Evaluation of the Report of the U.S. Commission on Unalienable Rights and Its Endorsement by Secretary Pompeo  

The Draft Report of the U.S. Commission on Unalienable Rights and its immediate endorsement by Secretary Pompeo raise many issues.[1]

Here is an evaluation of three of those issues: (1)  property rights and religious freedom as the alleged paramount human rights; (2) the report’s skepticism of new and additional rights; and (3) Pompeo’s exceedingly hostile criticism of the New York Times’ “The 1619 Project.”

 Property Rights and Religious Freedom[2]

Looking at the Commission’s Report for the first time, I was shocked to read, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty,” neither of which is specifically mentioned in the U.S. Declaration of Independence as an inalienable right. Moreover, the Report did not purport to document the bases for this conclusion other than inserting these unconvincing statements:

  • “For the founders, property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.”
  • “‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”

The Report then immediately and properly admits the inconsistency between the purported status of property rights as a “foremost inalienable right” and the existence of slavery when the Declaration of Independence was adopted in 1776.  Here is that admission: “The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property.”

In addition, the concept of property rights is not mentioned in the Report’s earlier assertions about the origins of the American concept of unalienable rights from three traditions: “Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”

The shock of this designation of alleged “foremost” human rights makes one wonder whether it was a last-minute insertion, perhaps by Secretary Pompeo himself, who said in his speech immediately after the presentation of the Commission Report, ““The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom. (Emphasis added.)

Many commentators have attacked the contention that property rights and religious freedom were the “foremost” rights.

Daniel W. Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, asserts that “there are obvious elements of liberty  . . that are disconnected from any conventional understanding of property rights concept. The First Amendment right to peaceably assemble, for example, seems like a core aspect of liberty and yet does not quite work as a property right per se.” In addition, when the Report refers to rights that are “fundamental” and “core concept” and “absolute or nearly so” rights, it refers to the right to vote, human dignity and the prohibition against genocide and makes no connection to property rights or religious rights.

Another critique came from Akila Radhakrishnan, the president of the Global Justice Center, an international human rights organization. He said, “You’re seeing the rise of autocrats across the world. You’re giving a gift to those people, and not only taking away U.S. leadership, but giving them and feeding them arguments they’ve long been making as well.”

U.S. Senator Bob Menendez (Dem., NJ), criticized Pompeo’s designation of property rights and religious liberty as “foremost” rights while other rights were less important. This argument, the Senator said, purports to justify “the  rollback of hard-won advances for the rights of women, girls, and LGBTQ persons” and “does not  call on the U.S. Government to champion greater protections for all human rights abroad, but may in fact narrow the scope of U.S. human rights obligations and further erode America’s moral and global leadership.”  This Report, therefore, “will undermine long-standing, internationally-recognized human rights principles and a human rights framework which prior U.S. presidents and administrations have championed for decades, regardless of party.”

The Report’s elevation of religious freedom presented problems to Rori Kramer, the director of U.S. advocacy for American Jewish World Service and a former deputy assistant secretary of state and a senior foreign policy adviser in the U.S. Senate.  This decision “purposefully [confuses] the individual freedom to worship with a state license to advance a particular religious agenda [and] is a gross misreading of the United States’ founding document.”

Kramer added, the Report and Pompeo do not reveal the promotion of Pompeo’s own religious agenda that  “downplays threats to the human rights of the world’s most vulnerable groups, such as women and LGBTQI+ people.” Indeed, Pompeo’s State Department already has removed “references to sexual and reproductive health from international resolutions and statements, as well as from the work of the department itself. And he has dramatically expanded the global gag rule, the draconian policy which prohibits foreign organizations receiving U.S. funding from providing any kind of information, referrals or services about abortion.”

Tarah Demant, director of the gender, sexuality and identity program at Amnesty International USA, said: “The US government cannot unilaterally redefine which human rights will be respected and which will be ignored. The U.S. State Department’s effort to cherry-pick rights in order to deny some their human rights is a dangerous political stunt that could spark a race to the bottom by human rights-abusing governments around the world.”

A more general critique of the idea of too many subgroups demanding rights came from Elisa Massimino, the 2019-2020 Robert F. Drinan, S.J., Chair in Human Rights at Georgetown University Law Center and a senior fellow at the Center for American Progress., and  Alexandra Schmitt, a policy analyst at the Center for American Progress. They say the UDHR’s preamble expressly recognizes the inherent dignity and of the equal and inalienable rights” of all humans and makes clear that all of them are interrelated and must be treated as indivisible in order to fulfill the promise of human dignity. It is a simple and radical document — a Magna Carta for all humankind.”

Therefore, Massimino and Schmitt say, “What the global human rights movement needs right now is for the United States to fully embrace the universality and indivisibility of human rights as set out in the Universal Declaration, provide a full-throated defense of human rights abroad and engage in an honest effort to address deep and persistent rights violations at home. It’s clear that Pompeo has no intention of leading such an effort; to the contrary, he is actively undermining it. To the extent that he tries to leverage the commission’s report as cover for his campaign to “prioritize” freedom of religion over other universal rights, American officials — and Congress, in particular — must be prepared to push back.”

Skepticism of Additional Rights[3]

The Report and Pompeo are skeptical of claims for additional rights, both domestically in U.S. law and in international treaties.

The Report puts it in this manner: “The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.”  Who could be against caution?

Pompeo also was indirect. He said, “Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.” And “Americans have . . . positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t. . . . Prioritizing which rights to defend is also hard.. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.”

In so doing, the Report and Pompeo forget or ignore the Declaration of Independence, which does not have the force of law and which  immediately after mentioning  “certain unalienable rights” (life, liberty and the pursuit of happiness) states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, the U.S. Declaration expressly contemplates, if not requires, that the U.S. government under the subsequent U.S. Constitution, will enact statutes to secure these unalienable rights and thereby create additional rights.

The UDHR, which also does not have the force of law, has the same contemplation and requirement when in its Preamble, it states, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” and in its Proclamation states, “every individual and every organ of society . . . shall strive . . . by progressive measures, national and international, to secure their universal and effective recognition  and observance.” In other words, the UDHR expressly contemplates, if not requires, that individual governments and international organizations will adopt subsequent statues and treaties to secure the rights  of the UDHR.

The Report nevertheless favorably and correctly refers to the many “positive rights,” which “are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings” and which “may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”

The Report emphasized this fact by quoting James Madison’s June 1789 speech to Congress in favor of a Bill of Rights [which was adopted in 1791). He stressed that despite different origins , “freedom is a function of positive rights elaborated in various legal codes as well as rights that belong to all human beings.” The Report also mentions that “American legislatures in the late 19th and early 20th centuries . . . began to enact protections for workers that were framed in the language of rights . . . . that entail difficult judgments about the allocation of material resources . . .[and that primarily are the tasks for legislatures.]”

Time has not stood still since 1776 when the U.S. Declaration was adopted or 1789 when the U.S. Constitution was ratified and the U.S. Government was established. The same is true with respect to the international organizations and treaties established after the adoption of the UDHR in 1948. Therefore, it is not surprising to have additional rights created over time in statutes and treaties.

Fourth, numerous commentators have criticized the Report and Pompeo on this issue.

As Molly Bangs in Truthout notes, the Report does not endorse protections against discrimination on the basis of gender, race or sexual orientation and instead asserts that “abortion, affirmative action, and same-sex marriage [are] divisive social and political controversies in the [U.S.]” This is “a signal of how the Commission and Pompeo intend to weaponize religious freedom at the expense of other human rights.”

A similar criticism came from Amnesty International, saying, the U.S. “has disgracefully sought to abandon its obligations to uphold the human rights to health and freedom from discrimination, among others. The US government is not legally allowed to unilaterally redefine its obligations under international human rights treaties, which almost all countries in the world have agreed to uphold.” According to Amnesty, the U.S. “now is seeking to deny reproductive rights, LGBTI rights and socio-economic rights, among others – which it frames as ‘divisive social and political controversies’ – by unilaterally redefining what ‘human rights’ mean.”

The Council on Foreign Relations’ Senior Fellow on Global Governance, Stewart M. Patrick, said Pompeo’s ideas, “if successful, would undermine the cause of freedom, equality and justice, both at home and abroad.” Indeed, the Report “reflects a conservative desire to roll back recent progressive advances” and it alleges, without any evidence, that “the prodigious expansion of human rights has weakened rather than strengthened the claims of human rights and left the most disadvantaged more vulnerable.” Stewart also points out the Report’s “utter disconnect from the Trump administration’s hypocritical human rights policy,” including  “the president’s curious affinity for illiberal leaders ranging from Russia’s Vladimir Putin and China’s Xi Jinping, to Turkey’s Recep Tayyip Erdogan, Saudi Arabia’s Mohammed bin Salman, the Philippines’ Rodrigo Duterte and Brazil’s Jair Bolsonar.”

Human Rights Watch had similar thoughts. While the Report expresses “concern” about a “proliferation” of human rights claims, it should have focused more on “the growing number of autocratic, authoritarian governments that brazenly cast them aside.” Therefore, this organization has submitted a formal comment to the Commission before it revises, if at all, the draft Report.

The most strident critique of the Report comes from Robert Blitt, a professor at the University of Tennessee College of Law, who says it “will only strengthen the Kremlin’s longstanding effort to undercut the international human rights system.” While the U.S.recently resigned from the U.N. Human Rights Council, Russia is campaigning for a seat on that body by promising to prevent the use of human rights issues as pretexts for interference in the internal affairs of sovereign states.

Criticism of the 1619 Project[4]

In his speech commending the Commission Report, Pompeo said, “The New York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.”[5]

Yes, the 1619 Project sets forth important and troubling facts about the introduction of slavery into the American colonies in 1619 that are not well known or taught, that should be known by all Americans and that should not be met with Pompeo’s unjustified ad homonyms of “Marxist ideology” and “a slander on our great people.”

The Times’ introduction of this project stated its goal was “to reframe American history by considering . . .  1619 as our nation’s birth year . . . when a ship arrived  . . . in the British colony of Virginia , bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required –grew nearly everything that has truly made America exceptional: its economic might, its industrial power, its electoral system, diet and popular music, the inequities of its public health and education, its astonishing penchant for violence, its income inequality, the example it sets for the world as a land of freedom and equality, its slang, its legal system and the endemic fears and hatreds that continue to plague it to this day.”

More details of this early history were provided in The 1619 Project by Nikole Hannah-Jones, a MacArthur “Genius” fellow and a Times staff writer, who authored “The Idea of America.” Here are a few of those details:

  • “Before the abolishment of the international slave trade, 400,000 enslaved Africans would be sold into America.”
  • “Chattel slavery . . . was heritable and permanent, . . ., meaning generations of black people were born into it and passed their enslaved status onto their children. Enslaved people were not recognized as human beings but as property that could be mortgaged, traded, bought, sold, used as collateral, given as a gift and disposed of violently.”
  • “Enslaved people could not legally marry. They were barred from learning to read and restricted from meeting privately in groups. They had no claim to their own children, who could be bought, sold and traded away from them on auction blocks. Enslavers and the courts did not honor kinship ties to mothers, siblings, cousins.”
  • “In most courts, they had no legal standing.”
  • “One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”
  • Although the Declaration of Independence, did not apply to them, “black Americans believed fervently in the American creed” and “through centuries of black resistance and protest, we have helped the country to live up to its founding ideals.”
  • Six of the U.S. Constitution’s 84 clauses deal directly with the enslaved and their enslavement and another five clauses have implications for slavery.
  • Through their labor, they helped build “vast fortunes for white people North and South.”

Although the Commission Report does not mention these facts about 1619 and slavery, it does confess the evils of slavery in America:

  • “Respect for unalienable rights requires forthright acknowledgement of not only where the United States has fallen short of its principles but also special recognition of the sin of slavery — an institution as old as human civilization and our nation’s deepest violation of unalienable rights. The legally protected and institutionally entrenched slavery that disfigured the United States at its birth reduced fellow human beings to property to be bought, sold, and used as a means for their owners’ benefit. Many slave-owning founders, not least Thomas Jefferson, recognized that in the light of unalienable rights, slavery could only be seen as a cruel and indefensible institution. In contemplating slavery in his Notes on the State of Virginia, he wrote, “I tremble for my country when I reflect that God is just.” Nevertheless, it would take a grievous civil war, costing more American lives by far than any other conflict in the nation’s history, to enable the federal government to declare slavery unlawful. It would take another century of struggle to incorporate into the laws of the land protections to guarantee African Americans their civil and political rights. Our nation still works to secure, in its laws and culture, the respect for all persons our founding convictions require.” (Emphasis added.)

Even today, the Report admits, “the nation must be humble in light of the work that remains to be done.”  The Report also confesses, “the brutal killing of an African-American man [George Floyd] in the late spring of 2020 and the subsequent civic unrest that swept the country underscore that much still must be accomplished.”

But the Report does not trace the history of slavery in America back to its founding in 1619 or admit that for the first 157 years of that history African-American slaves had no legal basis to challenge their being held in slavery. The Report only indirectly alleges that after 1776 the slaves had an inchoate right to argue that the unalienable rights mentioned in the U.S. Declaration of Independence were contrary to slavery, but admits that it was only after the bloody Civil War and the 1865 adoption of the Thirteenth Amendment that slavery was legally abolished. The Report also admits that even that was not enough to abolish the discrimination against African-Americans with the subsequent Jim Crow laws, lynching and other discriminations.

The Times’ initial publication of the 1619 Project in August 2019 has many articles and has prompted publication of many other articles on this subject. Perhaps there are errors of fact or interpretation in these many articles, but the appropriate way to counter such errors is by dispassionate fact-based scholarly articles and books, not by wild-eyed accusations of Marxism and slander. Take note, Secretary Pompeo.

In direct response to Pompeo’s criticism of the 1619 Project, Eileen Murphy of the Times said, ““The 1619 Project, based on decades of recent historical scholarship that has deepened our understanding of the country’s founding, is one of the most impactful works of journalism published last year. We’re proud that it continues to spark a dialogue that allows us to re-examine our assumptions about the past.”

Pompeo’s Political Motives for the Report[6]

Pompeo, a former Kansas GOP congressman, is known to be eyeing a potential future presidential run, and his critics immediately pointed out that the speech endorsing the Commission report had plenty of fodder for the electoral base of the Republican Party, including the media-bashing.

There was additional fodder for that possible presidential run the very next day when Pompeo and his wife went to Iowa (an important presidential nominating state) for a speech (reprinted on the State Department website) before a gathering of a conservative Christian group opposed to divorce, abortion and other sexual orientations. There Pompeo bragged that under his leadership the State Department has a “pro-religious freedom foreign policy . . . . [and] a 100 percent pro-life foreign policy. Our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. . . . So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year. . . we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents.”[7]

Conclusion

The Commission invited comments through July 30/31 on their draft report, and its website has so far posted 133 pages of such comments, which will be discussed in a future post. Thus, we and others need to wait to see if any of these comments prompt changes to the report.[8]

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[1] See U.S. Commission on Unalienable Rights Report, dwkcommentaries.com (July 27, 2020); Secretary Pompeo’s Reactions to U.S. Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[2] Verma, Pompeo Says Human Rights Policy Must Prioritize Property Rights and Religion, N.Y. Times (July 16, 2020); Toosi, Pompeo rolls out a selective vision of human rights, Politico.com (July 16, 2020); Borger, Pompeo claims private property and religious freedom are ‘foremost’ human rights, Guardian (July 16, 2020); Massimino & Schmitt, Pompeo’s new commission undermines universal human rights—just as planned, Wash, Post (July 17, 2020); Drezner, Let’s grade the Commission on Unalienable Rights!, Wash. Post (July 20, 2020); Senator Menendez, Menendez on Trump Administration’s Launch of Controversial Commission on Unalienable Rights’ Report (July 16, 2020).

[3] Bangs, Pompeo’s Commission on “Unalienable Rights” Prioritizes Property Over People, truthout.org (July 28, 2020); Amnesty Int’l, USA: State Department’s flawed ‘unalienable rights’ report undermines international law, amnesty.org (July 16, 2020); Rubin, The Trump administration rejects human rights principles at home and aboard, Philadelphia Inquirer (July 21, 2020); Patrick, U.S. Effort to ‘Nationalize’ Human rights Undermines Them at Home and Aboard, World Policy Review (July 27, 2020); Thoreson, US Should Focus on Rights for All, Not Rights for Some, Human Rights Watch (July 30, 2020); Human Rights Watch, Comment [on Draft Report] to Commission on Unalienable Rights (July 2020); Blitt, To Russia, With Love, Jurist (July 30, 2020).

[4] Silverstein, Introduction to 1619 Project, N.Y. Times Magazine (pp. 4-5)  (Aug. 18, 2019); “The 1619 Project” Commemorates the Arrival of Slavery in the U.S., dwkcommentaries.com (Oct. 20, 2019); Hannah-Jones, The Idea of America, N.Y. Times Magazine (pp. 14-26) (Aug. 18, 2019); We Respond to the Historians Who Critiqued The 1619 Project, N.Y. Times (Dec. 20, 2020); List of Times’ references to “1619 Project” , N.Y. Times (as of 8/2/20).

[5] Pompeo’s attack on The 1619 Project may have been precipitated or suggested by U.S. Senator Tom Cotton (Rep., AR), who has been engaged in a feud with the New York Times over its controversial publishing of his op-ed  about the use of U.S. military troops in cases of insurrection or obstruction of the laws in U.S. cities. (Tom Cotton: Send in the Troops, N.Y. Times (June 3, 2020).) One week after publication of the Commission Report, a Cotton press release said, “The . . . 1619 Project is a racially divisive, revisionist account of history that denies the noble principles of freedom and equality on which the nation was founded” as the purported justification for his introducing the Saving American History Act of 2020 to prohibit the use of federal funds to teach the 1619 Project by K-12 schools. (Cotton, Press Release: Cotton Bill to Defund 1619 Curriculum (July 23, 2020).) Soon thereafter Cotton in an interview by an Arkansas newspaper said, “As the Founding Fathers said, [slavery] was the necessary evil upon which the union was built.” (Reuters, Republican Senator Cotton Criticized for “Necessary Evil” Slavery Comment, N.Y. Times (July 27, 2020).)

[6] State Dep’t, Pompeo Speech: My Faith, My Work, My Country (July 17, 2020); Secretary Pompeo’s Reactions to the Commission on Unalienable Rights’ Report, dwkcommentaries.com (July 29, 2020).

[7] See U.S. at U.N. Global Call To Protect Religious Freedom, dwkcommentaries.com (Sept. 24, 2019); U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[8] State Dep’t, Draft Report of the Commission on Unalienable Rights: Public Comments.

 

Minnesota Attorney General Appoints Special Assistant Attorney Generals for George Floyd Cases     

On July 13, Minnesota  Attorney General appointed four pro bono Special Assistant Attorney Generals. His statement said, “Out of respect for Judge Cahill’s gag order, I will say simply that I’ve put together an exceptional team with experience and expertise across many disciplines.” They are Neal Katyal, Lola Velázquez-Aguilu, Jerry Blackwell and Steven L. Schleicher.[1]

Neal Katyal is a partner in the law firm of Hogan Lovells, an U.S.-British law firm headquartered in  Washington, D.C. and London with around 2,800 lawyers in more than 40 offices in the U.S., Europe, Latin America, the Middle East, Africa and Asia.  There he specializes in appellate and complex litigation. He also is the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. In the Obama Administration he was Principal Deputy Solicitor General and Acting Solicitor General of the United States (2009-11), which is the office responsible for representing the U.S. before the U.S. Supreme Court. He has degrees from Dartmouth College and Yale Law School and clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, and then Supreme Court Justice Stephen Breyer. Katyal also frequently appears as a commentator on legal and political issues on MSNBC.[2]

Lola Velázquez-Aguilu is a litigation and investigation attorney at Medtronic Corporation and Chair of the Minnesota Commission on Judicial Selection. She also is a former Assistant United States Attorney in Minnesota for nearly nine years, where  she worked in the white-collar and public corruption section of the criminal division and before that an associate attorney at the Minneapolis office of the Dorsey and Whitney law firm, where she represented civil litigants and criminal defendants. She also clerked for retired Minnesota Supreme Court Justice Alan C. Page and U.S. District Court Judge Ann D. Montgomery. She has served in various organizations such as the Infinity Project, Minnesota Federal Bar Association, Minnesota Hispanic Bar Association. Her B.A. and J.D. degrees are from the University of Wisconsin-Madison.[3]

Jerry Blackwell is the founding partner, CEO and chairman of the Minneapolis law firm of Blackwell Burke P.A. He is an experienced trial lawyer in federal and states courts in 47 states and other countries. He also is the founder of the Minnesota Association of Black Lawyers. His B.S. and J.D. degrees are from the University of North Carolina. Earlier this year he won the state’s first posthumous pardon for Max Mason, a Black man wrongly convicted of rape 100 years ago in Duluth. [4]

Steven L. Schleicher is a partner at the Minneapolis law firm of  Maslon and the co-Chair of its Government & Internal Investigations Group. He is an experienced trial and appellate lawyer concentrating on criminal defense, government and internal investigations and high stakes civil litigation. Previously he was an Assistant U.S. Attorney and Assistant Minnesota Attorney General, an attorney in the Winona County Attorney’s Office and a JAG Corps Officer in the U.S. Army Reserve. His B.A. degree, cum laude is from the University of Minnesota, Duluth and his J.D. degree, cum laude, from William Mitchell College of Law. Schleicher led the successful prosecution of Jacob Wetterling’s kidnapper and killer.[5]

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[1] Xiong, Attorneys for ex-Minneapolis officers object to judge’s gag order in George Floyd death, StarTribune (July 13, 2020); Minnesota Attorney General, Seasoned attorneys join AG Ellison’s team pro bono in George Floyd case (July 13, 2020).

[2] Neal Katyal, Wikipedia; Neal Katyal, Hogan Lovells; Neal K. Katyal, Georgetown University Law Center, Hogan Lovells;  Hogan Lovells, Wikipedia.

[3] Lola Velázquez-Aguilu, Linkedin, Lola Velázquez-Aguilu, Members of the Minnesota Commission on Judicial Selection.

[4] Jerry W. Blackwell, Blackwell Burke P.A. 

[5] Steven L. Schleicher, Maslon.

Important Questions for Judge Kavanaugh’s Confirmation Hearing 

                                                                                                                                        Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.

Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?

Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.

The Meaning of the Constitutional Word “Emolument”[1]

On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments  (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::

  • The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
  • The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)

After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)

The court then turned to the “Original Public Meaning”  of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):

  • An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
  • Drafters of state constitutions;
  • Blackstone’s Commentaries on the Laws of England; and
  • The Framers themselves.

Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel  and Comptroller of the United States.

 The Meaning of the Second Amendment’s Right To “Bear Arms”

The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)

The U.S. Supreme Court in  District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)

Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]

  • The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
  • The Corpus of Early Modern English, which is composed of 40,300 texts with nearly 1.3 billion words from 1475-1800.

The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.

According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”

And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Moreover, Baron pointed out that in the oral arguments  in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.

New Databases of Written Materials from Framers’ Era

In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]

Questions for Judge Kavanaugh

Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:

  1. How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
  2. What sources do you use in such attempts?
  3. Do you use computer databases of written materials from the framers’ era?
  4. If so, which ones? Why those? How many texts are in those databases?
  5. If not, why not?
  6. Have you ever used the BYU Law School’s Corpus of Founding Era American English?
  7. If not, why not?
  8. If yes, for what issue? Result?
  9. Have you ever used BYU Law School’s Corpus of Early Modern English?
  10. If not , why not?
  11. If yes, for what issue? Result?
  12. If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
  13. If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
  14. If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?

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[1] Order, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018); Opinion, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018);  LaFraniere, In ruling against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time, N.Y. Times (July 25, 2018); Racine, Frosh & Eisen, Trump’s Emoluments Trap, N.Y. Times (July 26, 2018); Marimow, O’Connell & Fahrenthold, Federal judge allows emoluments case against Trump to proceed, Wash. Post (July 25, 2018); Barbash, Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling, Wash. Post (July 27, 2018); Editorial, The framers worried about corruption. Their words may now haunt the president, Wash. Post (July 27, 2018). The judge in this case, Senior District Judge, Peter J. Messitte, holds a B.A. degree from Amherst College (1963) and a J.D. degree from the University of Chicago Law School (1966), where he was a classmate of this blogger. He was appointed to the District Court by President Clinton in 1993. In 2008 he took senior status, but carried a full caseload through 2011.

[2] Mikhail, Abstract: The Definition of ‘Emolument” in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017).

[3] Baron, Antonin Scalia was wrong about the meaning of ‘bear arms,’  Wash. Post (May 21, 2018); Brigham Young University Law School, Corpus of Founding Era American English; Brigham Young University Law School, Corpus of Early Modern English; Baron, Guns and Grammar: the Linguistics of the Second Amendment.

[4]  Allen, Alison LaCroix Leads New Law and Linguistics Project, Univ. Chicago Law School News (Feb. 2, 2015).