Universal Human Rights Law in the United States

Sellers, Mortimer N. S.; Sellers, Mortimer N. S.

doi:10.1007/978-94-007-7599-2_2

Mortimer N. S. Sellers⁵ &
Mortimer N. S. Sellers⁶

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 30))

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Abstract

Universal human rights provided the primary legal justification for the American Revolution and have therefore been at the heart of the American law from the earliest years of the Republic. The inherent and inalienable rights of all human beings were cited in the Declaration of Independence of the United States, protected in the federal Bill of Rights and independently guaranteed by the separate constitutions of every state in the Union. American law and American lawyers consider support for universal rights to be the ultimate basis of all legitimate government, everywhere. So intimate is the connection between universal rights and the American legal tradition that in the eyes of the American government and courts most international declarations and covenants recognizing universal rights are simply restatements of existing United States law and established constitutional guarantees. This leads to a persistent and lingering suspicion of international authorities and tribunals that presume to revise or improve upon settled American understandings of human rights law. For the most part Americans view their federal courts as the most legitimate and accurate authorities on rights, because of their well-developed jurisprudence and perceived impartiality. As foreign and international tribunals develop deeper and more sophisticated rights traditions, American law and courts will take these more into account, as has already occurred in several recent Supreme Court decisions. Authority will flow to whichever officials and courts prove the most accurate in identifying and protecting universal human rights.

This chapter is adapted from an essay on the same subject first published in a supplement to the American Journal of Comparative Law in 2010.

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Notes

1.
The Unanimous Declaration of the thirteen United States of America (4 July 1776).
2.
Ibid.
3.
Ibid.
4.
On American conceptions of rights in the era of independence, see B.A. Shain (ed.), The Nature of Rights at the American Founding and Beyond (Charlottesville, University of Virginia Press, 2007); T.H. Breen, The Lockean Moment: the Language of Rights on the Eve of the American Revolution (Oxford, Oxford University Press, 2001); J.P. Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison, University of Wisconsin Press, 1986); W.P. Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, trans. R. Kimber and R. Kimber (Chapel Hill, University of North Carolina Press, 1980); M.G. White, The Philosophy of the American Revolution (New York, Oxford University Press, 1978); P.A. Hamburger, “Natural Rights, Natural Law, and American Constitutions”, 102 Yale Law Journal (1993) 907–960; W.F. Dana, “The Declaration of Independence as Justification for Revolution”, 13 Harvard Law Review (1900) 319–343.
5.
J. Adams, A Dissertation on the Canon and Feudal Law (1765) in C. F. Adams, (ed.) The Works of John Adams, Second President of the United States: with a Life of the Author, Notes and Illustrations, volume III (Boston: Little & Brown,1865) at 463.
6.
These quotations are from the Virginia Declaration of Rights (12 June 1776).
7.
On these and other antecedents of the American declarations of rights, see B. Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (expanded ed. Madison: Madison House, 1992).
8.
For a collection of such texts, see F. Mari (ed.), The Universal Declaration of Human Rights and its Predecessors (1679–1948), (Leiden: ej Brill, 1949). Cf. J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999).
9.
The Universal Declaration of Human Rights (10 December, 1948), Preamble.
10.
Ibid. Article 1.
11.
See e.g., Message of President Jimmy Carter to the United States Senate, 23 February 1978 (concerning the International Convention on the Elimination of All Forms of Racial Discrimination, signed on behalf of the United States on 28 September 1966; The International Covenant on Economic, Social and Cultural Rights, signed on behalf of the United States on 5 October 1977; The International Covenant on Civil and Political Rights, signed on behalf of the United States on 5 October 1977; and the American Convention on Human Rights, signed on behalf of the United States on 1 June 1977).
12.
See e.g., ibid. and U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Congressional Record S4781-01 (daily ed. 2 April 1992).
13.
This point is clarified in the United States Constitution by Amendment X, ratified on 15 December 1791.
14.
These may be found easily on-line through the various State websites.
15.
Constitution of the Commonwealth of Massachusetts, A Declaration of the Rights of the Inhabitants of Massachusetts.
16.
Constitution of the Commonwealth of Pennsylvania, Article 1, Declaration of Rights.
17.
Constitution of Virginia, Article 1, Bill of Rights.
18.
The Texas Constitution, Article 1, Bill of Rights.
19.
Constitution of California, Article 1, Declaration of Rights.
20.
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, Article 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.
21.
Constitution of the Commonwealth of Massachusetts, Article CVI.
22.
Constitution of the Commonwealth of Pennsylvania, Article 1, Sect. 1.
23.
Constitution of Virginia, Article I, Sect. 1.
24.
California Constitution, Article 1, Sect. 1.
25.
The Texas Constitution, Article 1, Sect. 1.
26.
Preamble of the “Bill of Rights,” as proposed by the United States Congress to the States (4 March 1789).
27.
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 (8 June 1789) at 449.
28.
Ibid. at 450.
29.
Ibid. at 455.
30.
Ibid. at 457.
31.
Ibid.
32.
Ibid.
33.
Ibid. at 456.
34.
On the Ninth Amendment see D.A. Farber, Retained by the People (New York: Basic Books, 2007); C.O. Prince, The Purpose of the Ninth Amendment to the Constitution of the United States (Lewiston, N.Y.: Edwin Mellen Press, 2005); R. Barnett, Rights Retained by the People: The History and Meaning of the Ninth Amendment (Fairfax: George Mason University Press, 1991).
35.
J. Madison in The Annals of Congress, House of Representatives, First Congress, 1st Session (8 June 1789) at 459.
36.
Resolutions of the Kentucky Legislature (10 November 1798).
37.
Resolution of the Virginia Senate (24 December 1798).
38.
Resolutions of the Kentucky Legislature (10 November 1798) No.3.
39.
Ibid., Resolution no. 1.
40.
Ibid., Resolution no. 8.
41.
Ibid.
42.
Barron v. City of Baltimore, 32 U.S. 243, 248 (1833).
43.
Ibid. at 250-1.
44.
The Constitution itself referred to the “privileges and immunities of citizens in the several states”, Constitution of the United States (1787), Article IV, Sect. 2.
45.
Corfield v. Coryell, 6 Fed. Cas. 546, no. 3230 C.C.E.D. Pa. (1823).
46.
See Calder v. Bull, 3. U.S. 386, 388 (1798) for those acts “which the Federal, or State, Legislature cannot do, without exceeding their authority.”
47.
Calder v. Bull, 3 U.S. 386, 388 (1798).
48.
Corfield v. Coryell, 6 Fed. Cas. 546, no. 3230 C.C.E.D. Pa. (1823).
49.
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 (8 June 1789) at 458. For “the great rights of mankind,” see p. 449.
50.
Amy, a woman of color, v. Smith, 11 Ky. 326; 1 Litt. 326, 334.
51.
Ibid. at 333.
52.
The State v. Claiborne, 19 Tenn. 331, 1 Meigs 331, 340. “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’.” Ibid. at 341.
53.
State of Tennessee, Constitution of 1835, Article I, Declaration of Rights, Sect. VIII. Cf. Magna Carta, Chap. 39.
54.
For the vast literature on the antebellum conflict over fundamental human rights, see R. Barnett, Restoring the Lost Constitution (Princeton: Princeton University Press, 2004).
55.
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
56.
Ibid. at 410.
57.
The Thirteenth Amendment was ratified on 6 December 1865.
58.
The Fifteenth Amendment was ratified on 3 February 1870.
59.
The Fourteenth Amendment was ratified on 9 July 1868.
60.
United States Constitution, Amendment XIV, Sect. 5.
61.
See W.J. Jr. Brennan, “The Bill of Rights and the States, The Revival of State Constitutions as Guardians of Individual Rights” in 61 New York University Law Review (1986) 535; Ibid., “State Constitutions and the Revival of Individual Rights” in 90 Harvard Law Review(1977) 489.
62.
See, e.g., M.H. Marshall, “Wise Parents Do Not Hesitate to Learn from their Children: Interpreting State Constitutions in an Age of Global Jurisprudence” in 79 New York Law Review (2004) 1633.
63.
H.A. Linde, “E Pluribus – Constitutional Theory and State Courts” in 18 Georgia Law Review(1984) 165, H.A. Linde, “First things First – Rediscovering the States’ Bills of Rights” 9 University of Baltimore Law Review(1980) 379.
64.
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).
65.
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, 109 U.S. 3 (1883).
66.
Slaughter-House Cases, 83 U.S. 36, 67–68 (1873).
67.
“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. at 75–76. Cf. above on Corfield v. Coryell.
68.
Slaughter-House Cases, supra, note 67 at 77.
69.
Ibid. at 78.
70.
Ibid. at 82.
71.
Ibid. (Field dissent) at 96.
72.
Ibid. (Field dissent) at 97.
73.
Ibid. (Field dissent) at 89.
74.
Ibid. (Field dissent) at 105.
75.
Justice O’Connor, Justice Kennedy, and Justice Souter, writing for the majority in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992) quoting Justice Brandeis’ concurring opinion in Whitney v. California, 274 U.S. 357, 373 (1927).
76.
Planned Parenthood v. Casey, supra, note 76 at 846.
77.
Ibid. at 847 quoting Justice Harlan, dissenting on jurisdictional grounds in Poe v. Ullman 367 U.S. 497, 541 (1961), in which Justice Harlan quoted the case of Hurtado v. California, 110 U.S. 516, 537 (1884).
78.
Magna Carta, 39 (1215).
79.
See e.g., Justice Bradley’s dissent in the Slaughter-House Cases supra, note 67 at, 50. Cf. Planned Parenthood v. Casey, supra, note 75 at 847.
80.
Planned Parenthood v. Casey, supra, note 76, quoting Justice Harlan’s dissent in Poe v. Ullman, supra, note 78, which itself quoted Hurtado v. California, supra, note 78.
81.
See e.g., Planned Parenthood v. Casey, supra, note 76; Duncan v. Louisiana, 391 U.S. 145, 147–148 (1968).
82.
Loving v. Virginia, 388 U.S. 1, 12 (1967).
83.
Skinner v. Oklahoma, 316 U.S. 535, 541–542 (1942).
84.
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
85.
Roe v. Wade, 410 U.S. 113, 153 (1973); Planned Parenthood v. Casey, supra, note 76.
86.
Lawrence v. Texas, 539 U.S. 558, 564 (2003).
87.
Planned Parenthood v. Casey, supra, note 76.
88.
See e.g., Planned Parenthood v. Casey,850, supra, note 76, quoting Justice Harlan dissenting in Poe v. Ullman, supra, note 78 at 542.
89.
Ibid.
90.
Planned Parenthood v. Casey, supra, note 76 at 857, 860.
91.
Ibid. at 869.
92.
See e.g., Chief Justice Rehnquist, dissenting in Planned Parenthood v. Casey, supra, note 76, 951–952, 981.
93.
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.”
94.
See Planned Parenthood v. Casey, supra, note 76 at 848.
95.
Lawrence v. Texas, supra, note 87.
96.
Roper v. Simmons, 543 U.S. 551 (2005).
97.
Lawrence v. Texas, supra, note 87.
98.
Ibid.
99.
Bowers v. Hardwick, 478 U.S. 186 (1986).
100.
Lawrence v. Texas, supra, note 87 at 564.
101.
Ibid. at 564–566.
102.
Ibid. at 573, citing ECtHR 22 October 1981, No. 7525/76, Dudgeon v. United Kingdom, para 52.
103.
Roper v. Simmons, supra, note 97 at 576.
104.
Ibid. at 561.
105.
Ibid.
106.
Ibid. at 578.
107.
Ibid.
108.
Lawrence v. Texas, supra, note 87 at 576.
109.
Ibid.
110.
Justice Scalia dissenting in Lawrence v. Texas, supra, note 87 at 593.
111.
Constitution of the United States, (1787) Article VI.
112.
On the Fourteenth Amendment, see G. Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (New York: Henry Holt, 2006); W.E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass.: Harvard Univ. Press, 1988); M.K. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, N.C.: Duke Univ. Press, 1986).
113.
Roper v. Simmons, supra, note 97 at 555.
114.
Ibid. at 568.
115.
Ibid. at 576, 578.
116.
Ibid. at 560.
117.
Ibid. at 561.
118.
Ibid. at 576.
119.
Ibid.
120.
See the florid dissent of Justice Scalia in Roper v. Simmons, supra, note 97 at 622 for his strongly worded objections to considering the views of such “like-minded foreigners.” Ibid. at 608.
121.
Ibid.
122.
Roper v. Simmons, supra, note 97 at 578, 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.”
123.
For the early history, see M.W. Janis, The American Tradition of International Law: Great Expectations, 1789–1914 (Oxford: Clarendon Press, 2004).
124.
The Paquete Habana, 175 U.S. 677 (1900).
125.
Ibid. at 687.
126.
Ibid. at 687–688.
127.
Ibid. at 688–689.
128.
Ibid. at 690–691.
129.
Ibid. at 691.
130.
Ibid. at 686.
131.
See Roper v. Simmons, supra, note 97 at 561, citing Thompson v. Oklahoma 487 U.S. 815, 826 (1988).
132.
The Supreme Court usually looks to “the Western European community” and to “other nations that share our Anglo-American heritage.” Ibid.
133.
The Paquete Habana, supra, note 125 at 700.
134.
Ibid.
135.
United States Constitution, Article I, Sect. 8.
136.
See e.g., Hamdan v. Rumsfeld 548 U.S. 557 (2006), which relied on Federal law and the Uniform Code of Military Justice to require the United States government to respect the humanitarian requirements of the Geneva Conventions.
137.
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 M.G. Dorf, No Litmus Test: Law versus Politics in the Twenty First Century (Lanham, Maryland: Rowland 1 Littlefield, 2006), 213–219.
138.
Medellin v. Texas, 128 S. Ct. 1346 (2008).
139.
On American worries concerning the democratic legitimacy and general reliability of international courts, see D.M. Amann and M.N.S. Sellers, “The United States of America and the International Criminal Court” in 50 American Journal of Comparative Law (Supplement) 381 (2002).
140.
Medellin v. Texas, supra, note 139 at 1353.
141.
Ibid.
142.
Ibid. at 1357.
143.
Ibid. at 1359.
144.
Ibid. at 1360.
145.
Ibid. at 1365–1366.
146.
Ibid. at 1367–1368.
147.
Ibid. at 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’.”
148.
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 in the Court of Justice of the European Communities (C-402/05 P and C-415/05 P) (2008).
149.
On American attitudes towards the International Criminal Court, see D.M. Amann and M.N.S. Sellers, “The United States of America and the International Criminal Court,” in 50 American Journal of Comparative Law (Supplement) (2002) 381.
150.
“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).
151.
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (1998), art 112.
152.
Ibid., Arts. 36(6)(a); 46(2)(a); 42(4); and 46(2)(b).
153.
Ibid. Arts. 9(1) and 51(1).
154.
Ibid., Arts. 121; 122.
155.
See Amann and Sellers, “International Criminal Court” supra, note 150 at 389.
156.
See Medellin v. Texas, supra, note 139 and particularly the remarks by Chief Justice Roberts.
157.
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 at III (23 February 1978).
158.
See e.g., the statement of the American delegate Eleanor Roosevelt, On the Adoption of the Universal Declaration of Human Rights, United Nations General Assembly (December 9, 1948).
159.
U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, 138 Congressional Record S4781-01 (daily ed., 2 April 1992) at I(1).
160.
Ibid. at I (2).
161.
Ibid. at I (3).
162.
Ibid. at I (5).
163.
Ibid. at II (1).
164.
Ibid. at IV.
165.
U.S. Reservations, Declarations, and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 101^st Congress, 2d session in 136 Congressional Record S17486 (27 October 1990).
166.
U.S. Reservations, Declarations, and Understandings, Convention on the Prevention and Punishment of the Crime of Genocide, Congressional Record S1355-01 (19 February 1986).
167.
U.S. Reservations, Declarations, and Understandings, International Convention on the Prevention of All Forms of Racial Discrimination, Congressional Record S14326 (24 June 1994).
168.
See also 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 at III (23 February 1978).
169.
Ibid.
170.
Charter of the United Nations (1945), Preamble.
171.
Ibid., Art. 55.
172.
M.A. Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).
173.
E. Roosevelt, On the Adoption of the Universal Declaration of Human Rights, United Nations General Assembly (9 December 1948).
174.
Ibid.
175.
Ibid.
176.
“Publius” [James Madison], The Federalist No. 48 in the New York Packet (1 February 1788).
177.
This judicial authority was famously confirmed by the United States Supreme Court in the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (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.”
178.
Constitution of the United States, Article III, Sect. I.
179.
Ibid.
180.
“Publius” [Alexander Hamilton], Federalist 78 in the Independent Journal (14 June 1788).
181.
Ibid.
182.
Ibid., citing Charles de Secondat, Baron de la Brède et de Montesquieu, The Spirit of the Laws, volume I, p. 181.
183.
“Publius” [Alexander Hamilton], Federalist 78 in the Independent Journal (14 June 1788).
184.
Ibid.
185.
Ibid.
186.
Ibid.
187.
See the remarks of Chief Justice Roberts in Medellin v. Texas, supra, note 139 at 1367.
188.
Judges on the International Court of Justice serve for renewable 9-year terms. Statute of the International Court of Justice, Article 13(1).
189.
Judges on the International Court of Justice are elected by the General Assembly and Security Council of the United Nations, Ibid., Article 4(1).
190.
Declaration of Independence of the United States of America (4 July 1776).
191.
Constitution of the United States (1787), Preamble.

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University System of Maryland, Baltimore, MD, USA
Mortimer N. S. Sellers (Regents Professor)
Georgetown University Law Center, Washington, DC, USA
Mortimer N. S. Sellers (Visiting Professor)

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Human Rights Centre, Ghent University, Ghent, Belgium
Yves Haeck
Human Rights Centre, Ghent University, Ghent, Belgium
Eva Brems

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Sellers, M.N.S., Sellers, M.N.S. (2014). Universal Human Rights Law in the United States. In: Haeck, Y., Brems, E. (eds) Human Rights and Civil Liberties in the 21st Century. Ius Gentium: Comparative Perspectives on Law and Justice, vol 30. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7599-2_2

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