In today’s episode of the Telos Press Podcast, Camelia Raghinaru talks with Russell A. Berman about his article “Reflections on Rights,” one of a group of essays from Telos 192 (Fall 2020) on the U.S. State Department’s Commission on Unalienable Rights. An excerpt of the article appears below. If your university has an online subscription to Telos, you can read the full article at the Telos Online website. For non-subscribers, learn how your university can begin a subscription to Telos at our library recommendation page. Purchase a print copy of Telos 192 in our online store.
Reflections on Rights
Russell A. Berman
In July 2020, the Commission on Unalienable Rights submitted its report at a historical moment that for two different reasons has made a serious consideration of rights, their foundation and their promotion, all the more urgent. Internationally, the response to the spread of the COVID pandemic has demonstrated the ease with which all countries, but most worrisomely liberal democracies that rightly pride themselves on their commitment to rights, quickly suspend them in a state of emergency. That a dictatorial China could lock down cities is not unexpected (although the admiration that such repression elicited in parts of the West is disconcerting), but across the Western democracies one found: suspension of freedom of movement (no travel), suspension of freedom of assembly (no gatherings), suspension of the free exercise of religion (no communal prayers in churches, mosques, or synagogues)—and all this typically through executive order, with no or little judicial review. A robust debate, including voices from the scientific community, continues as to which of these steps were appropriate and which were just confused. The point in this context, however, is that we have seen how quickly rights can disappear. A precedent has been set for future suspensions of rights if an emergency is declared.
Meanwhile, the death of George Floyd at the hands of a Minneapolis police officer, the wave of protests that followed, and the national attention to the Black Lives Matter agenda has amplified the importance of the charge to the commission to reflect on the status of rights in the American tradition. Skeptics assumed that the commission would ignore the national failings; an honest reading of the report should disabuse anyone of that bias. Yet the hermeneutic question remains, interpreting the significance of an appeal to rights in the face of rights-denying practices. At stake is the need to evaluate Jefferson’s assertion of the self-evidence of “unalienable rights” in the Declaration of Independence, the gap between that ideal and the practice, including slavery, but also the process that unfolded in the subsequent life of the republic, including Lincoln’s appeal for a “dedication” to realize Jefferson’s “proposition,” as well as the history that continues through the civil rights movement and beyond.
Reality rarely lives up to ideals, and that certainly holds for American history, especially but not only with regard to the legacy of slavery. The challenge now is to think through the implications of that tension between theory and practice. Lincoln’s counsel points to ever renewed efforts to achieve the ideals that retain their validity even when they are not realized. Yet against that Lincolnian mandate, an alternative position has long claimed that the failure to meet ideal norms discredits the norms themselves, and that the ideals, including the whole Jeffersonian discourse and the operation of the American founding, were hopelessly implicated in a system of domination. For this latter position, the hypocrisy of some founders, particularly the slaveholders among them, condemns the whole project, the American Revolution, the fight for independence, and the republic framed by the Constitution. Following that logic, one must condemn the whole tradition and all the institutions associated with it, demolishing not only Confederate statues but also anti-Confederate monuments, as we have seen statues of Grant, Lincoln, and even Frederick Douglass come under assault. The case of Douglass makes the interpretive question most poignant: the former slave and prominent advocate of emancipation defended the Constitution as a “glorious document of liberty” and a vehicle to achieve liberty, in contrast to the radical camp around the abolitionist William Lloyd Garrison, which promulgated the view that the Constitution and the republic were exclusively instruments of slavery.
This double context—the rapid suspension of rights in country after country (often with the vilification of those who questioned the necessity of all the terms of quarantine) and the national soul-searching in the United States about the depth of a commitment to the proposition that all men are created equal—makes clear the timeliness of a deep thinking about rights. Those who are committed to rights should worry about the fragility of the rights regime. However, there is an additional frame that makes this discussion all the more urgent, the truly beleaguered status of rights around the world. Large parts of the world’s population live under regimes that deny them fundamental rights, including freedoms of religion, speech, and assembly. Human trafficking is extensive, contributing to a brutal renewal of slavery, whether as prostitution or other forms of forced labor. China, Russia, North Korea, and Iran, to name some of the worst culprits, deny their populations human rights, and there are no internal processes of self-correction in those dictatorships. Western countries also have tarnished rights records, including, as already stated, the United States. But, as the report insists, there is no moral equivalency: there is a fundamental difference between countries systematically hostile to rights and democracies that aspire to improve. How many demonstrations take place now on Tiananmen Square to protest the murder of Uighurs? Those who assert that the United States should not talk about rights abuses in Xinjiang because of failures, for example, on the American borders are doing the work of the Chinese Communist Party.
The report makes the case that American foreign policy is obligated to promote human rights globally as the heir to two distinct sources: first, the tradition of American political thinking, which the commission has interpreted to include not only the eighteenth-century founding but also its subsequent development and expansion, through the Civil War, Reconstruction, the movement for women’s suffrage, and on to the civil rights movement, i.e., not only Jefferson but also King; and second, the international commitments that the United States has entered into, particularly since the 1948 Universal Declaration of Human Rights, in the formulation of which the United States played a leading role thanks to Eleanor Roosevelt, and, following that statement of principles, the various treaties concerning human rights. The goal of the commission never included an encyclopedic coverage of all relevant documents. Instead it intended to demonstrate how U.S. foreign policy should draw on both these sources, the particular national legacy and the international discourse. Both sides are vital.
The following reflections comment only on a few conceptual matters of broader critical-theoretical interest in the report, including the question of natural law; the status of national traditions; and finally the pragmatics of rights in foreign policy today.
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