak of sovereignty over torture, disappearances, officially sanctioned bigotry, or the destruction of freedom within its own borders. . . . Our pursuit of human rights is part of a broad effort to use our great power and our tremendous influence in the service of creating a better world, a world in which human beings can live in peace, in freedom, and with their basic needs adequately met.”[5]

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[1] Here are other posts about the Commission:  Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019); More Comments About the Commission on Unalienable Rights (July 9, 2019).

[2] The Glendon book discusses the history of the drafting of the Declaration and includes copies of the various drafts.

[3] U.N., Universal Declaration of Human Rights (Dec. 10, 1948), UN Gen. Assembly Res. 217A, Doc A/810 at 71;Universal Declaration of Human Rights, Wikipedia; Kentonspecial, Human Rights Declaration Adopted by U.N. General Assembly; U.N. VOTES ACCORD ON HUMAN RIGHTS, N.Y. Times (Dec. 11, 1948).

[4] Sosa v. Alvarez-Machain,  542 U.S. 692 (2004); Sosa v. Alvarez-Machain, Wikipedia.

[5] Excerpts From Carter’s Speech on Anniversary of Human Rights Declaration, N.Y. Times (Dec. 10, 1978).

 

More Comments on Commission on Unalienable Rights

Yesterday’s post covered the formal launch of the Commission on Unalienable Rights. Here are additional reactions to the Commission. [1]

Negative Reactions

 Senator Robert Menendez (Dem., NJ), the Ranking Member of the Senate Foreign Relations Committee, said that Mr. Pompeo’s argument for a new human rights panel was “absurd” and that the Trump administration “has taken a wrecking ball to America’s global leadership on promoting fundamental rights across the world.” Instead, “we need this President and this Secretary to actually champion human rights by standing up for America’s values and by using the framework that is already in place and which has been championed by prior administrations for decades, regardless of party.”

Representative Eliot Engel (Dem., NY). the Chair of the House of Representatives Foreign Affairs Committee, stated, “This commission risks undermining many international human-rights norms that the United States helped establish, including LGBTQI rights and other critical human-rights protections around the world. Decades ago, Congress created an entire bureau in the State Department dedicated to defending and reporting on human rights and advising the Secretary and senior diplomats on human rights and democratic development. Now the Secretary wants to make an end run around established structures, expertise, and the law to give preference to discriminatory ideologies that would narrow protections for women, including on reproductive rights; for members of the LGBTQI community; and for other minority groups.” Engel also noted that he had cosponsored a measure to prohibit funding for this new body that recently had been passed by the House.

The American Jewish World Service denounced the creation of the commission because of what it said was a religious bent to the panel. Its director of government affairs, Rori Kramer, said, “As a Jewish organization, we are deeply skeptical of a government commission using a narrow view of religion as a means to undermine the ecumenical belief of respecting the dignity of every person, as well as the fundamental human rights enshrined in the Universal Declaration of Human Rights. We fear this commission will use a very particular view of religion to further diminish U.S. leadership on human rights.”

Rob Berschinski, the Senior Vice President for policy at Human Rights First and a former  deputy assistant secretary of state in the Bureau of Democracy, Human Rights and Labor during the Obama administration, said well-established principles for advancing human rights already existed and did not need to be revamped. He added that most of the 10 people named to the new commission viewed human rights largely through the lens of religious freedom. “At first blush,” he said, “the commission certainly seems to reinforce the perception that the administration and State Department under Secretary Pompeo uniquely emphasize religious freedom amongst universal rights.”

Another observer also voiced negative views of the Commission. “We don’t need this commission,” said Michael Posner, the State Department’s assistant secretary for DRL from 2009 to 2013. “What we need is for the U.S. government, the secretary of state and the president to abide by and uphold international human rights standards we already have adopted.”

Joanne Lin of Amnesty International said, “”If this administration truly wanted to support people’s rights, it would use the global framework that’s already in place. Instead, it wants to undermine rights for individuals, as well as the responsibilities of governments. This approach only encourages other countries to adopt a disregard for basic human rights standards and risks weakening international, as well as regional frameworks, placing the rights of millions of people around the world in jeopardy.”

Positive Reactions

Daniel Philpott, a University of Notre Dame professor who was initially mentioned as a potential commission member, said that natural law reflects a concern that human rights have gone off the rails, in part because of abortion and claims about marriage rights. “The idea is these claims of human rights are not based upon natural law or the truth of the human person. In a sense, these are false claims to human rights. It brings down the cause of human rights in general. Why should we pursue other human rights if human rights can be anything one faction or party advocates them to be?”

The Wall Street Journal notes that the Chair of the new Commission, Mary Ann Glendon, opposes abortion and same-sex marriage. And Tony Perkins, the president of the conservative Family Research Council, endorsed the Commission as an effort to “help further the protection of religious freedom, which is the foundation for all other human rights.”

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[1] Press Release: Menendez Questions Intent and Impact of Trump Admin’s New Commission on Unalienable Rights (July 8, 2019); Press Release, Engel Statement on State Department “Unalienable Rights” Commission (July 8, 2019); Wong & Sullivan, New Human Rights Panel Raises fears of a Narrowing U.S. Advocacy, N.Y. Times (July 8, 2019); Morello, State Department launches panel focused on human rights and natural law, Wash. Post (July 8, 2019); Visser, Mike Pompeo Unveils New Panel To Refocus U.S. Human Rights Priorities, Huffington Post (July 8, 2019); Oprysko, Mike Pompeo unveils panel to examine ‘unalienable rights,’ Politico (July 8, 2019); McBride, Pompeo Creates Commission on Human Rights, W.S.J. (July 8, 2019).

 

 

 

 

 

U.S. Commission on Unalienable Rights Is Launched

On July 8, 2019, the U.S. State Department launched its Commission on Unalienable Rights.[1]

Secretary of State Pompeo’s Remarks

At the launch Secretary of State Michael Pompeo said “the Trump administration has embarked on a foreign policy that takes seriously the founders’ ideas of individual liberty and constitutional government. Those principles have long played a prominent role in our country’s foreign policy, and rightly so. But as that great admirer of the American experiment Alex de Tocqueville noted, democracies have a tendency to lose sight of the big picture in the hurly-burly of everyday affairs. Every once in a while, we need to step back and reflect seriously on where we are, where we’ve been, and whether we’re headed in the right direction, and that’s why I’m pleased to announce today the formation of a Commission on Unalienable Rights.”

The Commission will focus on “human rights grounded in our nation’s founding principles and the principles of the 1948 Universal Declaration of Human Rights. An American commitment to uphold human rights played a major role in transforming the moral landscape of the international relations after World War II, something all Americans can rightly be proud of. Under the leadership of Eleanor Roosevelt, the 1948 Universal Declaration on Human Rights ended forever the notion that nations could abuse their citizens without attracting notice or repercussions.” (Emphasis added.)

“With the indispensable support of President Ronald Reagan, a human rights revolution toppled the totalitarian regimes of the former Soviet Union. Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.”

“But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like ‘rights’ can be used for good or evil; ‘they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.’ And as Rabbi Jonathan Sacks has observed, the evils of any time and place will be justified in whatever is the dominant discourse of that time and of that place. We must, therefore, be vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.”

“It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect. Nation-states and international institutions remain confused about their respective responsibilities concerning human rights.” (Emphasis added.)

 With that as background and with all of this in mind, the time is right for an informed review of the role of human rights in American foreign policy.” (Emphasis added,)

The Secretary hopes that the Commission “will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights? (Emphasis added.)

To put it another way, “the commission’s charge is to point the way toward that more perfect fidelity to our nation’s founding principles. . . .” (Emphasis added.)

Secretary Pompeo’s Prior Wall Street Journal Article[2]

The day before the Department’s launching of the Commission. Secretary Pompeo published an article about the Commission in the Wall Street Journal, in which he made the following comments beyond what he said at the official launch.

“America’s Founders defined unalienable rights as including ‘life, liberty, and the pursuit of happiness.’ They designed the Constitution to protect individual dignity and freedom. A moral foreign policy should be grounded in this conception of human rights.”

“Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of ‘rights’ unmoors us from the principles of liberal democracy.” (Emphasis added.)

He hopes “that its work will generate a serious debate about human rights that extends across party lines and national borders.” It “will address basic questions: What are our fundamental freedoms? Why do we have them? Who or what grants these rights? How do we know if a claim of human rights is true? What happens when rights conflict? Should certain categories of rights be inextricably ‘linked’ to other rights?”

“The human-rights cause once united people from disparate nations and cultures in the effort to secure fundamental freedoms and fight evils like Nazism, communism and apartheid. We have lost that focus today. Rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups.” (Emphasis added.)

Oppressive regimes like Iran and Cuba have taken advantage of this cacophonous call for ‘rights,’ even pretending to be avatars of freedom. No one believed the Soviet call for collective economic and civil rights was really about freedom. But after the Cold War ended, many human-rights advocates adopted the same approach, appealing to contrived rights for political advantage.” (Emphases added.)

“The commission’s work could also help reorient international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions. Many have embraced and even accelerated the proliferation of rights claims—and all but abandoned serious efforts to protect fundamental freedoms.” (Emphasis added.)

Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” (Emphasis added.)

Announcement of Commission’s Chair

On July 8, the Secretary announced that the Chair of the Commission will be Mary Ann Glendon, the Learned Hand Professor of Law at Harvard Law School, an expert on human rights, comparative law and political theory and former U.S. Ambassador to the Holy See, among many honors.

Professor Glendon acknowledged this appointment with the following remarks:

 

  • “Secretary, I am deeply grateful for the honor of chairing this new commission, and I wanted to thank you especially for giving a priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators. At the same time, I understand that the mission that you have set us is a challenging one. You’ve asked us to work at the level of principle, not policy, and you’ve asked us to take our bearings from the distinctive rights tradition of the United States of America, a tradition that is grounded in the institutions without which rights would not be possible: constitutional government and the rule of law. I want to assure you, Mr. Secretary, that we will do our very best to carry out your marching orders and to do so in a way that will assist you in your difficult task of transmuting principle into policy.”

Announcement of Nine Other Commission Members

The Secretary also announced the appointment of the following nine additional members of the Commission. (The Commission’s Charter calls for 15 members so there may be an additional five members to be named later.)[3]

Russell Berman. He is the Walter A. Haas Professor in the Humanities at Stanford University, a Senior Fellow at the Hoover Institution and co-chair of its Working Group on Islamism and the International Order. Recently he has written about the reemergence of anti-Semitism and China’s “programmatic efforts to suppress the ethnic identity of the Uighur people” of Islamic faith.

Peter Berkowitz.  He is the Ted and Dianne Taube Senior Fellow at the Hoover Institution and a member of its Military History/Contemporary Conflict Working Group and a member of the State Department’s Policy Planning Staff. He “studies and writes about, among other things, constitutional government, conservatism and progressivism in the United States, liberal education, national security and law, and Middle East politics.”

Paolo Carozza. He is Professor of Law and Political Science at the University of Notre Dame and Director of its Kellogg Institute for International Studies an interdisciplinary, university-wide body “focusing on the themes of democracy and human development.”  His expertise is in the areas of comparative constitutional law, human rights, law and development and international law. From 2006 through 2010 he was a member of the Inter-American Commission on Human Rights, the principle international body for protecting human rights in the Western Hemisphere, and he also has served the Holy See in various capacities.

Hamza Yusuf Hanson. He is an American Islamic scholar, proponent of classical Islamic sciences and founder of Zaytuna College, a Muslim liberal arts college in Berkeley, California. According to The New Yorker Magazine, he is  “perhaps the most influential Islamic scholar in the Western world.” He was born in the U.S. as Mark Hanson and grew up a practicing Greek Orthodox Christian, but at age 19 he read the Qur-an and converted to Islam.

Jacqueline C.  Rivers. She is Lecturer on Sociology at Harvard University. She holds B.A. and Ph. D degrees with honors from Radcliffe College and Harvard and has served as Doctoral Fellow in the Multidisciplinary Program in Inequality and Social Policy of the Harvard’s J. F. Kennedy School of Government and a Graduate Research Fellow of the National Science Foundation. Rivers, an African-American, also is the Executive Director of the Seymour Institute on Black Church and Policy Studies, which seeks to create and promote a philosophical, political and theological framework for a pro-poor, pro-life, pro-family movement within the ecumenical Black Church both domestically and internationally.

Meir Soloveichik. He is an American Orthodox rabbi with a Ph.D. degree in religion from Princeton University. He has written extensively about Jewish thought and life, the relationship between Judaism and Christianity and the limits of interfaith dialogue. In 2012 he gave the opening invocation at the Republican National Convention.

Katrina Lantos Swett. She is the former chair of the U.S. Commission on International Religious Freedom and now the President of the Lantos Foundation for Human Rights, which is named in honor of her father, a Holocaust survivor and former Democratic Congressman. She is married to Richard Swett, former Ambassador to Denmark and former Congressman, and she converted to his faith, The Church of Jesus Christ of Latter-day Saints. She has been an unsuccessful Democratic candidate for the U.S. House of Representatives and Senate.

Christopher Tollefsen. He is the University of South Carolina’s College of Arts and Sciences Distinguished Philosophy Professor with specialization in moral philosophy, natural law ethics, practical ethics and bioethics. He has written many articles for “Public Discourse,” the journal of the Witherspoon Institute, which seeks to promote public understanding of the moral foundations of free societies.  He also is a co-author of Embryo: A Defense of Human Life and the editor of John Paul II’s Contribution to Catholic Bioethics.

David Tse-Chien Pan. He is Professor of German at University of California, Irvine. His research has focused on the problem of aesthetic experience as a mediator of human history in order to understand how history develops through a process of recollection and interpretation that depends on judgment and takes the reception of works of art as its model.

Reactions

Secretary Pompeo’s Wall Street Journal article for the first time really sets forth what has been speculated as the Commission’s true mission: redefinition and narrowing of international human rights.

A senior State Department official, in a report by CBS News, made the same point, perhaps more diplomatically, when he said the Commission will act like a “study group, examining the concept of universal human rights, where those rights come from and the difference between inherent rights and those prescribed by governments. . . . Unalienable rights are granted to everyone, everywhere, at all times. It doesn’t matter if you’re straight or gay, or a man or a woman, or black, white, brown or purple.’”

However, this official said, topics like abortion and gay marriage will not be part of the panel’s agenda. ‘Women’s rights or gay rights or healthcare rights, those are domestic issues.’ At some point gay marriage might be considered one of those, but this is an issue that’s being worked out on a nation-state level.’”

The importance of this Commission from the Trump Administration’s standpoint is underscored by the impressive resumes of its Chairperson and its initial other members. Therefore, advocates for the existing body of international human rights law need to prepare to combat this onslaught.

Amnesty International USA immediately said there was no reason for such a review given the decades-old protections in place and that the use of the word “unalienable” might be a code word to narrow human rights to the Founders’ notions of the late 18th century. Similar thoughts were expressed by the American Civil Liberties Union: “taxpayer resources would be better spent assessing the administration’s failure to meet basic human rights obligations, rather than redefining those rights.”

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[1] State Dep’t, Secretary of State Michael R. Pompeo Remarks to the Press (July 8, 2019); Sullivan & Wong, State Department Creates Advisory Panel on Human Rights, N.Y. Times (July 8, 2019); Reuters, Pompeo Launches Panel to Review Human Rights in U.S. Foreign Policy, N.Y. Times (July 8, 2019)(notes Trump Administration’s U.N. actions against sexual and reproductive health measures); Assoc. Press, Trump Administration Reviews Human Rights’ Role in US Policy, N.Y. Times (July 8, 2019). Previous posts to this blog have discussed this Commission: Is Trump Administration Attempting To Redefine International Human Rights? (June 15, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019); U.S. Commission on Unalienable Rights: Developments (July 4, 2019).

[2] Pompeo, Unalienable Human Rights and U.S. foreign Policy, W.S.J. (July 7, 2019).

[3] Another source listed two possible additional members of the Commission: Kiron Skinner and F. Cartwright Weiland. Skinner is the Director of Policy Planning at the State Department and a former Research Fellow at Stanford University’s Hoover Institution and a professor at Carnegie Mellon University. Weiland is a current or former chief speechwriter for Senator John Cornyn and Republican Whip (Rep., TX) and/or Policy Analyst at Texas Conservative Coalition Research Institute. (Ruffini, Mike Pompeo unveils new “Unalienable Rights” commission amid concerns over progressive rollbacks, CBS News (July 8, 2019).)

 

 

 

 

 

 

 

U.S. State Department’s First Ministerial To Advance Religious Freedom

In July 2018, the U.S. State Department held the first ever Ministerial To Advance Religious Freedom.[1] At the event’s conclusion, the State Department issued various documents that are discussed below.

The Potomac Declaration [2]

After quoting Article 18 regarding religious freedom of the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly in 1948, the Potomac Declaration asserted, “This right is under attack all around the world. Almost 80 percent of the global population reportedly experience severe limitations on this right. Persecution, repression, and discrimination on the basis of religion, belief, or non-belief are a daily reality for too many. It is time to address these challenges directly.” Therefore, the Chairman of the Ministerial (Secretary Pompeo) declared: the following:

  • “Every person everywhere has the right to freedom of thought, conscience, and religion. Every person has the right to hold any faith or belief, or none at all, and enjoys the freedom to change faith.
  • Religious freedom is universal and inalienable, and states must respect and protect this human right.
  • A person’s conscience is inviolable. The right to freedom of conscience, as set out in international human rights instruments, lies at the heart of religious freedom.
  • Persons are equal based on their shared humanity. There should be no discrimination on account of a person’s religion or belief. Everyone is entitled to equal protection under the law regardless of religious affiliation or lack thereof. Citizenship or the exercise of human rights and fundamental freedoms should not depend on religious identification or heritage.
  • Coercion aimed at forcing a person to adopt a certain religion is inconsistent with and a violation of the right to religious freedom. The threat of physical force or penal sanctions to compel believers or non-believers to adopt different beliefs, to recant their faith, or to reveal their faith is entirely at odds with freedom of religion.
  • Religious freedom applies to all individuals as right-holders. Believers can exercise this right alone or in community with others, and in public or private. While religions do not have human rights themselves, religious communities and their institutions benefit through the human rights enjoyed by their individual members.
  • Persons who belong to faith communities and non-believers alike have the right to participate freely in the public discourse of their respective societies. A state’s establishment of an official religion or traditional faith should not impair religious freedom or foster discrimination towards adherents of other religions or non-believers.
  • The active enjoyment of freedom of religion or belief encompasses many manifestations and a broad range of practices. These can include worship, observance, prayer, practice, teaching, and other activities.
  • Parents and legal guardians have the liberty to ensure the religious and moral education of their children in conformity with their own convictions.
  • Religion plays an important role in humanity’s common history and in societies today. The cultural heritage sites and objects important for past, present, and future religious practices should be preserved and treated with respect.”

The Potomac Plan of Action [3]

The lengthier Plan of Action also was issued by the Chairman of the Ministerial. It states as follows:

Defending the Human Right of Freedom of Religion or Belief

States should increase collective advocacy and coordination to promote and protect religious freedom and to counter the persecution of individuals because of religion or belief. In that spirit, states should work to:

  • Condemn strongly acts of discrimination and violence in the name of or against a particular religion or lack thereof and press for immediate accountability for those responsible for such violence, including state and non-state actors.
  • Protect members of religious communities, dissenting members, and non-believers from threats to their freedom, safety, livelihood, and security on account of their beliefs.
  • Respect the liberty of parents to provide their children religious and moral education in conformity with their own conscience and convictions and to ensure members of religious minority communities and non-believers are not forcibly indoctrinated into other faiths.
  • Protect the ability of religious adherents, institutions, and organizations to produce in quantities they desire religious publications and materials, as well as to import and disseminate such materials.
  • Increase international understanding of how suppression of religious freedom can contribute to violent extremism, sectarianism, conflict, insecurity, and instability.
  • Ensure false accusations of “extremism” are not used as a pretext to suppress the freedom of individuals to express their religious beliefs and to practice their faith, or otherwise limit freedoms of peaceful assembly and association.
  • Eliminate restrictions unduly limiting the ability of believers and non-believers to manifest their faith or beliefs in observance and practice, either alone or in community with others, through peaceful assembly, worship, observance, prayer, practice, teaching, and other activities.
  • Speak out bilaterally, as well as through multilateral fora, against violations or abuses of the right to freedom of religion or belief.

Confronting Legal Limitations

States should promote religious freedom and bring their laws and policies into line with international human rights norms regarding freedom of religion or belief. In that spirit, states should work to:

  • Protect freedom of thought, conscience, religion, or belief and ensure individuals can freely change beliefs, or not believe, without penalty or fear of violence, and encourage the repeal of provisions penalizing or discriminating against individuals for leaving or changing their religion or belief.
  • Encourage any state-managed registration systems for official recognition of religious communities be optional (rather than mandatory) and not unduly burdensome, so as to help facilitate the free and legal practice of religion for communities of believers.
  • Allow religious communities to establish freely accessible places of worship or assembly in public or private, to organize themselves according to their own hierarchical and institutional structures, to train their religious personnel and community members, and to select, appoint, and replace their personnel in accordance with their beliefs without government interference.
  • Repeal anti-blasphemy laws, which are inherently subjective, and often contribute to sectarianism and violent extremism. Enforcement of such laws unduly inhibits the exercise of the rights to freedoms of religion, belief, and expression and leads to other human rights violations or abuses.
  • Recognize that respect for religious freedom can afford space to religious actors to engage in constructive efforts to prevent and counter violent extremism, terrorism and conflict, and to collaborate with non-religious actors on the same.
  • Encourage the development of conscientious objection laws and policies to accommodate the religious beliefs of military age persons and provide alternatives to military service.

Advocating for Equal Rights and Protections for All, Including Members of Religious Minorities

States should promote the human rights of members of religious minorities, dissenting members from the majority faith, and non-believers, including freedom of religion or belief. In that spirit, states should work to:

  • Treat all persons equally under the law – regardless of an individual’s religion, beliefs or religious affiliation, or lack thereof – and ensure law enforcement officials take measures to protect all persons, including members of religious minorities, from harm or discriminatory acts on account of their faith or beliefs.
  • Prevent discrimination on the grounds of religion or belief in access to justice, employment, education and housing, in personal status and family laws, and in access to opportunities for expression in public forums.
  • Ensure that all people, including religious minority community members, are free from forced conversions, and are entitled to and receive equal protection under the law without discrimination.
  • Respond quickly to physical assaults on persons and the destruction or vandalizing of holy sites or property based on religion or belief, and hold those responsible accountable.
  • Encourage teaching about the value of intra- and inter-faith understanding and collaboration, and promote a general understanding of world religions to reduce harmful misunderstandings and stereotypes.
  • Foster religious freedom and pluralism by promoting the ability of members of all religious communities, including migrant workers, to practice their religion, and to contribute openly and on an equal footing to society.
  • Encourage authorities to denounce and condemn public discrimination and crimes targeting individuals on account of their religion or belief or lack thereof.

Responding to Genocide and other Mass Atrocities

States should use appropriate diplomatic, humanitarian and other necessary means to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, including when based on religious convictions. In that spirit, states should work to:

  • Take immediate action to protect their populations from genocide, crimes against humanity, war crimes, and ethnic cleansing.
  • Condemn messages or narratives that promote violence against the holders of certain religious or other beliefs or that foster intra- and inter-religious tensions, whether by government officials or non-state actors.
  • Take steps to support investigative efforts and work to preserve evidence and document suspected crimes when reports of atrocities arise, including genocide, war crimes, crimes against humanity, or ethnic cleansing.
  • Hold accountable those responsible for genocide, crimes against humanity, war crimes, mass atrocities, and ethnic cleansing and related crimes, and employ mechanisms to promote accountability, justice, and reconciliation.
  • Consider the needs of survivors and families of survivors of atrocities and provide them assistance and resources to help rebuild and heal traumatized communities and individuals in post-conflict areas.
  • Work with willing victims and survivors of mass atrocities to develop and disseminate communications and educational efforts about their experiences, recovery and resilience.

Preserving Cultural Heritage

States should increase efforts to protect and preserve cultural heritage, including that of threatened minority religious communities, particularly in conflict zones, and to preserve cultural heritage sites, even those of communities whose members have dwindled or emigrated to other countries. In that spirit, states should work to:

  • Adopt and implement policies that introduce or improve inventory lists of cultural sites and objects that promote respect for and protect heritage, including places of worship and religious sites, shrines, and cemeteries, and that take appropriate protective measures where such sites are vulnerable to vandalism or destruction by state or non-state actors.
  • Safeguard heritage sites, and help other governments do so, by offering technical assistance and professional training to relevant officials, as well as provide emergency assistance for sites in immediate danger.
  • Assist impacted communities to secure, protect, repair and/or stabilize their cultural heritage sites.
  • Encourage participation by the local population in the preservation of their cultural heritage, and engage members of religious communities and others, including their leadership, with training on ways to protect their cultural heritage from damage and/or looting.
  • Assist with efforts to restore cultural heritage sites of significance to multiple communities in a conflict zone so as to foster intra- and inter-faith relations and rebuild trust.
  • Raise public awareness, particularly among youth, of the significance and history of cultural heritage, by working with and through religious actors and other community leaders.

Strengthening the Response

States should take actions to respond to threats to religious freedom that continue to proliferate around the world. In that spirit, states should consider endorsing the Potomac Declaration and work to:

  • Extend financial support to assist persons persecuted for their religious freedom advocacy, affiliation or practice, or for being a non-believer and support the capacity-building work of religious freedom advocacy organizations, and encourage private foundations to increase funding to such causes.
  • Strengthen rule-of-law, fair trial guarantees, and the institutional capacity to protect religious freedom and other human rights.
  • Provide additional diplomatic resources through the creation of special ambassadorial positions or focal points in foreign ministries, and support collective action through such groupings as the International Contact Group for Freedom of Religion or Belief and the International Panel of Parliamentarians for Freedom of Religion or Belief.
  • Train and equip diplomats in the meaning and value of religious freedom and how to advance it.
  • Recommit annually to promoting religious freedom for all, by establishing August 3, the first day of ISIS’s Sinjar massacre targeting Yezidis, as a nationally or internationally recognized day of remembrance of survivors of religious persecution.
  • Allow and support civil society organizations and religious actors in their efforts to advocate for, and organize on behalf of, religious freedom, pluralism, peace and tolerance and related values.
  • Facilitate the creation of domestic forums, or utilize existing groups, where religious groups, faith-based organizations and civil society can meet to discuss concerns about religious freedom at home and abroad, as well as through bodies at the regional level.
  • Encourage government ministries and officials to engage with and listen to the domestic forums regularly, and implement relevant suggestions when possible.
  • Encourage national economic investment projects that foster collaboration and trust building across different communities and demonstrate the economic, societal and individual benefits of respect for religious freedom and pluralism.
  • Train and support religious community actors, including religious actors, to build resilience to and prevent violent extremism and terrorism, which negatively affect religious freedom, by disseminating alternative messages, engaging at-risk community members, and implementing intra- and inter-faith partnerships.

International Religious Freedom Fund [4]

With the U.S. providing coverage for all personnel, administrative and overhead expenses, all of the funds contributed by others would fund the following program activities:

  • Supporting initiatives that address the barriers to freedom of religion or belief. This encompasses activities such as advocacy initiatives, awareness campaigns, public messaging, community inclusion efforts, conflict prevention
  • Providing assistance to those facing discrimination on the basis of religion or belief for individual needs including, assistance to address threats of violence; medical needs resulting from violent assault; and replacement of equipment damaged or confiscated as a result of harassment.

Other Actions of the Ministerial [5]

The Ministerial also issued statements about Repression by Non-State Actors, including Terrorist Groups; Iran; Counterterrorism as a False Pretext for Religious freedom Repression; China; Burma; and Blasphemy/Apostasy Laws.

According to the Secretary of State before its convening, this Ministerial was to “reaffirm our commitment to religious freedom as a universal human right. This ministerial . . . . . . Religious freedom is indeed a universal human right that I will fight for. [The Ministerial] will not just be a discussion group. It will be about action. We look forward to identifying concrete ways to push back against persecution and ensure greater respect for religious freedom for all.”

At the conclusion of this Ministerial, the Secretary of State emphasized that “President Trump has directed his administration to advance and defend the rights of religious freedom at home and abroad, because religious freedom is a universal God-given right to which all people are entitled. It is also an essential building block for all free societies. Ensuring religious freedom around the world is a key priority of the Trump administration’s foreign policy.”

After describing what happened at the Ministerial, Secretary Pompeo complimented Vice President Pence’s announcement of the U.S. Genocide Recovery and Persecution Response, and the U.S. International Religious Freedom Fund. Pompeo also announced that the Department was creating a ten-day International Victor Leadership Program for those “working on the frontiers of religious freedom issues” around the world and a three-day workshop Boldline “to support and scale innovative public-private partnerships that promote and defend religious freedom around the world.” Also announced was the then upcoming Potomac Declaration and the Potomac Plan of Action for religious freedom.

Conclusion

 Although as a member of a Presbyterian Church I strive to follow the teachings of Jesus, I approached the investigation of this Ministerial with some skepticism and fear that it was a device to promulgate what I would regard as a right-wing approach to religion and Christianity.

However, the above account of the work of the first Ministerial does not support such skepticism.Nor does the latest State Department annual report on international religious freedom insofar as it cites to the relevant international standards on the subject. Whether or not its gathered “evidence” or analysis of same meets the same standard is another issue for another day. [6]

Later this month the State Department will hold its second such Ministerial [7] for like-minded governments that have a demonstrated record of advancing religious freedom and are committed to promoting Article 18 of the Universal Declaration of Human Rights, or governments that have taken significant and meaningful steps to do so; and survivors or close relatives of those who suffered persecution due to their religion or beliefs. This Ministerial will have the following agenda:

  • Discuss opportunities and challenges for promoting and defending religious freedom globally, including how such freedom, international development and humanitarian aid can work together.
  • Discuss best practices for religious freedom advocacy; limitations in forming, registering and recognizing religious communities; challenges facing religious minorities; combatting the rise of anti-Semitism and anti-Islamic behavior; countering violent extremism; religious freedom and national security; religious freedom and economic development; cultural heritage protection for religious sites; religious minorities and humanitarian crises; international development aid and religious freedom; and mobilizing faith leaders around peace and development goals.
  • Identify global challenges to religious freedom; develop innovative responses to persecution on the basis of religion; and share new commitments to protect religious freedom for all. Invitations will be extended to

This blog will examine this second Ministerial’s work to see if there is any reason to change a favorable opinion about its work. As always, this blog invites reasoned pro and con comments, especially for topics or perspectives that were overlooked.

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[1] According to the State Department’s Diplomatic Dictionary, a “ministerial” is a “ formally arranged meeting of ministers of various states, such as the Defense or Foreign Ministers of the member states of the North Atlantic Treaty Organization.”

[2] State Dep’t, Potomac Declaration (July 24, 2018).

[3] State Dep’t, Potomac Plan of Action (July 24, 2018).

[3] State Dep’t, International Religious Freedom Fund: Fact Sheet (July 27, 2018).

[4] State Dep’t, Ministerial to Advance Religious Freedom Statement on Religious Freedom Repression by Non-State Actors, including Terrorist Groups (July 26, 2018); State Dep’t, Ministerial to Advance Religious Freedom Statement on Iran (July 26, 2018); State Dep’t, Ministerial to Advance Religious freedom Statement on Counterterrorism as a False Pretext for Religious Freedom Repression (July 26, 2018); State Dep’t, Ministerial to Advance Religious freedom Statement on China (July 26, 2018); State Dep’t, Ministerial to Advance Religious freedom Statement on Burma (July 26, 2018); State Dep’t, Ministerial to Advance Religious freedom Statement on Blasphemy/Apostasy Laws (July 26, 2018).

[5] State Department’s Latest Report on International Religious Freedom, dwkcommentaries.com (June 25, 2019).

[6] State Department’s Latest Report on International Religious Freedom, dwkcommentaries.com (June 25, 2019)

[7] State Dep’t, Ministerial to Advance Religious Freedom, 16-18 July 2019 (June 21, 2019); State Dep’t, Secretary Pompeo Convenes Second Ministerial To Advance Religious Freedom (June 25, 2019).

 

The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes

The U.S. Declaration of Independence of July 4, 1776, obviously preceded and in many ways inspired the U.S. Constitution of September 17, 1787. But in my three years as a student at the University of Chicago Law School, 1963-1966, and my 35 years as a practicing litigator-attorney (including some constitutional cases), 1966-2001, I never encountered the question of whether and how the Declaration should and could affect the interpretation of the Constitution.

George Will

Now noted author and commentator George Will in the “Introduction” to his new book, The Conservative Sensibility, says “We [conservatives] seek to conserve the American Founding” with a “clear mission: It is to conserve, by articulating and demonstrating the continuing pertinence of, the Founders’ thinking.” Indeed, “Americans codified their Founding doctrines as a natural rights republic in an exceptional Constitution, one that does not say what government must do for them but what government may not do for them.”

Therefore, according to Mr. Will’s book, “The doctrine of natural rights is the most solid foundation—perhaps the only firm foundation—for the idea of the political equality of all self-directing individuals.”

One of Will’s recent columns extends these thoughts. He says, “the Declaration expressed, as Thomas Jefferson insisted, the broadly shared ‘common sense of the subject.’ Rather than belabor the Declaration’s (to them, unremarkable) assertions, the Constitution’s framers set about creating institutional architecture that would achieve their intention: to establish governance that accords with the common sense of their time, which was that government is properly instituted to “secure” the preexisting natural rights referenced in the Declaration.” Therefore, the “The Declaration’s role is the locus classicus [classical location] concerning the framers’ intention [and original meaning and continuing purpose], which is surely the master key to properly construing what they wrought.”[1]

Jeffrey Rosen

Jeffrey Rosen, president and CEO of the National Constitution Center in Philadelphia and a law professor at George Washington University, shares some of the ways that the Declaration has influenced the Constitution.[2]  As President Lincoln noted in 1861, “the expression of the principle [of Liberty for All] in our Declaration of Independence . . . was the word ‘fitly spoken’ which has proved an ‘apple of gold’ to us. The Union, and the Constitution, are the picture of silver, subsequently framed around it.” As Lincoln recognized, “the two documents are closely linked. From the Founding era until today, conservatives, liberals and everyone in between have agreed that the theoretical basis of the U.S. Constitution—and American political life in general—can be found in Thomas Jefferson’s” words in the Declaration, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”

However, Rosen says, conservatives and liberals often disagree about what these words of the Declaration mean in terms of government policies and laws, as has been true throughout our history. This has been true in political debates in some Supreme Court cases. For example, in last week’s case about partisan gerrymandering, Justice Kagan in dissent cited the Declaration’s statement that governments derive “their just Powers from the Consent of the Governed” to justify her opinion that the courts need to intervene in gerrymandering cases. On the other hand, conservatives today cite the Declaration’s “all men are created equal” to support their assertion that there is a fundamental right to life that trumps a woman’s right to an abortion.

Reactions

The notion that the Declaration is relevant to interpreting the Constitution is superficially attractive. But most of the Declaration is a bill of particulars against “the present King of Great Britain” and his “repeated injuries and usurpations, all having, in direct object, the establishment of an absolute tyranny over these States.” Those words do not appear to be helpful in interpreting the subsequent Constitution.

More importantly for Will and other like-minded individuals, the Declaration holds “these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these, are life, liberty, and the pursuit of happiness.” This apparently is the central assertions that should be used in interpreting the Constitution.

But immediately after these words, the Declaration states, “to secure these rights, governments are instituted among men.” For this blogger, those words strongly suggest, if do not require, an examination of the words adopted by the government in constitutions and statutes in order to construe those rights.

This blogger would appreciate intelligent reactions and comments on these issues as well as citations to any U.S. Supreme Court cases that use the Declaration to interpret the Constitution.

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[1] Will, To construe the Constitution, look to the Declaration, Wash. Post (July 3, 2019).

[2] Rosen, The Declaration of Independence Unites and Divides Us, W.S..J. (July 4, 2019),

U.S. Commission on Unalienable Rights: Developments

On May 22, 2019, the U.S. State Department announced its formation of the Commission on Unalienable Rights with two stated purposes. First, to provide the Secretary of State with “informed advice and recommendations concerning international human rights matters . . . [and] fresh thinking about human rights and . . . reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.” Second, to help “guide U.S. diplomatic and foreign policy decisions and actions with respect to human rights in international settings . . . [and] recover that which is enduring for the maintenance of free and open societies.” (Emphases added.)[1]

Although the Department has not yet provided many details about the Commission, there already has been positive and negative commentary about what this Commission might do.[2]

Now Politico reports that the Department is planning to launch the Commission next Monday, July 8, with the names of at least 10 of the body’s 15 members. Also it is being said that the Commission was developed “with almost no input from the . . . Department’s human rights bureau, .  . . [thereby] sidelining career government experts who have focused on human rights policy and history across numerous administrations.” There have been internal comments that the new body will at least consult one major international document—the 1948 Universal Declaration of Human Rights.[3]

Senator Bob Menendez (Dem., NJ), the Ranking Member of the Senate Foreign Relations Committee, issued a letter of concern to Secretary of State Mike Pompeo that was joined by Senators Patrick Leahy (Dem., VT), Dick Durbin (Dem., IL), Jeanne Shaheen (Dem., NH) and Chris Coons (Dem., DE). They expressed “deep concern over the process and intent” of the new body.[4] Here are some of the key points of this letter:

  • “With deep reservations about the Commission, we request that you not take any further action regarding its membership or proposed operations without first consulting with congressional oversight and appropriations committees.” Of particular concern was the reference to ‘natural law’ and ‘natural rights,’ terms which are “sometimes used in association with discrimination against marginalized populations” without mentioning “the Universal Declaration of Human Rights or any international human rights treaty the [U.S.] has signed or ratified.”
  • This letter also said that some of the rumored members of the Commission “are individuals known to support discriminatory policies toward LGBTQ people, hold views hostile to women’s rights, and/or to support positions at odds with U.S. treaty obligations.”

These are additional reasons for international human rights advocates to be concerned about this Commission and to be ready for its anticipated launching on July 8.

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[1] State Dep’t, Notice: Department of State Commission on Unalienable Rights, 84 Fed. Reg. 25109 (May 30, 2019); State Dep’t, Charter: Commission on Unalienable Rights (created: May 10, 2019); State Dep’t, Membership Balance Plan: Commission on Unalienable Rights (created: May 10, 2019).

[2] For more details, see these posts to dwkcommentaries.com: Is Trump Administration Attempting To Redefine International Human Rights? (June 16, 2019); Other Reactions to State Department’s Commission on Unalienable Rights (June 17, 2019); More Thoughts on Commission on Unalienable Rights (June 18, 2019).

[3] Toosi, Trump’s ‘natural law’ human rights panel readies for launch, Politico (July 3, 2019).

[4] Menendez Press Release, Menendez, Leahy, Durbin, Shaheen, Coons Raise Alarm over Trump Administration’s Plans to Redefine Human Rights through New Commission (June 12, 2019).