human rights

Constitutional Rights as Human Rights?

Crosspost from Balkinization

A decade ago, lawyers in the United States who worked on cases involving mistreatment of prisoners might have talked about those cases as involving “police brutality.” The lawyers would have described them as falling under the rubric of constitutional litigation involving “civil rights” and “civil liberties.” Today, those same lawyers might describe the same mistreatment of prisoners as “torture” and a violation of “human rights.”

Does the difference in terminology matter, or is this merely a reflection of a “trendy” but superficial globalization? The shift towards the use and consideration of international human rights law by domestic advocacy groups in the United States is a fairly recent phenomenon (though one with historical precursors). As the ACLU’s website explains:

“In 2004, the ACLU created a Human Rights Program (HRP) specifically dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. HRP is part of a reemerging movement of U.S. based organizations that uses the international human rights framework in domestic rights advocacy.”

Are American constitutional lawyers talking about international human rights the legal equivalent of a pretentious francophilic suburbanite air kissing her friends and declaring the latest sweater at Target to be “très chic”? Is reference to international human rights law a useful strategy for progressive constitutional advocates, or does it simply invite criticism and attack on the grounds that dangerous and undemocratic “foreign” influences are being illegitimately injected into our legal system? Am I calling in the black helicopters here?

Accuse me of having drunk too much of the international human rights Kool-Aid if you wish, but I believe that thoughtful engagement with the broader international human rights movement by progressive constitutional advocates is good for America and good for the world. Why?

The language of international human rights has become a dominant global discourse. There are well-known criticisms of this discourse, to be sure, but the language of human rights has exerted a powerful influence on the way that people around the globe think and talk about issues of fundamental importance to the way people live their lives – from their ability to speak freely, participate in government, practice religion, shape their families and other social connections, engage with government and civil society on terms of equality, achieve the minimum conditions of material prosperity necessary for a life of dignity – water, food, shelter, medical care, education. We can’t participate in this global conversation if we don’t speak the same language as progressive advocates in other countries.

International human rights law addresses many of the same issues and concerns as U.S. constitutional law, though there are of course quite important differences between the two bodies of law. Most obviously, international law embraces a broader vision of rights including not only civil and political rights, but also economic and social rights.  In this respect, the global human rights regime echoes the framework put forth by Franklin Roosevelt in his “Four Freedoms Speech” in 1941 – freedom from want, freedom from fear, freedom of speech and expression, freedom of religion.  The drafting of important international human rights instruments in the aftermath of World War II was heavily influenced by these ideas.  Roosevelt’s concern for security – freedom from fear – as a basic human need also resonates today in attempts to balance individual liberty with the need for protection against violence, either by states or non-state actors. In the international legal order, however, freedom from fear finds its institutional home in the collective security framework of the U.N. Charter rather than in human rights law; and the tension between security and rights is no less evident in international law than national legal systems. Understanding security as a human rights issue, however, is vital to confronting many of the challenges America will face in the coming decades.

International human rights law differs from U.S. constitutional law in other important ways as well. It emphasizes personhood over citizenship as a foundation for rights (though of course, many parts of the Constitution speak of persons and people, not citizens). Its focus on human dignity finds echoes in many post World War II constitutions, but not so explicitly in the text of our own Constitution. It operates within a different institutional framework, in which litigation is often less important than documenting and publicizing abuses; raising awareness of issues; generating political pressure; lobbying and diplomacy.

Far from making international human rights law irrelevant to a progressive constitutional vision, these differences in perspective and strategy can be quite useful in rethinking a way forward in the coming decades. As Rachel Moran and David Cole, among others, discuss in their contributions to the Constitution in 2020, even progressive theories of constitutional law that place great weight on citizenship run the risk of undermining the basic dignity afforded to non-citizens.  Many of the essays in the volume address issues of economic and social inequality and inadequacy. And many address the idea of the Constitution – and constitutional rights – outside the courts.  International human rights law speaks to all of these concerns.

The United States has long been a leader in international human rights. Core international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are modeled on rights established and developed in U.S. constitutional law. Our nation has been a powerful advocate for human rights in its diplomacy and in important international fora.

Today, as many have pointed out, the United States role as a global human rights leader is imperiled. Why? Recent policies of the United States government, especially detention and interrogation in connection with the “war on terror”, have involved significant and very high-profile human rights violations. Members of the Bush Administration openly defended practices that constitute torture. In other areas of individual rights, the U.S. also does not compare favorably with other developed democracies. Death penalty? Gays in the military? Universal health care? Decent primary education? To be sure, in some areas such as free speech, the U.S. has adopted standards that are more protective of individual rights than other nations. But the United States faces serious challenges in our claims of preeminent leadership in the human rights field.  

When our Supreme Court disses foreign and international courts, the judges on those courts become less likely to care what the U.S. Supreme Court thinks. As several recent articles have pointed out, constitutional courts around the world are increasingly likely to cite the European Court of Human Rights or the Inter-American Court of Human Rights rather than the U.S. Supreme Court. As Vicki Jackson points out in her essay, when we act as if we have nothing to learn from the rest of the world, we run the risk of being left out of, and thereby unable to contribute to, the development of, a global body of law that is likely to have an important impact on U.S. interests in decades to come.

More importantly, when U.S. behavior evinces a double-standard – acting as if the rules of international human rights law apply to other countries but not to us – we increase the likelihood that other countries will claim that they, too, are not bound by these allegedly universal principles.

Like various contributors to the Constitution in 2020 volume -- including Harold Koh, David Cole, Vicki Jackson, Judith Resnik and others -- I believe the United States has a key role to play in shaping the world outside our borders. 

We will be a stronger, wealthier, and safer country in 2020 if other countries respect human rights. 

Moreover, U.S. constitutional law may well benefit from consideration of the way that similar issues are conceptualized and resolved in international human rights law. Even if we do not always cite foreign or international sources in our briefs, it is useful for progressive advocates to know something about how our counterparts in other countries conceptualize an issue.  Maybe even talk with those counterparts. Just as advocates for the abolition of slavery in the nineteenth century drew strength from transnational networks of religious and civil society groups, progressive advocates in the U.S. today may strengthen their efforts by building bridges to those advocating on similar issues in other nations.  (And a note to anyone who came upon this blog posting after googling “black helicopters”:  I’m not talking about giving up sovereignty, or being bound by the views of foreigners – I’m talking about respectfully considering the wise and considered views of others before making our own minds up.)

The United States does not and cannot exist in isolation from the rest of the world, and any vision for American constitutional law in the coming decades must recognize this fact – not incidentally, not as an afterthought, but as a fundamental part of understanding the nature of our society, our economy, and our government. 

Jenny S. Martinez is Professor of Law and Justin M. Roach, Jr. Faculty Scholar at Stanford Law School. She will be appearing on Friday's "America and the World" panel with Muneer Ahmad (Yale Law School, "Personhood in Citizenship's Shadow"), Aziz Huq (University of Chicago Law School, "The Transformative Potential of Muslim America"), and Jon Michaels (University of California Law School-Los Angeles, "Executive Authority in a post-Westphalian World").

Social Rights

Crosspost from Balkinization

For the past several weeks, I have been puzzling over the nature of the rights that my panel will address at The Constitution in 2020 conference. The panel is entitled “Social Rights”—which echoes the section of the book that I assume we are to discuss. My first instinct was that the panel would be populated with those who have thought a good deal about race, race relations, and racial equality. To my surprise, however, my fellow panelists are people who have thought a good deal about economic issues, labor organizing, and social insurance.  To me, these topics—which are indeed largely the concerns of the “Social Rights and Legislative Constitutionalism” chapters of the book—would more likely come under the rubric of “economic rights.”

My puzzling, then, has largely been about terminology. Two distinct origins of “social rights” come to mind. The first comes from 19th-century American history. The common delineation of rights into the categories “civil, political, and social” in the Reconstruction era is a frequently defining principle not only of that era but of the Jim Crow era that followed. Within that tripartite conception of rights, civil rights meant those commonly protected by the common law: rights to contract, hold property, and protect one’s property in a court of law. Political rights concerned the relationship of a person to his or her government, largely involving voting but also at times jury service. Social rights, finally, referred to rights to interact in the ordinary settings of social life, to choose one’s place in a restaurant, a neighborhood, a school.

Protection of African American rights in the wake of the Civil War and Reconstruction generally waned as one descended the ladder from civil to political to social rights. Civil rights received the earliest and most vigorous (albeit still inadequate) protection. Political rights faced greater contestation, and greater evisceration, but still found some basis in the Constitution. Social rights were the runt of the litter. As the Supreme Court made clear in its infamous decision in Plessy v. Ferguson, social rights were beyond constitutional redress. Indeed, some would have said that the essence of a social right was precisely its inability to be remedied at law. The understanding of the time was that labeling the right to sit in a particular railroad car a social right removed it from the realm of enforceability.

These labels were, of course, always fuzzy, slippery, and contestable. And they changed over time. In the 1930s, civil rights became associated closely with labor rights and rights to economic security. In the 1940s, such rights seemed constitutionally salient and possibly attainable. Social rights, however—like the right to integration—remained largely beyond the pale. Once rights that had been thought of as social rights began to gain traction in courts and legislatures, the nomenclature changed. No longer did we speak of “social rights.” They somehow became transformed, along with newly enforced political rights, into a unified category of “civil rights.” It would be too simple to say that “civil rights” encompasses those rights that are generally viewed as enforceable. But it does seem fair to observe that once social rights became protectable, they also ceased in important ways to be understood as social rights.

My second association with the term “social rights” comes from the international human rights context. There is a robust and growing literature on the relationship between American ideas about rights and international ideas about rights, between “civil rights” at home and “human rights” abroad. Much of this literature emphasizes how stingy the American conception of rights is. In response, scholars and activists have sought to expand American conceptions of rights by integrating broader understandings of international human rights into the domestic context.

This origins story refers to the kinds of “social rights” included in the International Covenant on Economic, Social and Cultural Rights—rights to work, housing, health care, social insurance, education, and the like. In the international human rights context, “economic, social and cultural rights” or “ESC rights” stand in sharp contrast to “civil and political rights.” These two categories of rights each has its own international covenant, its own monitoring committees, and its own orbit. Moreover, each has its own distinctive political salience. Although the United States has ratified the International Covenant on Civil and Political Rights (with exceptions, of course), it has never ratified the International Covenant on Economic, Social, and Cultural Rights. Indeed, the existence of the two conventions was a product of differing international opinions about the desirability and enforceability of economic, social, and cultural rights.

What has all this to do with The Constitution in 2020? A lot, it seems to me. A major theme of the chapters in the “Social Rights and Legislative Adjudication” section of the volume is the judicial unenforceability of “social rights.” With some minor exceptions, the authors of these chapters have largely given up the possibility of constitutionally based, judicially enforced rights to work, housing, health care, social insurance, and education. Some still retain a shred of hope for judicial involvement in the provision of such goods, others despair that such time has come and gone, and others affirmatively seek legislative alternatives. But overall, the view that these rights are consigned to the political branches is rather overwhelming.

On one level, I was surprised by this surrender. The Constitution in 2020 is an ambitious volume, reimagining a progressive Constitution for the future. Whatever the relative merits of legislative versus adjudicative constitutionalism, one might expect an aspirational, progressive project to include a more robust commitment to some form of constitutionally enforceable economic rights.

On another level, however, I was not surprised.  The section of the book and the title of my panel—with its nomenclature of “social rights”—already tells us that these rights will be different.  Whatever the origins of “social rights” they share one fundamental characteristic: they are unenforceable. Perhaps “social rights” sounds more palatable than the still-Communist-inflected “economic rights.” Perhaps it sounds more malleable and open to debate than “positive rights.” I imagine there are good reasons to use the term. Even so, I cannot but conclude that any attempt to provide judicially enforceable rights to the kinds of goods encompassed by the term will face as their first and most enduring obstacle the term itself.

Risa L. Goluboff is Caddell & Chapman Professor of Law and Professor of History at The University of Virginia School of Law. She will be appearing on Saturday's "Social Rights" panel with Jacob Hacker (Yale University, "The Democratic Case for Tackling Economic Inequality") and Benjamin Sachs (Harvard Law School, "Locating Union Rights").

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