By Rudy Barnes, Jr.
On July 16 Secretary of State Mike Pompeo announced the first report of the Commission on Unalienable Rights. It takes its title from the libertarian ideals of life, liberty and the pursuit of happiness in the Declaration of Independence, and the report emphasizes the principles of the 1948 Universal Declaration of Human Rights of the UN (UDHR).
In announcing the report Secretary Pompeo went beyond unalienable rights to criticize violent demonstrations and the desecration of monuments as an attack on “what it means to be an American.” The report of the Commission is a commendable statement on the importance of the principles of the UDHR, but it appears it will likely be used to promote partisan objectives.
The greatest challenge for America’s democracy is balancing individual rights with the responsibility to provide for the common good. That balance has long been skewed in favor of individual rights, and there seems little prospect that America’s individualistic, materialistic and hedonistic culture will become more altruistic and responsible to provide for the common good.
American democracy seems to be coming apart at its seams. The problem is not about protecting our individual rights. It’s about reconciling the conflicting moral values of Americans on issues of race and religion that have polarized our partisan politics. Those conflicting values have undermined the common good, and they cannot be resolved by law.
President Trump has exacerbated racial conflict by sending uninvited federal agents to Democratic cities like Portland to quell domestic disturbances sponsored by Black Lives Matter. It’s now the mantra of protesters for a myriad of controversial racial issues that go beyond police reforms, from supporting protesters who destroy monuments to promoting reparations.
Religion is a factor in America’s polarized politics. Trump has gained the support of white Christians by opposing abortion and expanding religious freedom to allow discrimination against homosexuals as sinners. In supporting Trump, white Christians have sacrificed Jesus on the altar of partisan politics and divided the church along party lines defined by race.
As America approaches its elections in November, the two parties are creating the perfect political storm--one more likely to benefit Trump than Biden. Trump has proven adept at orchestrating divisive issues to mobilize his constituency. The resulting political divisions are reminiscent of those that led to the Civil War, when the church was split on the issue of slavery.
The critical issue in American politics is not about protecting the unalienable rights to life, liberty and the pursuit of happiness. It’s about the moral responsibility of Americans to provide for the common good, and that requires promoting a politics of reconciliation. Americans can assume responsibility for the common good as moral stewards of democracy if they follow the altruistic imperative to love their neighbors of other races and religions as they love themselves.
Notes:
The first report of the Commission on Unalienable Rights was issued on July 16 and is at https://www.state.gov/wp-content/uploads/2020/07/Draft-Report-of-the-Commission-on-Unalienable-Rights.pdf. The focus of the report is on human rights in foreign affairs, but the Introduction states: “...We are keenly aware that America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” (p. 7)
“Speaking as he unveiled the first report of the Commission on Unalienable Rights, Pompeo said the events roiling the United States are antithetical to the nation’s ideals. ...Pompeo had harsh criticism for the New York Times’s 1619 Project, that’s based on the history of American slavery, saying its underlying message was that “our country was founded for human bondage.”
He also criticized protesters who have yanked down statues across the country, many of them erected in honor of Confederate officers in the Civil War but also enslaving founders of the nation. “The rioters pulling down statues thus see nothing wrong with desecrating monuments to those who fought for unalienable rights — from our founding to the present day,” he said. “This is a dark vision of America’s birth. I reject it. It is a disturbed reading of history. It is a slander on our great people. Nothing could be further from the truth!” See
On An Update to the 1619 Project published by the New York Times on March 11, 2020, see https://www.nytimes.com/2020/03/11/magazine/an-update-to-the-1619-project.html.
Father Drew Christiansen, S.J., has argued why you shouldn’t dismiss Mike Pompeo’s report of human rights: It was inevitable that in these contentious times human rights would be drawn into the culture wars. For two generations, at least, opposing camps have posed their contrary visions for social change in the uncompromising terms of absolute human rights. Maximalist claims disallowed any legitimate space for the moral claims of their adversaries. Ethical nuances, juridical distinctions and prudent political compromise fell by the wayside. Moral reasoning gave way to partisan sloganeering.
So, when a year ago Secretary of State Mike Pompeo announced he was appointing a commission to rationalize the expanding field of human rights in light of the values on which the United States was founded, there were howls of indignation that the exercise threatened to run roughshod over 200 years of history, returning us to the 18th century. The secretary’s agenda seemed to call for a retrenchment on human rights under the cover of American exceptionalism.
The commissioners, led by Harvard law professor Maryann Glendon, have produced a consensus document, centrist in a sophisticated way seldom found in public documents. Contrary to the fears of Mr. Pompeo’s critics, the report does a service by synthesizing the founding documents—the Declaration of Independence and the Constitution with its Bill of Rights—with the re-founding texts of Abraham Lincoln and Reconstruction and the global human rights revolution of the 20th century centered on the Universal Declaration of Human Rights. Throughout it links freedom and equality, refusing to decouple them as many culture warriors do. The report makes the Universal Declaration of Human Rights the point of reference for articulating the place of human rights in U.S. foreign policy. In listing the ways the United States can advance human rights in foreign policy, it relies on soft power, beginning with the modeling of rights at home. In foreign policy, diplomatic measures and open communication, it says, are preferable to coercive methods like economic sanctions.
But the commissioners fail to address the multitude of rights treaties enacted since 1948, beyond the Universal Declaration. They welcome “the development of a positive law of human rights,” but air the criticism, which Secretary Pompeo seems to have embraced, that the multiplication of rights may reduce the value of any single right. “The surfeit of new treaty obligations in human rights,” the commissioners observe, “does not seem to have increased the effectiveness of human rights law nor stemmed the pervasive violations of very basic human rights around the world, even in many countries that have ratified all of the major treaties.” American political culture would surely benefit if more religious activists would devote themselves to building up the kind of civic amity the commissioners envisage. The report reminds its readers of the interaction of positive human rights law and nonbinding, often aspirational documents like the Declaration of Independence and the Universal Declaration of Human Rights, and diplomatic instruments like the Helsinki Accords, which opened the way to human rights monitoring and enforcement. It also repeatedly recalls that the very notion of human rights relies on an appeal to a higher standard of justice beyond the civil law.
But the commissioners fail to address the multitude of rights treaties enacted since 1948, beyond the Universal Declaration. They welcome “the development of a positive law of human rights,” but air the criticism, which Secretary Pompeo seems to have embraced, that the multiplication of rights may reduce the value of any single right. “The surfeit of new treaty obligations in human rights,” the commissioners observe, “does not seem to have increased the effectiveness of human rights law nor stemmed the pervasive violations of very basic human rights around the world, even in many countries that have ratified all of the major treaties.” American political culture would surely benefit if more religious activists would devote themselves to building up the kind of civic amity the commissioners envisage. The report reminds its readers of the interaction of positive human rights law and nonbinding, often aspirational documents like the Declaration of Independence and the Universal Declaration of Human Rights, and diplomatic instruments like the Helsinki Accords, which opened the way to human rights monitoring and enforcement. It also repeatedly recalls that the very notion of human rights relies on an appeal to a higher standard of justice beyond the civil law.
As to religious liberty, the report provides instructive service by rooting it in the American political tradition, especially the writings of James Madison. It does allow historical primacy for religious freedom, along with the right to property. That primacy, however, seems to reduce itself to three features of religious liberty: “as an unalienable right, an enduring limit on state power, and a protector of seedbeds of civic virtues.” See https://www.americamagazine.org/politics-society/2020/07/23/why-you-shouldnt-dismiss-mike-pompeos-report-human-rights?
One of the issues in human rights and responsibilities alluded to in the Commission’s report and in Father Christiansen’s assessment of it is the distinction between legally enforceable rights and unenforceable moral responsibilities or principles. The unalienable rights of life, liberty and the pursuit of happiness taken from the Declaration of Independence are moral ideals and not enforceable human rights; and the principles of the Universal Declaration of Human Rights (UDHR) are also ideals that are not enforceable; but the U.S. and most Western nations are parties to the International Covenant on Civil and Political Rights (ICCPR) which includes the fundamental human rights and is enforceable. By way of contrast, the U.S. is not a party to theInternational Covenant on Economic, Social and Cultural Rights (ICESCR) which describes minimum standards of public welfare or the common good as human rights. The libertarian human rights standards of the ICCPR are enforceable, while the welfare standards of the ICESCR are political aspirations that vary among nations and cannot be enforced as universal human rights. Likewise the greatest commandment to love God and our neighbors as we love ourselves is a moral imperative essential to providing the common good in a democracy and can be considered a human right, but it cannot be enforced as law. See Religion, Law and Conflicting Concepts of Legitimacy and end notes 19-23 and 29, at https://www.law.upenn.edu/live/files/5473-barnesreligion-and-conflicting-concepts-of.
Trump has described the civil disturbances in Portland as ”’worse than Afghanistan,’ Trump’s rhetoric escalated tensions with Democratic mayors and governors who have criticized the presence of federal agents on U.S. streets, telling reporters at the White House that he would send forces into jurisdictions with or without the cooperation of their elected leaders. ‘We’re looking at Chicago, too. We’re looking at New York,” he said. “All run by very liberal Democrats. All run, really, by the radical left. ...This is worse than anything anyone’s ever seen, Trump continued. ‘And you know what? If Biden got in, that would be true for the country. The whole country would go to hell.’ ...In response to the president calling Portland protesters anarchists and insinuating that local officials were afraid of them, Oregon Gov. Kate Brown said, ‘this is a democracy, not a dictatorship. We cannot have secret police abducting people in unmarked vehicles. I can’t believe I have to say that to the President of the United States.’” See
More than a dozen mayors have joined Portland in asking the Trump administration to withdraw federal forces, calling it and other federal interventions “an abuse of power.” See https://www.cnn.com/2020/07/22/us/portland-protests-mayors-withdraw-federal-forces/index.html.
Black Lives Matter is a grass-roots movement formed in Ferguson Missouri in 2014 after the police killing of Michael Brown. It began as a movement to end police brutality against blacks, and has expanded to cover a plethora of controversial racial causes, including eliminating racial disparities resulting from institutional or systemic racism and political reforms including “defunding” the police, destroying or removing monuments to those who lived in the Antebellum South, and reparations to blacks whose ancestors were slaves. Black Lives Matter has an identity problem. A recent poll indicates that a majority of Americans still support the reform of police policies to restrict the use of force, but that most oppose other racially-charged causes promoted under the banner of Black Lives Matter. See https://www.washingtonpost.com/politics/americans-support-black-lives-matter-but-resist-shifts-of-police-funds-or-removal-of-statues-of-confederate-generals-or-presidents-who-were-enslavers/2020/07/21/02d22468-cab0-11ea-91f1-28aca4d833a0_story.html?utm_campaign=wp_evening_edition&utm_medium=email&utm_source=newsletter&wpisrc=nl_evening.
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