The Right Way to Talk About Rights

Universal Declaration of Human Rights Day, December 10, commemorates the day in 1948 that the United Nations General Assembly adopted the Universal Declaration of Human Rights. Recently, the Trump administration has been giving some thought to that declaration. In July, Secretary of State Mike Pompeo created the Commission on Unalienable Rights in the Department of State—and not a moment too soon.

Many are confused about human rights today. There has been an explosion in the number of “rights” claims worldwide. As Pompeo stated before the first commission meeting, “One research group has found that between the United Nations and the Council of Europe, there are a combined 64 human rights-related agreements, encompassing 1,377 provisions.” But as he noted, “it isn’t always clear whether we’re talking about fundamental, universal rights; or debatable political priorities; or merely personal preferences.”

The commission has been formed to bring some much-needed clarity to the rights discussion. It will “provide the Secretary of State advice and recommendations concerning international human rights matters” and offer “fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”

The commission has caused unhappiness in certain quarters, for the terms “natural law” and “natural rights” make some people nervous. According to Katherine M. Marino of the University of California, Los Angeles, “Pompeo’s commission will actually threaten sexual equality, LGBTQ rights and reproductive health globally.” Marino also criticized the selection of Harvard Law School’s Mary Ann Glendon as chairman of the commission. Much to Marino’s dismay, Glendon has stated that “It is not the case that whatever a particular nation state decides to call a woman’s ‘right’ is necessarily a universal human right.” According to Marino,

Differentiating between “unalienable rights” and “ad hoc rights” does the same thing as Glendon’s contrast between human rights and women’s rights: They both narrow the meaning of human rights to the natural law and rights of the U.S. political tradition. This undermines the international feminist movement and other movements for social, economic and racial justice that have driven the development of universal human rights over the 20th century.

The polite response is probably, “Not everyone will agree.” 

Jayne Huckerby, Sarah Knuckey, and Meg Satterthwaite wrote: “Civil and human rights advocates raised immediate alarm when news of the commission was first reported, fearing that its focus on ‘natural law’ was code for anti-LGBTQI, anti-choice, and anti-women’s rights agenda(s).” They noted that “Glendon has long opposed abortion and marriage equality.” Notice the insertion of the term “marriage equality” to normalize same-sex “marriage,” opposed as recently as November 2008 by noted right-wing extremist Barack Obama, who said at the time: “I believe marriage is between a man and a woman. I am not in favor of gay marriage.” 

Human Rights First, a left-wing organization, called on Pompeo to disband the commission:

The Commission’s chair and members are overwhelmingly clergy or scholars known for extreme positions opposing LGBTQI and reproductive rights, and some have taken public stances in support of indefensible human rights violations. The Commission’s chair has stated that marriage equality undercuts the welfare of children. A Commission member has similarly stated that “the unavoidable message” of same-sex marriage “is a profoundly false and damaging one.”

To which one might comment, politely, “People disagree; elections have consequences.”

The Center for Reproductive Rights also released a statement:

Contrary to its asserted purpose, there is no need to redefine or develop foundational principles on human rights. There is a clear and unequivocal consensus by U.N. human rights treaty bodies and independent experts that reproductive rights are human rights, grounded in the right to life, health, equality, non-discrimination and freedom from cruel, inhumane and degrading treatment, among other rights.

What would we do without independent experts? 

It is clear from these various statements that those who wish the commission had not been formed think relying on America’s founders to inform us about rights is too limited—too limited to normalize their own special proclivities. A careful reading of the U.N. Declaration on Human Rights might be instructive for some of them. For example, Article 16 says, “Men and women . . .  have the right to marry and to found a family.” The implication is obvious: A family is founded by a man and a woman. Could Pompeo’s opponents possibly claim with a straight face that the people who wrote those sentences had homosexual marriages in mind?

So far, the commission has held two public meetings, featuring Professors Michael McConnell, Wilfred McClay, Cass Sunstein, and Orlando Patterson. Their papers (or summaries of them) will eventually be available on the commission’s website. They discussed individual rights that can be alienated, or transferred, to the state (such as the use of force), unalienable rights (such as the right to life, which cannot be alienated to the state), human rights (how are they different?), the Bill of Rights, Franklin D. Roosevelt’s 1941 Four Freedoms, the United Nations Declaration of Human Rights and other formulations, and the historic pronouncements of the founding fathers (hypocrisy, given the existence of slavery, or the seed for American exceptionalism?).

McClay said in his remarks that we should be careful not to create too many rights, and shouldn’t extend them to trees and bushes—a remark that provoked a questioner representing an LGBT organization to ask (after McClay had left to catch a plane) if the speakers at subsequent public meetings could be challenged.

McClay was presumably noting that creating a right for one person will create an obligation in an “opposite” party. A’s right to eat at B’s lunch counter, however just that may be, nevertheless deprives B of his right to determine who sits at his property. A homosexual’s right to have any baker he selects bake him a wedding cake may deprive a baker of his right not to bake that cake or even associate with that person, for whatever reason he may have. A “formerly male” tennis player’s right to play in a women’s tournament will deprive women of their right to an equal playing court.

Of the current 47 members of the U.N.’s Human Rights Commission, three (Eritrea, Somalia, and Sudan) have received Freedom House’s worst aggregate score for political rights and civil liberties. In view of this, why would we want the United Nations to lecture us on human rights? Secretary Pompeo’s commission should provide a better guide—a guide steeped in the American tradition, which is the world’s best hope.

Daniel Oliver is Chairman of the Board of the Education and Research Institute and a Director of Pacific Research Institute for Public Policy in San Francisco. He previously served as Chairman of the Federal Trade Commission under President Reagan. 

Photo by Gage Skidmore via Creative Commons. Image cropped.