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?

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.”