Abstract
The Chapter discusses the relationship in United States law between State, Federal and international authorities on universal human rights. All U.S. State constitutions and the Federal Constitution recognize the “inherent” or “inalienable” rights of humanity. Yet despite having long accepted the binding force of universal human rights, United States courts and public officials have been hesitant to recognize non-U.S. authorities when identifying, interpreting, or enforcing these rights in practice. The U.S. government and courts view most international treaties and declarations concerning universal human rights as simple restatements of existing constitutional guarantees. United States courts and public officials have generally weighed foreign evidence of the requirements of universal human rights according to the legitimacy, importance, and probative value of the source. The undemocratic and illiberal nature of many international institutions makes it unlikely that the United States Federal or State legal systems will cede final control over such questions to non-U.S. or multinational authorities at any time in the near future.
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Notes
- 1.
- 2.
On these and other antecedents of the American declarations of rights, see Schwartz (1992).
- 3.
For a collection of such texts, see Mari (1949 Cf.), Morsink (1999).
- 4.
See, e.g., Message of President Jimmy Carter to the United States Senate, February 23, 1978 (concerning the International Convention on the Elimination of All Forms of Racial Discrimination, signed on behalf of the United States on September 28, 1966; The International Covenant on Economic, Social and Cultural Rights, signed on behalf of the United States on October 5, 1977; The International Covenant on Civil and Political Rights, signed on behalf of the United States on October 5, 1977; and the American Convention on Human Rights, signed on behalf of the United States on June 1, 1977).
- 5.
See, e.g., id. and U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Congressional Record S4781-01 (daily ed. April 2, 1992).
- 6.
This point is clarified in the Tenth Amendment (to the US Constitution) (1971).
- 7.
These may be found easily on-line through the various State websites.
- 8.
For example, in California all members of the legislature, and all public officials and employees, executive, legislative, and judicial, except such inferior officers and employees as may be by law exempted, must “before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation.” The oath reads: “I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter” (Constitution of the State of California, Art. 20). California public officials must further swear or affirm that they belong to no party or organization that advocates the overthrow of the government by force or violence.
- 9.
Preamble of the “Bill of Rights” as proposed by the United States Congress to the States (March 4, 1789).
- 10.
James Madison discussed this viewpoint in his speech to the Congress proposing a Bill of Rights. The Annals of Congress, House of Representatives, First Congress, 1st Session (June 8, 1789), 449.
- 11.
- 12.
The Constitution itself referred to the “privileges and immunities of citizens in the several states,” the US Constitution (1787), Art. IV § 2.
- 13.
See Calder v. Bull for those acts “which the Federal, or State, Legislature cannot do, without exceeding their authority.”
- 14.
James Madison saw this already when he proposed the Bill of Rights to the First Congress and observed that he thought “there is more danger of those powers being abused by the State Governments than by the Government of the United States.” James Madison, in The Annals of Congress, House of Representatives, First Congress, First Session (June 8, 1789), 458. For “the great rights of mankind,” see 449.
- 15.
The State v. Claiborne, 340–341. “An emancipated slave is called a freeman in common parlance… but in reference to the conditions of a white citizen, his condition is still that of degraded man, aspiring to no equality of rights with white men, and possessing a very few only of the privileges pertaining to a ‘freeman’.”
- 16.
Constitution of the State of Tennessee of 1835, Art. I, Declaration of Rights, section VIII. Cf. Magna Carta, chapter 39.
- 17.
For the vast literature on the antebellum conflict over fundamental human rights, see Barnett (2004).
- 18.
The Thirteenth Amendment was ratified on December 6, 1865.
- 19.
The Fifteenth Amendment was ratified on February 3, 1870.
- 20.
The Fourteenth Amendment was ratified on July 9, 1868.
- 21.
- 22.
See, e.g. Marshall (2004).
- 23.
The first major attempt to enforce the Fourteenth Amendment to protect Civil Rights in the States was the Civil Rights Act of 1871 (also known as the “Enforcement Act” or the “Ku Klux Klan Act”) (17 Stat. 13).
- 24.
For example, the Civil Rights Act of 1875 (18 Stat. 335) was struck down as unconstitutional by the United States Supreme Court in The Civil Rights Cases.
- 25.
“Rights which belong of right to the citizens of all free governments” and “embrace nearly every civil right for the protection of which civil government is instituted.” Ibid., 75–76. Cf. above on Corfield v. Coryell.
- 26.
See Field dissent in Slaughter-House Cases (1873), 96.
- 27.
- 28.
Planned Parenthood v. Casey, 847 quoting Justice Harlan, dissenting on jurisdictional grounds in Poe v. Ullman, 541 (in which Justice Harlan quoted the case of Hurtado v. California, 537).
- 29.
See, e.g., Justice Bradley’s dissent in the Slaughter-House Cases (1873, 50). Cf. Planned Parenthood v. Casey, 847.
- 30.
Planned Parenthood v. Casey, 847 quoting Justice Harlan’s dissent in Poe v. Ullman, 541 which itself quoted Hurtado v. California, 532.
- 31.
See, e.g., Planned Parenthood v. Casey, 847; Duncan v. Louisiana, 147–148.
- 32.
See Skinner v. Oklahoma, 316 U.S. 535, 541–542 (1942).
- 33.
See Pierce v. Society of Sisters, 535; Meyer v. Nebraska.
- 34.
See Roe v. Wade, 153; Planned Parenthood of Pennsylvania v. Casey.
- 35.
See, e.g., Planned Parenthood of Pennsylvania v. Casey, 850 quoting Justice Harlan dissenting in Poe v. Ullman, 542.
- 36.
See, e.g., Chief Justice Rehnquist dissenting in Planned Parenthood of Pennsylvania v. Casey, 981.
- 37.
See, e.g., the United States Declaration of Independence (1776) on “unalienable rights” and the Constitution of the United States (1787) Preamble on “Justice” and “the Blessings of Liberty”.
- 38.
See Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833, 848 (1992).
- 39.
Ibid., 573 citing Dudgeon v. United Kingdom, par. 52.
- 40.
Justice Scalia dissenting in Lawrence v. Texas, 593.
- 41.
- 42.
See the florid dissent of Justice Scalia in Roper v. Simmons, 622 for his strongly worded objections to considering the views of such “like-minded foreigners” (Ibid., 608).
- 43.
Roper v. Simmons, the most prominent recent case to make such a judgment, looks to the “express affirmation of certain fundamental rights by other nations and peoples” to underscore “the centrality of those same rights within our own heritage of freedom” 543 U.S. 551, 578.
- 44.
For the early history, see Janis (2004).
- 45.
See Roper v. Simmons, 561 citing Thompson v. Oklahoma, 826.
- 46.
The Supreme Court usually looks to “the Western European community” and to “other nations that share our Anglo-American heritage”, Ibid.
- 47.
See, e.g., Hamdan v. Rumsfeld, which relied on Federal law and the Uniform Code of Military Justice to require the U.S. government to respect the humanitarian requirements of the Geneva Conventions.
- 48.
See, e.g., “The Use of Foreign Law in American Constitutional Adjudication: A Revealing Colloquy between Justices Scalia and Breyer” on the American University website and discussed in Dorf (2006, 213–219).
- 49.
On American worries concerning the democratic legitimacy and general reliability of international courts, see Amann (2002, 381).
- 50.
Ibid., 1367. “Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by ‘many of our most fundamental constitutional protections’.”
- 51.
European Courts have showed a similar hesitancy to defer to less-than-democratic international institutions in cases affecting fundamental human rights, see the joined cases of Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities
- 52.
On American attitudes towards the International Criminal Court, see Amann, Sellers (2002).
- 53.
“Is a U.N. International Criminal Court in the National Interest?” Hearing on the International Criminal Court before the International Operations Subcommittee of the U.S. Senate Foreign Relations Committee (July 23, 1998) (statement of Senator Rod Grams).
- 54.
See Medellin v. Texas and particularly the remarks by Chief Justice Roberts quoted supra, n. 147.
- 55.
See, e.g., Message of the President of the United States, Transmitting Four Treaties Pertaining to Human Rights, S. EXEC. Docs. C, D, E and F, 95th Congress 2d. Session, III (February 23, 1978).
- 56.
See, e.g., the statement of the American delegate Eleanor Roosevelt, On the Adoption of the Universal Declaration of Human Rights, Nations General Assembly (December 9, 1948).
- 57.
See U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Congressional Record S4781-01 (daily ed., April 2, 1992), I(1).
- 58.
See U.S. Reservations, Declarations, and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 101st Congress, 2d session in 136 Congressional Record S17486 (October 27, 1990).
- 59.
See U.S. Reservations, Declarations, and Understandings, Convention on the Prevention and Punishment of the Crime of Genocide, Congressional Record S1355-01 (February 19, 1986).
- 60.
See U.S. Reservations, Declarations, and Understandings, International Convention on the Prevention of All Forms of Racial Discrimination, Congressional Record S14326 (June 24, 1994).
- 61.
See Message from the President of the United States, Transmitting Four Treaties Pertaining to Human Rights, S. EXEC. Docs. C, D, E and F, 95th Congress 2d. Session, III (February 23, 1978).
- 62.
This judicial authority was famously confirmed by the United States Supreme Court in the case of Marbury v. Madison (1803), when Chief Justice John Marshall declared for the Court that “It is emphatically the province and duty of the judicial department to say what the law is” and reiterated that “the Constitution is superior to any ordinary act of the legislature.”
- 63.
Ibid., citing Charles de Secondat, 181.
- 64.
See the remarks of Chief Justice Roberts in Medellin v. Texas, 1367.
- 65.
Judges on the International Court of Justice serve for renewable nine-year terms. Statute of the International Court of Justice, Art. 13 (1).
- 66.
Judges on the International Court of Justice are elected by the General Assembly and Security Council of the United Nations, Ibid., Art. 4 (1).
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Sellers, M. (2013). Universal Human Rights in the Law of the United States. In: Arnold, R. (eds) The Universalism of Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 16. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4510-0_2
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