Tag: Thomas Jefferson

Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She  “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14th and 15th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

==============================

[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

Other Opinions About the U.S. Electoral College

A prior post discussed the July 6 Supreme Court decisions about the “faithless electors’ in the U.S. Electoral College for electing the president and vice president and initial reactions to those Supreme Court cases. Here are some additional reactions to those cases as well as other commentaries about the U.S.’ complicated system for election of a president and vice president.

Jesse Wegman[1]

Jesse Wegman, a member of the New York Times editorial board and the author of a book about the Electoral College, rightly says these recent cases did not address the issue of the continued existence of that institution, which, he says,” is rotting American democracy from the inside out.” First, it potentially can award “the presidency to the candidate who earns fewer votes among the people as a whole — which violates the fundamental premise of majority rule.” Second, it violates “the constitutional mandate of ‘one person, one vote.’ In the presidential election, the value of your vote depends on where you live. If you live in one of the half-dozen or so ‘battleground’ states, it matters hugely. If you happen to live in a ‘safe state,’ as a vast majority of Americans do, it’s effectively irrelevant.”

The Electoral College was created in the late 18th century Constitution because its “framers worried that most voters — who rarely ventured far from home and had no easy way of getting information quickly — couldn’t know enough about national candidates to make an informed decision.” However, Wegman says, the College has never worked that way with the immediate formation of national political parties.

As a result, Wegman argues, “there is no remaining rationale for the Electoral College. What remains is a system that serves no purpose other than to erase the votes of 100 million Americans every four years, making them bystanders to the most consequential election of all.” In short, amend the Constitution to eliminate the Electoral College.

Wall Street Journal[2]

A Wall Street Journal editorial also points out that these new cases do not “address the most controversial question about the Electoral College, which is whether the U.S. should have one at all.”

The editorial, however, does not address that issue either. Instead, it discusses the National Popular Vote Interstate Compact whereby some states agree to grant their electors to the winner of the nationwide popular vote and which presumably is valid under the Opinion of the Court. However, says the Journal, Justice Thomas in his concurring opinion, points out that the Constitution in the last clause of Article I, Section 8, states, “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State.”

In any event, that compact currently has 16 members (15 states and the District of Columbia) with a total of 196 electoral votes and by its terms would go into effect when enough additional states join to constitute a majority of the Electoral College (270 votes).

Richard L. Hasen[3]

 Just before these Supreme Court decisions, Richard L. Hasen, a professor of law and political science at the University of California, Irvine and the author of a leading book on problems of the U.S. election system, noted several problems with that system.

  • First, it “features deep fragmentation of governmental authority over elections. Not only does the United States use a highly decentralized and localized election system that gives many powers over national elections to state and local bodies, but also, even within the approximately 10,500 bodies expected to run the 2020 election, there is sometimes disagreement over who has decision making authority over voting rights decisions.”
  • Second, “protection of voting rights in the United States is marked by polarized and judicialized decision making.”
  • Third, U.S. “ constitutional protections for voting rights remain weak. The U.S. Constitution contains no affirmative right to vote. It speaks of voting rights mostly in the negative: thanks to a number of constitutional amendments, it is now illegal to bar someone from voting on the basis of race, gender, age of at least 18, or through the use of a poll tax.”
  • Fourth, this “decentralized, federalist approach to voting rights has led to a self-perpetuating system of voting inequality, where in some places you may be disenfranchised even if you do everything right.”

Therefore, Hasen proposes the following short-term remedies. “All states need to expand opportunities for online voter registration in time” for this November’s presidential election. . . . Congress needs to adequately fund additional expenses related to running an election during the pandemic. . . .  States need to form independent bipartisan task forces to conduct full and independent investigations into why areas with more poor voters and voters of color saw significant problems voting in person during the primaries.”

In addition, Hasen advocates for a new constitutional amendment that would “guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.

 Wilfred Codrington III [4]

Last year Codrington, a Fellow at the Brennan Center for Justice at NYU School of Law, pointed out a racist motivation for the creation of the Electoral College at the Constitutional Convention.

“The populations in the North and South were approximately equal, but roughly one-third of those living in the South were held in bondage. Because of its considerable, nonvoting slave population, that region would have less clout under a popular-vote system. The ultimate solution was an indirect method of choosing the president, one that could leverage the three-fifths compromise, the Faustian bargain they’d already made to determine how congressional seats would be apportioned. With about 93 percent of the country’s slaves toiling in just five southern states, that region was the undoubted beneficiary of the compromise, increasing the size of the South’s congressional delegation by 42 percent. When the time came to agree on a system for choosing the president, it was all too easy for the delegates to resort to the three-fifths compromise as the foundation.”

This racial impact affected the election of 1800, when Thomas Jefferson defeated John Adams, 73-65 in the Electoral College and “metaphorically rode into the executive mansion on the backs of slaves,” according to a Yale Law School professor, Akhil Reed Amar.

In the 1876 presidential election, Democrat Samuel Tilden won the popular vote but not the Electoral College vote due to disputes about the status of some electors. An ad hoc commission ultimately awarded the disputed electors to Republican Rutherford Hayes with his agreeing to remove federal troops in the South that were intended to maintain order and protect black voters.

Max Boot[5]

Boot, an historian and Washington Post columnist, reports that he recently participated in a “war game” over a hypothetical narrow Biden victory in the Electoral College, 278-260, including narrow wins in three swing states—Michigan, Wisconsin and Pennsylvania—where Republicans control both houses of their legislatures. Although all three states have Democratic governors, who usually certify election results, there is nothing to prevent the legislatures from certifying different results, especially if Trump “will stop at nothing to avoid the stigma of being branded a ‘loser’” and if hypothetically he and his allies concocted allegations of election fraud in those three states. The resulting dispute over these three states and hence the results of the election could well end up in the Supreme Court, and who could predict how they might resolve the dispute, given what it did in the 2000 election contest between George W. Bush and Al Gore.

A related concern is whether local, state and federal funding for the expenses of conducting the upcoming election in this pandemic will be adequate. This especially is true for the U.S. Postal Service with the anticipated mailing of election ballots.

David Rothkopf[6]

A lot of these current issues about the Electoral College are prompted by the outrageous conduct of our current president, Donald Trump, who is the “embodiment of the Founders’ worst fears.” So says David Rothkopf, a former professor of international affairs at Columbia University, Johns Hopkins and Georgetown University, former CEO and editor-in-chief of Foreign Policy magazine and a senior official in the Clinton Administration.

Rothkopf continues, Trump “has invited our enemies to interfere with our elections to help him win, then sought to do it again. He has misused federal resources, inappropriately elevated his own family members, and enriched his own businesses. He has repeatedly attacked the First and the Fourteenth Amendments. He has had infants thrown in cages and denied relief to Puerto Rico in the wake of Hurricane Maria at the cost of thousands of lives. He has gutted environmental protections and attacked alliances that the US spent decades building and maintaining. And now he has mismanaged the worst public health crisis in a hundred years, overseen the greatest economic crisis since the Depression, and attempted to use the US military to crush legitimate protests on the streets of the capital.”

Moreover, “in the space of just a few days, . . . [Trump] was revealed to have endorsed concentration camps in China and to have again sought the assistance of a foreign adversary in winning a US election, was quoted as calling for the deaths and imprisonment of US journalists, defended the slave power traitors of the Confederacy, admitted that he suppressed testing during the pandemic because true data about the rate of infections would harm him politically, sought to fire more truthtellers in the administration and had his attorney general remove an official in charge of investigations into him and his supporters. He was reportedly briefed about a Russian scheme to place bounties on American and allied troops in Afghanistan, and not only did nothing about it but continued to act as an advocate for Putin. And so it goes on… before we even consider the many complaints about his character—his racism and misogyny, his ignorance and contempt for science and history, his lies, his narcissism, his vulgarity, his demagoguery. Has there ever been a public official in US history so unable to relate to others, show an emotion besides anger, or view the world through any means but his own self-interest?”

Conclusion

 Support a constitutional amendment to abolish the Electoral College!

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[1] Wegman, Can We Please Pick the President by Popular Vote Now? N.Y. Times (July 6, 2020)

[2] Editorial, States and the Electoral College, W.S. J. (July 6, 2020); Kendall & Bravin, Supreme Court Rules States Can Prohibit Electors From Breaking Rank, W.S.J. (July 6, 2020); Astor & Stevens, Did the Popular Vote Just Get a Win at the Supreme Court? N.Y. Times (July 6, 2020); National Popular Vote, nationalpopularvote.com.

[3] Hasen, Bring on the 28th Amendment, N.Y. Times (June 29, 2020).  Since there are now 27 amendments to the U.S. Constitution, this article calls for a 28th amendment even though an existing non-profit organization has drafted and is promoting what it calls the 28th Amendment “to end the escalating influence of big money that dominates our elections . . . [by enabling} Americans to enact reasonable limits on campaign contributions and dark money political spending [and] reversing the 2010 Supreme Court Citizens United decision.” (American Promise, The 28th Amendment.)

[4] Codrington, The Electoral College’s Racist Origins, The Atlantic  (Nov. 17, 2019); 1800 United States presidential election, Wikipedia.

[5] Boot, What if Trump loses but insists he won? Wash. Post (July 6, 2020); Reuters, ‘Epic failure’: U.S. Election Officials Warn of November Chaos Due to Budget Crunch, N.Y. Times (July 10, 2020); McCarthy & Jameel, The Postal Service Is Steadily Getting Worse—Can It Handle a National Mail-In Election?, propublica.org (June 15, 2020). See also Will Upcoming U.S. Presidential Election Be Legitimate? dwkcommentaries.com (July 5, 2020).

[6] Rothkropf, “The Most Ignorant and Unfit’: What Made America’s Worst Ever Leader? N.Y. Rev. Books (July 3, 2020).

 

 

Human Rights Commentaries by Mary Ann Glendon, Chair of the Commission on Unalienable Rights

A prior post reviewed the limited public record (to date) of the first meeting on October 23 of the Commission on Unalienable Rights.

To gain a better understanding of what to expect from the Commission, this blog will examine two recent commentaries on human rights by, and an interview of, the Commission’s Chair, Mary Ann Glendon, the Learned Hand Professor of Law at the Harvard Law School, the author of a major book about the development of the Universal Declaration of Human Rights (UDHR) [1] and a prominent Roman Catholic who was U.S. Ambassador to the Vatican in the George W. Bush Administration. The Conclusion will evaluate her comments and those made by others at the first meeting.

Reclaim Human Rights (August 2016) [2]

Glendon began this article by acknowledging that she had been a participant in the Ramsey Colloquium’s 1998 affirmation of the UDHR as “the most available discourse for cross-cultural deliberation about the dignity of the human person” and as making “possible a truly universal dialogue about our common human future.” [3] She also affirmed she was “a longtime supporter of the cautious use of rights language, and a frequent critic of its misuses.”

Nevertheless, Glendon said that a 2016 criticism of human rights by R.R. Reno, the editor of First Things, [4] caused her to “ponder whether the noble post-World War II universal human rights idea has finally been so manipulated and politicized as to justify its abandonment by men and women of good will.”

According to Glendon, by “1998, governments and human-rights organizations alike were ignoring the fact that the UDHR was constructed as an integrated document whose core fundamental rights were meant to be ‘interdependent and indivisible.’ [However, by 1998, the] sense of the interdependence among rights and the connections between rights and responsibilities was fading.” Moreover, “a host of special-interest groups [were inspired] to capture the moral force and prestige of the human-rights project for their own purposes. . . .[The] core of basic human rights that might be said to be universal was being undermined by ‘multiplying the number of interests, goods, and desires that are elevated to the status of rights.”

As a result, by 2016, she argues, “the post-World War II dream of universal human rights risks dissolving into scattered rights of personal autonomy.”

Reno’s criticism of human rights, Glendon continues, emphasizes “the way that human rights as an ideology detracts from the difficult and demanding work of politics.” This is especially true in the U.S., she says, as “judicially-created rights have displaced political judgements that could and should have been left to the ordinary processes of bargaining, education, persuasion, and voting.” This has damaged “the American democratic experiment” by making it more difficult to correct an unwise judicial decision, intensifying “the politicization of the judicial selection process,” depriving “the country of the benefits of experimentation with different solutions to difficult problems” and accelerating “the flight from politics.”

Glendon concludes by urging “church leaders and people of good will to make every effort to connect the human-rights project to an affirmation of the essential interplay between individual rights and democratic values. We should insist on the connection between rights and responsibilities. And we should foster an appreciation of the ultimate dependence of rights upon the creation of rights-respecting cultures.”

 “Renewing Human Rights” (February 2019) [5]

“When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first ‘international bill of rights’” (the subsequent UDHR), the “idea that some rights could be universal—applicable across all the world’s different societies—was controversial.”

“Yet in the decades that followed, the UDHR . . . successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny.”

“But now . . . the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.”

As Glendon sees it, “there were three stages” to this change: [1] a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era [U.S. and U.S.S.R.]; [2] an over-extension of the concept once the human rights idea showed its moral force; and [3] a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.”

“The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.”

These changes brought about “an interventionist approach, backed by Western—especially American—power. . . .  The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the ‘Responsibility to Protect,’ reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards. . . .  This encouraged an expansion in the number of basic rights.”

“Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.”

Some states now object to “uniform methods of interpreting and implementing” human rights treaties and to “supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances.”

According to Glendon, the following “four major principles that the UDHR’s framers followed [in 1947-48] can reinvigorate the human rights idea in our own time:”

  • “Modesty concerning universality. “The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.”
  • “Flexible universalism.” The UDHR framers “understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements.” For example, . . . [UDHR’s] Article 22 provides: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’ (Emphasis added.) Another example is Article 14, which states, ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution,’ but is silent on how that right should be protected.
  • “Interdependence of basic rights.” The UDHR makes it clear “that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society. . . . The framers of the [UDHR] did not expect uniform management of tensions or conflicts between rights. . . . [and instead] assumed that communities must balance the weight of claims of one right versus another before determining the best course of action.” Only a few rights do not allow such variation: “protections for freedom of religion and conscience” as well as “prohibitions of torture, enslavement, degrading punishment, . . .retroactive penal measures, and other grave violations of human dignity.”
  • “Subsidiarity.” Emphasis on “the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entitles are incapable.” This principle, as stated in the UDHR’s Proclamation, also calls on “every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms.”

Glendon concludes by arguing for a new human rights goal: “the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. This would at least include “protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.”

Glendon Interview [6]

On August 3, 2019, Glendon was interviewed by Jack Goldsmith, another Harvard Law School professor of international law. Here are her comments that were not already expressed in the above articles.

She said there was confusion and crisis in human rights with roughly half of the world’s population without any rights and exasperated by disappointing performance of international human rights institutions.

Socrates said that definition of terms was the beginning of wisdom, and this is especially important since human rights are now important parts of U.S. foreign policy.

The concept of “unalienable rights,” which the printer of the original Declaration of Independence substituted for Thomas Jefferson’s draft’s use of “inalienable,” has evolved with the U.S. Bill of Rights (the first ten amendments to the Constitution) and the words of Abraham Lincoln and Martin Luther King, Jr.

While the U.S. Declaration of Independence talked about “laws of nature” or pre-political rights, the UDHR is grounded in the world’s religious and philosophical traditions.

Glendon emphasized the civil and political rights in the UDHR were interdependent with economic and social rights and pointed to the New Deal and the preambles of many U.S. statutes on economic and social issues as expressing this interdependence. This also is stated in Article 22 of the UDHR: ‘Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.’” (Emphasis added.) This provision rejected the Soviet Union’s position that the state was solely responsible for such rights with Eleanor Roosevelt saying during the deliberations over the UDHR that no one had figured out how to do that without loss of freedom.

Another emphasis of Glendon was on the UDHR Proclamation’s words: ‘every individual and every organ of society, Keeping the [UDHR] constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of [U.N.] Member States themselves and among the peoples of territories under their jurisdiction.” Or as Judge Learned Hand said, ‘The spirit of liberty will die if not in the hearts of the people.’

Reactions

 Glendon’s primary focus in these two articles and interview is the UDHR, which is mentioned as one of two  guiding authorities for the Commission on Unalienable Rights, but Glendon has less to say about the U.S. Declaration of Independence, which is the other guiding authority for this Commission.

We all should seek to follow her emphasizing the UDHR’s interdependency of civil and political rights with economic and social rights and the importance of every individual and every organ of society striving by teaching and education to promote respect for human rights and freedoms.

The UDHR indeed is an important international human rights instrument. But it is a declaration adopted by the U.N. General Assembly in 1948. It does not by itself establish legal obligations on any nation state or other person.

In any event, Glendon says nothing about another provision of the UDHR’s Proclamation: “every individual and every organ of society , keeping this Declaration constantly in mind, shall strive . . . by progressive measures, national and international, to secure [these rights and freedoms] universal and effective recognition and observance.” (Emphasis added.) In other words, the UDHR itself contemplated that there should be additional measures, including national legislation and international treaties, to secure the rights and freedoms articulated in the UDHR and, by implication, that these other measures will include “rights” language. Moreover, under the principle of “flexible universalism,” a developed and wealthy country like the U.S. could well find ways to secure the rights mentioned in the UDHR that are more complex than those in other countries.

A similar principle for the Commission exists in the U.S. Declaration of Independence.  It says, as the Commission emphasizes, “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.” But the very next sentence of the U.S. Declaration says, but the Glendon and the Commission ignore, “That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” (Emphasis added.) In other words, the U.S. Declaration contemplates that the not yet established U.S. government subsequently will enact statutes that protect the unalienable rights, only three of which are specifically mentioned in the Declaration.[7] These are not “ad hoc” rights as Secretary Pompeo likes to say.

As a result, after the 1948 adoption of the UDHR, various U.N. organizations have drafted and adopted many international human rights treaties,[8] and the U.S. federal and state governments have adopted many human rights statutes and regulations.

This obvious point is surprisingly overlooked by Glendon when she lauds UDHR’s Article 14 on the right to asylum as an example of flexible universalism because it does not say how that right should be protected. But the 1951 Convention Relating to the Status of Refugees that entered into force on April 22, 1954, defines”refugee” and specifies many conditions for that protection while limiting reservations under Article 42. Presumably she is not arguing that this treaty was a mistake.

Indeed, we should all celebrate, not complain as Secretary Pompeo likes to do, that there has been such proliferation or in Glendon’s words, “too much contemporary emphasis on ‘rights’ language. These arguments by Pompeo and Glendon can be seen as underhanded ways to cut back or eliminate rights that they do not like, which I assume would include abortion and LGBQ rights. Such rights constantly are criticized by her church (Roman Catholic) and by the Commission’s creator, Secretary of State Michael Pompeo, and others in the State Department.[9]

Criticism of Glendon’s apparent adherence to traditional Roman Catholic teachings on some of these issues comes from her successor as U.S. Ambassador to the Vatican in the Obama Administration, Miguel Diaz, along with 128 Catholic activists and leaders, in a letter opposing the Commission. [10] They said, “Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world. Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Our faith and our commitment to the principles of democracy require us to view every person on earth as a full human being. We staunchly support the fundamental human rights of all people and proudly carry on the long tradition in our country of advocating for expanding human rights around the world,” they write. “Our concern is that this Commission will undermine these goals by promoting a vision of humanity that is conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world. Of most urgent concern is that the composition of the Commission indicates that it will lead our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services. This is being done “in the name of a very partial version of Christianity that is being promoted by the current Administration.” “All human beings,” however, “have been created in God’s image and all have been endowed by their Creator with the fundamental right to Life, Liberty, and the pursuit of Happiness. No person speaking in the name of government or in the name of God can do so to undermine or to deny this right.”

Nor does Glendon discuss how to resolve conflicts among rights. For example, the U.S. Declaration’s mention of “life” as one of the “unalienable rights” is taken by some, and probably Glendon, as a basis for arguing there should be no right to an abortion. But an abortion may be necessary to protect an expectant woman’s right to “life” or her “pursuit of happiness.”  How are those conflicts resolved? That is why we have federal and state and international courts and agencies to resolve these conflicts or disputes.

The previously cited “four major principles” of the UDHR are worthy of remembering and guiding future human rights, internationally and domestically.

Glendon, however, fails to acknowledge the continued use of the “flexible universalism” principle in human rights treaties that allow for their ratification by nation states with reservations for at least some of the treaty’s provisions. And, of course, a state may chose not to ratify a treaty and thereby not be bound by any of its provisions. [11] Moreover, there are mechanisms for other states and international agencies to address these reservations and non-ratifications. For example, in the U.H. Human Rights Council’s Universal Periodic Review process, the Council and other states may, and do, make recommendations for states to withdraw reservations or ratify certain treaties. The same was done by the Council’s predecessor, the U.N. Human Rights Committee.[12]

The words of Professor Michael McConnell from the Commission’s first meeting should also be remembered in this evaluation of its ongoing work. He warned that the term “‘unalienable rights,’ which comes to us from our country’s protestant reform traditions, has never had a common or precise definition. The phrase identifies a philosophical concept, rather than a concrete set of rights.  And while the concept often prioritizes freedom of religion, McConnell cautioned that our founders were ultimately more concerned with freedom of conscience, which includes but is not limited to a narrow understanding of religious freedom.”

“McConnell also recognized the implicit failures of this philosophical approach.  While the term ‘unalienable rights’ makes for inspirational prose, the philosophical concept behind it embraced our country’s original sin of slavery and denied women full standing in society. Concepts of equal protection could not, and did not, exist at this time, under this philosophical tradition.”

Andrea Schmitt of the Center for American Progress who attended  the Commission’s first meeting also had words of wisdom for the Commission. She said, “It is simply wrong-headed and ultimately self-defeating to create an artificial human rights hierarchy — one that strips away the universality of human rights and puts a limited number of political and religious rights above all others.  Indeed, this enterprise stands to harm religious freedom itself, as it gives philosophical justification to theocratic governments and religious majority populations who are, by far, the leading persecutors of religious minorities around the world.”

We all should thank Professor Glendon for her expertise and willingness to serve as Chair of the Commission. Those of us interested in international human rights need to carefully follow the Commission’s deliberations and eventual reports and express our agreements and disagreements with respect and reasoned arguments.

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[1] Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001); The Importance of the Universal Declaration of Human Rights, dwkcommentaries.com (July 11, 2019).

[2] Glendon, Reclaim Human Rights, First Things (Aug. 2016).

[3] The Ramsey Colloquium apparently published reflections about early Christianity’s treatment of homosexuality. (Graeser, The Ramsey Colloquium and Other First Things Resources, Mars Hill Audio (June 29, 2001).

[4] Reno, Against Human Rights, First Things (May 2016). Reno is a former professor of theology and ethics at Creighton University, a Jesuit institution until 2010 when he became the editor of First Things. In 2004 at age 45 he left the Episcopal Church to join the Roman Catholic Church and  describes himself as a theological and political conservative. First Things, which describes itself as“America’s most influential journal of religion and public life,” is published by the Institute on Religion and Public Life, an interreligious, nonpartisan research and educational 501(c)(3) organization. The Institute was founded in 1989 by Richard John Neuhaus and his colleagues to confront the ideology of secularism, which insists that the public square must be ‘naked,’ and that faith has no place in shaping the public conversation or in shaping public policy.” The Institute’s mission is to articulate a governing consensus that supports: a religiously pluralistic society that defends human dignity from conception to natural death; a democratic, constitutionally ordered form of government supported by a religiously and morally serious culture; a vision of freedom that encourages a culture of personal and communal responsibility; and loyalty to the Western tradition that provides a basis for responsible global citizenship.”

[5]  Glendon & Kaplan, Renewing Human Rights, First Things (Feb. 2019) The co-author, Seth D. Kaplan, is a professorial lecturer at the Paul H. Nitze School of Advanced International Studies at John Hopkins University. He is a consultant to organizations such as the World Bank, USAID, State Department, United Nations and African Development Bank.

[6] Howell, The Lawfare Podcast: Mary Ann Glendon on Unalienable Rights, Lawfare (Aug. 3, 2019).

[7] See The U.S. Declaration of Independence’s Relationship to the U.S. Constitution and Statutes, dwkcommentaries.com (July 5, 2019).

[8] As of 2009, there were at least the following significant multilateral human rights treaties: (1) U.N. Charter; (2) International Covenant on Economic, Social and Cultural Rights; (3) First Optional Covenant to the International Covenant on Civil and Political Rights; (4) Covenant on the Prevention and Punishment of the Crime of Genocide; (5) Convention Relating to the Status of Refugees; (6) Protocol Relating to the Status of Refugees; (7) International Convention on the Elimination of All Forms of Racial Discrimination; (8) Convention on the Elimination of All Forms of Discrimination against Women; (9) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; (10) Convention on the Rights of the Child; (11) Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the elimination of the death penalty; (12) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; (13) Statute of the International Court; and (14) International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. (Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 33-35 (Lexis/Nexis 4th edition 2009).)

[9] See, e.g.,  U.S. Opposition to “Abortion” and “Sexual and Reproductive Health and Rights” at U.N. High-Level Meeting, dwkcommentaries.com (Sept. 25, 2019).

[10] White, Former U.S. envoy to Vatican opposes new commission headed by predecessor, Crux (Jul. 23, 2019).

[11] Under international law, “A State may, when signing, ratifying, accepting, approving, or acceding to a treaty, formulate a reservation unless (a) the reservation is prohibited by a treaty; (b) the treaty provides that only specified reservations, which do not include the reservation  in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties, arts. 19 (1980); id. Arts. 2(1) (d),20, 21, 22 )  See also,e.g., these posts to dwkcommentaries.com: Multilateral Treaties Signed, But Not Ratified, by the U.S., dwkcommentaries.com (Feb. 12, 2013); Multilateral Human Rights Treaties That Have Not Been Signed and Ratified by the U.S., dwkcommentaries.com (Feb. 16, 2013).

[12] See, e.g., these posts to dwkcommentaries.com: U.H. Human Rights Committee’s Review of U.S. Human Rights (April 19, 2014); U.N. Human Rights Committee’s Hearings About U.S. Human Rights (April 21, 2014); U.N. Human Rights Committee‘s Concluding Observations on U.S. Human Rights (April 24, 2014); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: Background (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The Pre-Hearing Papers (June 12, 2018); Cameroon’s Human Rights Record Being Subjected to Universal Periodic Review by U.N. Human Rights Council: The UPR Hearing (June 16, 2018); U.N. Human Rights Council’s Final Consideration of Cameroon’s Universal Periodic Review (Sept. 20, 2018).

 

 

 

The Tragic Extinguishment of the Eloquence of Robert F. Kennedy

Robert F. Kennedy

Most Americans remember or know about Robert F. Kennedy or “RFK” (1925-1968): brother to U.S. President John F. Kennedy, U.S. Attorney General in his brother’s administration, U.S. Senator from New York, candidate for the Democratic presidential nomination in 1968, and assassinated by Sirhan Bishara Sirhan  on June 6, 1968, at a Los Angeles hotel campaign event.

Less generally remembered or known was RFK’s eloquence, undoubtedly aided by his speechwriters: Adam Walinsky,  Richard Goodwin and Allard Lowenstein.[1]

One prominent example of Kennedy’s eloquence occurred on April 4, 1968, immediately after the assassination of Rev. Martin Luther King, Jr.  Speaking to a campaign crowd in Indianapolis, Indiana, Kennedy shocked everyone by announcing the news of the assassination and then went on to refer to his own grief at the 1963 assassination of his brother, President John F. Kennedy. Robert added, “My favorite poet was Aeschylus. He once wrote: ‘Even in our sleep, pain which cannot forget falls drop by drop upon the heart, until in our own despair, against our will, comes wisdom through the awful grace of God.’”[2]

Kennedy that night went on to say, “What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black. . . . Let us dedicate ourselves to what the Greeks wrote so many years ago: ‘to tame the savageness of man and make gentle the life of this world.’”

The next day in Cleveland, Ohio, Kennedy spoke against the “mindless menace of violence in America which again stains our land and every one of our lives.” He added, “Yet we know what we must do. It is to achieve justice among our fellow citizens. . . . We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for advancement of others. . . . We must admit in ourselves that our own children’s future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge.”[3]

Two other examples of his eloquence were inscribed on Kennedy’s memorial  in Virginia’s Arlington National Cemetery:

  • “It is from numberless diverse acts of courage and belief that human history is shaped each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current that can sweep down the mightiest wall of oppression and resistance.” (University of Cape Town, South Africa, June 6, 1966)
  • “Some men see things as they are and ask ‘Why?’ I dream things that never were and ask, ‘Why not?'” (1968)

Yet others were included in the previously mentioned June 6, 1966, speech at the University of Cape Town. They all seem, to this observer, to be indirect references to Jesus’ injunction “to love God with all your heart, mind and soul and your neighbor as yourself” and to the Christian notion of vocation.[4] They are the following:

  • “First is the danger of futility; the belief there is nothing one man or one woman can do against the enormous array of the world’s ills — against misery and ignorance, injustice and violence. Yet many of the world’s great movements, of thought and action, have flowed from the work of a single man. A young monk began the Protestant reformation, a young general extended an empire from Macedonia to the borders of the earth, and a young woman reclaimed the territory of France. It was a young Italian explorer who discovered the New World, and 32-year-old Thomas Jefferson who proclaimed that all men are created equal. “Give me a place to stand,” said Archimedes, “and I will move the world.” These men moved the world, and so can we all.” (Emphasis added.)
  • “Let no one be discouraged by the belief there is nothing one person can do against the enormous array of the world’s ills, misery, ignorance, and violence. Few will have the greatness to bend history, but each of us can work to change a small portion of events. And in the total of all those acts will be written the history of a generation.” (Emphasis added.)
  • “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.” (Emphasis added.)
  • “Few men are willing to brave the disapproval of their peers, the censure of their colleagues, the wrath of their society. Moral courage is a rarer commodity than bravery in battle or great intelligence. Yet it is the one essential, vital quality for those who seek to change a world that yields most painfully to change.” (Emphasis added.)

Conclusion

I weep again at our loss of this inspiring, eloquent and passionate man. How I wish he were still here and our president so that we did not have to listen to the constant falsehoods and drivel from the man who now ineptly occupies that office.

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[1] Larry Tye, Bobby Kennedy: The Making of a Liberal Icon at 373 (Random House; New York, 2016).

[2] Edwin O. Guthman & C. Richard Allen (eds.), RFK: Collected Speeches at 355-58 (Viking; New York, 1993). See Aeschylus on Suffering and Wisdom, dwkcommentaries.com (Feb. 10, 2014).

[3] Guthman & Allen at 358-62.

[4] Tye at 410-12; Guthman & Allen at 231-46. See Another Perspective on the Parable of the Good Samaritan, dwkcommentaries.com (July 27, 2017).

Caveats to Celebration of the American Declaration of Independence

July 4, 1776, is a treasured date in American history with the Continental Congress’ adoption of the Declaration of Independence. It stirringly says, “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.”

The creation and adoption of this document deserves the annual celebration it receives in the United States of America and around the world.

There, however, should be caveats to that celebration.

First, as others have pointed out, the Declaration did not condemn slavery which is not surprising since there were many slaves in the colonies.

Moreover, as Robert G. Parkinson, Assistant Professor of History at Binghamton University, argues, the failure to condemn slavery was no accident.[1]

First, the draft of the Declaration by Thomas Jefferson, a slave owner himself, contained an attack on King George III for imposing slavery on the colonists, but those words were deleted in the final document by the Continental Congress.

Second, the Declaration’s lengthy bill of particulars against the King that justified the colonists’ declaration of independence ended with these words:

  • “He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” (Emphasis added.)

According to Parkinson, “in the context of the 18th century, ‘domestic insurrections’ refers to rebellious slaves.” This provision in the bill of particulars was inserted, says Parkinson, “because in the 15 months between the Battles of Lexington and Concord and independence, reports about the role African-Americans and Indians would play in the coming conflict was the most widely discussed news. And British officials all over North America did seek the aid of slaves and Indians to quell the rebellion.”[2]

Important in this “inciting” of “domestic insurrections” was the November 14, 1775, proclamation by the Royal Governor of the Colony of Virginia offering freedom to slaves who would leave their masters and join the British side. Although only an estimated 800 slaves immediately joined the British in Virginia as a result of this Proclamation, eventually as many as 30,000 slaves throughout the colonies did so and worked as soldiers, laborers, pilots, cooks, and musicians for the British.[3]

After the end of the American Revolutionary War in 1783, the British evacuated all of their personnel from Manhattan plus 3,000 former black slaves or Black Loyalists who were listed in “The Book of Negroes.”[4]

Parkinson’s fascinating article has created another project for me: reading his book, “The Common Cause: Creating Race and Nation in the American Revolution” (2016); re-reading Pauline Maier’s book, “American Scripture: Making the Declaration of Independence” (1997); and writing blog posts to summarize the results of this and other additional research.

===================================================

[1] Parkinson, Did a Fear of Slave Revolts Drive American Independence?, N.Y. Times (July 4, 2016).

[2] The Fate of Black British Loyalists in the American Revolutionary War, dwkcommentaries.com (Feb. 19, 2013).

[3] Ibid.

[4] The American Revolutionary War’s End in New York City, 1783, dwkcommentaries.com (Oct. 14, 2012); The Fate of Black British Loyalists in the American Revolutionary War, dwkcommentaries.com (Feb. 19, 2013). The historical “Book of Negroes” became an inspiration for a novel with the same name (in Canada (but “Someone Knows My Name” in the U.S.) by Canadian author, Lawrence Hill. (The Black British Loyalists Through the Eyes of Novelist Lawrence Hill, dwkcommentaries.com Feb. 21, 2013): Further Reflections on “The Book of Negroes” Novel, dwkcommentaries.com (Feb. 23, 2013).)