Date: October 23, 2019
Location: Dean Acheson Auditorium, Harry S. Truman Building.
Mary Ann Glendon, Chairwoman
Peter Berkowitz, Executive Secretary
Russell Berman, Commissioner
Paolo Carozza, Commissioner
Hamza Yusuf Hanson, Commissioner
David Tse-Chien Pan, Commissioner
Meir Soloveichik, Commissioner
Katrina Lantos Swett, Commissioner
Christopher Tollefsen, Commissioner
Duncan Walker, Designated Federal Officer
F. Cartwright Weiland, Rapporteur
Approval of Minutes
Rapporteur F. Cartwright Weiland drafted these minutes. I have certified their accuracy.
Public Meeting: The Nature of Rights at the American Founding (Part I)
The Commission convened at 3pm. Chairwoman Glendon began by introducing Secretary of State Pompeo. In his opening remarks, the Secretary thanked all in the audience for attending. He emphasized the public nature of the meeting, acknowledging that America historically has been characterized by extensive civil deliberation, not “governed by private writ of kings.” The Secretary expressed hope that the Commission’s ideas and discussions will profit the nation, and traced the long lineage of human rights advocates in the United States, citing Thomas Jefferson and the Declaration of Independence, Abraham Lincoln, Eleanor Roosevelt, African Americans who led the civil rights movement, and those who played a role in ending apartheid and communism in the latter part of the 20th century. He said that, unfortunately, a certain confusion now exists regarding rights. People are not always sure about whether they are talking about fundamental rights, political priorities, or personal preferences, as these distinguishable concepts have a tendency of being jumbled together in contemporary discourse. On top of this problem are others: Human rights advocacy groups have experienced mission drift, and authoritarian governments have misused international bodies like the U.N. Thus, it is past time, the Secretary said, to ask and answer key questions in a thoughtful and deliberate way. That is what the Commission will attempt to do.
After the Secretary’s remarks, Berkowitz and Glendon spoke. Berkowitz acknowledged that, since Secretary announced the Commission last summer, it has been a “lightning rod” for controversy. But Berkowitz said that this controversy is proof of the need to have commission in the first place – and the need to reassess the foundations, and scope, of human rights.
Glendon offered a few thoughts on the Commission’s mission and explained the upcoming meeting schedule to the audience. Afterwards, she stressed what the Commission is not charged to do. Since, under federal law, it is independent and nonpartisan, the Commission is not an echo chamber for Trump Administration, nor is its job to weigh in on certain policies, since it is serving in a purely advisory capacity and is operating “at the level of principle.” She then explained why it is that the Commission is needed now. She said that the word “crisis” is overworked in modern discourse, but that it nonetheless applies to the current state of the international human rights project. More than half of world’s population lives under political regimes where rights are systematically denied, and the fragile consensus that existed in 1948 (when UDHR was drafted) is now crumbling. Glendon cited the current civil unrest in Hong Kong as proof that many across the world still long for the rights Americans often take for granted. Some of protesters even waved U.S. flags – a humbling reminder of the faith many around the world retain for the American model of “liberty under law.” Glendon then asked the other commissioners on stage to introduce themselves. Afterwards, Berkowitz invited the first speaker, Stanford Law professor and former federal appellate judge Michael W. McConnell, to take the stage.
McConnell was invited to speak to commissioners about individual rights in the context of the American Founding, a topic he described as daunting. Delving into it, McConnell pointed out two principal strains of thought that contributed to the American understanding of rights in the 18th century. The first, for which Thomas Jefferson and political theorist John Locke are paradigmatic thinkers, is the Enlightenment tradition involving natural rights. The second is the reformed Protestant tradition handed down by John Calvin and Puritan dissenters, which John Adams in some respects typified.
McConnell summarized the social compact theory of John Locke, which proceeded from the hypothetical premise of people existing in a pre-political “state of nature” in which each individual enjoyed full and perfect freedom within the bounds of the natural law. But in Locke’s imagined world, this “live and let live” social situation turns out not to work very well. Some persons are naturally stronger than others, and thus the rights of weaker individuals become imperiled. That is what generates the social compact. To safeguard their interests and protect themselves from harm, people come together to form political communities and systems of government.
McConnell said that it was clear that Locke’s conception was shared by the founders because, during the Constitutional Convention, when a draft of the U.S. Constitution was sent to Congress, an accompanying letter included a key phrase borrowed from Locke. It referred to individuals “giv[ing] up a share of liberty” and “surrender[ing]” certain rights when they form political societies. The letter also noted that is difficult to say with specificity which natural rights are given up for the sake of gaining civil rights, and which natural rights “may be reserved.”
One key takeaway from Locke, McConnell argued, is that natural, retained rights are ultimately rooted in the concept of popular sovereignty – rather than in human reason, religious teachings, or other sources. In Locke’s world, people deliberate and decide which rights to relinquish to government (for example, the private right to violence that is granted to official law enforcement).
A second key takeaway from Locke is his emphasis on the rule of law. In this domain, Locke’s ideas migrated to Articles I, II, III of the U.S. Constitution. McConnell characterized the U.S. Bill of Rights, the first ten amendments that were added to the Constitution well after its ratification, as important but in some respects an “afterthought.” The chief guarantor of American freedom is not the Bill of Rights but rather the tripartite governmental structure (and series of checks and balances) established by the Constitution that helped usher in a true American rule of law.
McConnell then discussed unalienable rights in the context of the Protestant reform movement that began with John Calvin. Under this tradition, a right is “unalienable” if its derogation is precluded by a corresponding duty owed to one’s Creator. (This political and theological conception of a right, McConnell emphasized, should not be conflated with legal, justiciable rights.) In this regard, McConnell brought up James Madison’s 1785 “Memorial and Remonstrance,” which may be the only instance in which the term “unalienable right” is defined. Madison wrote about freedom of mind (a somewhat ambiguous term which referred to overlapping freedoms of conscience and religion), and stated that “the Religion then of every man must be left to the conviction and conscience of every man.” Freedom of conscience, according to Madison, is unalienable because a person cannot “give up” (in other words, alienate) the interiority of his or her mind and thought processes. But it is also unalienable because no man can give away that which does not belong to him (and/or that which he does not wholly and exclusively possess). In Madison’s words,“It is the duty of every man to render to” the ultimate normative authority of universe “such homage, and such homage only” as his conscience dictates. This duty, Madison wrote, is precedent to any claims of civil society.
Turning to the question and answer portion of his remarks, McConnell responded to a question by Berkowitz about conceptions of human personhood. According to McConnell, a belief in a concept of “unalienable” rights does not require a narrowly Christian or necessarily even theistic conception of human existence, but it does require a belief that moral concerns are fundamental to human life.
Commissioner Soloveichik described the two American rights traditions McConnell identified as intertwining like “a double helix” and wondered the extent to which they are in tension with one other. McConnell acknowledged that there is some tension, but also stressed that the traditions are compatible. Under the Lockean view, popular sovereignty is seen as the ultimate authority in human life, whereas in the reformed Protestant view, there is an ultimate (theistic) authority which sits above popular sovereignty. What holds the two traditions together is idea that Americans, generally-speaking, are and have always been, guided by some sort of normative authority – whether secular or divine.
Tollefsen wondered openly about the relationship between human duties and human rights under the second (reformed Protestant) strand. At the time of the Founding, he said, the emphasis appears to have been more on duty holder rather than now (i.e. the twenty first century), when it is on the beneficiary of duty. As an example, Tollefsen pointed out the moral commandment not to kill (emphasis on a person’s duty to refrain from murderous violence), which today is framed in terms of a right to life (emphasis on a person’s moral entitlement to not be slain by another).
Berkowitz said that, as students of 18th century, today’s scholars tend to separate classical republican, reformed Protestant, and Lockean strands of influence. He asked McConnell if the American founders themselves would have been conscious of those strands as separate and distinct from one another. McConnell replied that, no, they would not have been. At the Constitutional Convention, they seamlessly invoked ideas from Locke, the Scottish Enlightenment, and other sources in a sort of intellectual blending. To this, Glendon added that the founders were relatively affluent individuals with the means to afford the proper “education of a gentleman,” which would have included training in Aristotle, biblical, and classical Roman sources.
Both Glendon and, later, Berkowitz asked McConnell about the extent to which the American rights tradition can be seen as one characterized by continuity – a sort of “unfolding” over time, as promises made in the Declaration of Independence were gradually extended to a larger and larger segment of the American population (women, racial minorities, etc.). McConnell said that that view is entirely defensible, but that the “other side” of the argument emphasizing discontinuity makes valid points. He cited federalism changing in light of the Civil War amendments, and legal tools like equal protection (which did not exist at time of Founding) being necessary to eradicate slavery.
Commissioner Swett asked whether the founders ever deployed the term human “dignity.” McConnell could not recall that word ever being used in a Founding era document but surmised that some of terminology used at the time could, today, be translated to something like dignity. Whatever that terminology was, he added, it was probably used more in religious than in governmental contexts.
Berman said he was struggling with the term “unalienable.” He asked whether, in McConnell’s view, that term was primarily in reference to a rights holder’s agency or rather was better understood as a limitation on government. McConnell said there was no contradiction between those two, but that, at the Founding, it was more in reference to government’s limited power. Under the founders’ understanding, the source of rights was nature, or nature’s God, not the government, and thus the government lacked authority to violate a core subset of fundamental rights.
Glendon brought up the English jurist William Blackstone, whose writings refer to “absolute” rights, and then she and McConnell discussed the fact that the U.S. Bill of Rights contains no qualifications or limitations on rights.
After the conclusion of McConnell’s presentation, Berkowitz introduced Wilfred McClay, the G.T. and Libby Blankenship Chair in the History of Liberty at the University of Oklahoma, who specializes in researching and writing about the intellectual and cultural history of the United States.
McClay thanked Secretary Pompeo for being interested, and for seeing America as a global leader, in the realm of human rights. McClay began by characterizing the high regard Americans have for human rights as “exceptional” since it has never been the default position of human race and has been imperfectly realized even by citizens of the United States.
McClay then discussed the term “unalienable” in the context of the Declaration of Independence. He said that Americans today remain indebted to Thomas Jefferson and the American revolutionaries, while stressing that the U.S. has played an essential role in building the story of rights as a “fully developed theme in world history.” McClay explained that his view stemmed more from factual history than puffed-up nationalistic pride: The Declaration of Independence was a great innovation for its time that spawned a profusion of imitators, and its influence continues today. McClay pointed out that the Hong Kong protesters this year are but the latest sign of the Declaration’s enduring influence.
Citing a book by historian David Armitage, McClay went on to note that independence (severing ties with England) garnered more attention in its day than the rights espoused in the Declaration. It was arguably not until Abraham Lincoln in the 1850s that the implications of the Declaration (linking state legitimacy with the preservation of unalienable individual rights) become more fully recognized, though perhaps not fully embraced.
One problem to which the Commission will want to address itself, McClay said, involves human rights “vigilance.” How do we preserve human rights when some economic, cultural, and political forces tend to erode them, or give them short shrift?
In certain parts of the world, the key problem is the inability to establish rights in first place. But in the most advanced parts of the developed world, a separate and opposite problem is that of rights proliferation (or “hypertrophy”). McClay’s view is that by introducing contingency and questionability into rights claims, we do damage to the idea of unalienable rights. In his words, “[i]f everything comes to be regarded as a right, then it becomes an easy step to say that nothing is.”
Rights and government entitlements are distinct, and the language of rights, when left unchecked, can become a “cultural solvent” that dissolves social solidarity in favor of individualism. McClay called this the “imperial and inexorable forward march of rights.”
McClay said there are two prongs to the fight that will be necessary. On the one hand, in much of the world, fundamental rights will have to be upheld where they are currently eroded or absent, while on the other, the hypertrophy of lesser rights claims will need to be curtailed. The key question is how to protect an “irreducible minimum.”
McClay then spoke more about the term “unalienable” – noting that “to alienate” means “to separate,” so “unalienable” means that which cannot be separated from its possessor, or taken (or given) away by force or consent. In its fullness, the word unalienable reflects a view of human anthropology – one congruent with (but not necessarily equal to) the Christian and Jewish view of humans endowed with a divine image – an endowment that cannot be taken away or refused. McClay described this anthropological view as somewhat in tension with contemporary libertarian ideas of self-ownership. It is suggestive of the idea that our lives are not entirely own – and that, with rights, we also bear responsibilities to others, and to ourselves.
McClay stated the unalienable rights we should seek to defend and uphold will have to be few in number and extremely well-defined. Perhaps the best example of an unalienable right, he said, is freedom of conscience. Like McConnell earlier, he discussed James Madison’s “Memorial and Remonstrance.” He closed by saying that, to strike the right balance moving forward, duties must be seen as part and parcel of our rights, and vice versa, both of them flowing from our obligations to other human beings and to God.
Opening the question and answer portion of the remarks, Berkowitz lauded McClay, as well as McConnell, for emphasizing the correlation between rights and duties. That connection is built into the idea of Commission itself, since it is premised on the idea that the United States has duties to non-citizens in the human rights realm. Berkowitz also praised McClay for thinking anthropologically about how rights play into ideas of human personhood. McClay politely responded that any defense of rights must contemplate human nature and “what kinds of creatures we are.”
Berkowitz and McClay continued their discussion of the founding, with McClay mentioning the inherited national tradition (rights of Englishmen) that revolutionaries would have understood themselves as possessing. He also remarked that, in drafting the Declaration of Independence, Thomas Jefferson did not see himself as doing anything new but rather writing down the “common sense of the American mind.” Because the Declaration was directed toward an international audience (foreign nations like France, whose support the revolutionaries would need in order to defeat the English), however, references to the “rights of Englishmen” would not resonate very well. Thus, the document made more abstract appeals to a broad audience.
Soloveichik talked about how July 4th came to be known as a national holiday and asked why and how the Declaration, over time, became a document that united the nation civically. He and McClay brought up Pauline Maier’s book American Scripture, which addresses these matters.
Berman described McClay’s remarks as very interesting but wondered about how a discussion invoking Edmund Burke and the “rights of Englishmen” becomes relevant to foreign policy. Berman said that useful in this regard were McClay’s comments on the anthropological – or “perhaps existentialist” – idea that rights are things that inhere in us as human beings. When that view is embraced, Berman identified there being a shift from a quietist right to conscience (“think what you want, but keep it to yourself”) to a more active, pursuit of, and obligation to defend, the rights of community members (one example of this being abolitionists seeking to eradicate slavery).
Hamza and McClay briefly discussed property rights, and then Tollefsen asked whether attaching duties as a condition to rights make sense, in McClay’s view. Glendon concluded by thanking McClay for participating.
Afterwards, the public comment portion of the day’s proceedings began. A representative of the Human Rights Campaign said that many of the speakers and commissioners’ remarks on the founding period had focused on the views of white, slaveholding males, and that female and minority perspectives were notably absent. Others asked about how the Commission was organizing itself, and about the upcoming meeting schedule. Amnesty International reminded commissioners that “unalienable right” is not a legal or constitutional concept. The American Global Jewish Service encouraged commissioners to continue to correspond and interact with the Department of State’s Bureau on Democracy, Human Rights, and Labor (DRL). A professor from George Mason University (and member of Concerned Women for America) praised the formation of commission and asked it to consider the role civil society has to play in defining what human rights are, and are not. A law professor from the University of Oklahoma (who used to work at the Department) encouraged commissioners to receive briefings from the Office of the Legal Adviser (L) and the Bureau of International Organizations (IO). Another audience member asked the Commission to supply speakers’ names on its website prior to the next meeting.
During the October 23 meeting, Commissioners received copies of the following materials:
- Bureau of Democracy, Human Rights, and Labor (DRL) PowerPoint presentation overview.
- Binder of previously-assigned readings.
Commissioner Hanson will join the “Terms and Concepts” Working Group, chaired by Commissioner Tollefsen.
The Commission plans to launch a website in the coming days or weeks. By using an email address provided on the site, members of the general public will have the opportunity to submit written materials for the Commission’s consideration.
November 1, 2019 | Time 1:15 p.m., Room TBD, Harry S. Truman Building, Washington, D.C.
Expert witnesses: Prof. Cass Sunstein (Harvard Law School, former Administrator of the Office of Information and Regulatory Affairs (OIRA)), Prof. Orlando Patterson (Harvard University).