NEWS & REPORTS

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Human Rights Today*

By Cliff DuRand, Center for Global Justice 

"civil resistance activities represent the last constitutional avenue open to the American people to preserve their democratic form of government with its historical commitment to the rule of law and human rights."                         
-- Francis A. Boyle, Nov. 20, 2007

My title is a little too ambitious.  Even a cursory survey of human rights today would take a book, not a mere 20 minute talk.  So what I want to do is share with you a few reflections on certain aspects of human rights.  So please don’t be too disappointed if I fail to touch on your favorite topic.  I will not talk about the rights of specific groups, such as workers, or women or immigrants or cultural minorities.  The whole notion of group rights is controversial, since rights have generally been conceived as belonging to individuals.  What I want to focus on are those rights that apply to all human beings, i.e. universal human rights.  And it is human rights that I am concerned with.  So that excludes animal rights, a notion that I find to be very suspect from a philosophical point of view. 

So let me begin with the Universal Declaration of Human Rights.  Tomorrow, December 10, is the 59th anniversary of its adoption by the General Assembly of the United Nations.  This agreement by the nations of the world was a historical milestone in the establishment of rights based on common consent, just as the addition of the Bill of Rights to the U.S. Constitution a century and a half earlier was such a milestone in my own country.  The Universal Declaration of Human Rights owes much to the proposals of the non-aligned nations and was drafted by the Canadian John Humphrey.  And it was the vigorous leadership of Eleanor Roosevelt that won the backing of the government of the United States –without which the proposal might not have gone very far. 

In the decades since then the U.S. has publicly championed human rights and this has been important in winning other governments to respecting them.  That is why, as we look at the state of human rights today, we need to pay special attention to the current role of the U.S.   It is deeply troubling to read the Universal Declaration of Human Rights in this light.  Let me cite a few of its provisions.

• Article 5:  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
• Article 6:  Everyone has the right to recognition everywhere as a person before the law.
• Article 9:  No one shall be subjected to arbitrary arrest, detention or exile.
• Article 11, section 1:  Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

Until recently these rights were taken for granted as fundamental for any civilized society.  They expressed the conscience of humankind.  Now there are those who think such ideas are “quaint” and no longer relevant in the defense of what they call “freedom.”  And these people are in control of the most powerful government in the world!  This is a situation that those of us in this room feel to be profoundly embarrassing.

The Articles I have just quoted are among the legal rights mentioned in the Universal Declaration of Human Rights.  I will return to them shortly.  But in addition to the legal and political rights most often mentioned in the West, there are also economic and cultural rights.  These have been especially important in other parts of the world, but less so in the U.S.  For example,

• Article 22:  Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

• Article 25, section 1:  Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

This is of obvious importance to peoples in the poorer countries of the world, but also to many in the U.S. who do not earn a living wage or have health insurance.  In some countries health care is seen as a human right to be provided by society, as is education and culture and other such things that contribute to the fuller development of the human being.

The U.S. has long been a laggard on these economic and cultural rights.  Indeed, any guarantee of such economic rights is widely viewed as socialism.  The neo-liberal orthodoxy that prevails there and has been imposed on peoples in many other parts of the world makes the individual, not society, responsible for ones own economic well being. For example, Jeane Kirkpatrick, Ronald Reagan’s Ambassador to the UN, argued that economic rights cannot be human rights, for they must be provided by others through forceful extraction (taxation) and that that negates other peoples' inalienable rights.  In contrast with this libertarian individualism, we find in Article 29 the assertion that it is only in community that “the free and full development of [each] personality is possible.”  This marks one of the fundamental ideological shifts that has occurred since adoption of the original Universal Declaration of Human Rights.  The dominant political discourse has moved away from the communitarian notion that society has basic responsibility to ensure the well being and development of its members to the individualistic view that we are each on our own.

The Universal Declaration of Human Rights has relatively little to say about political rights.  That is no doubt due to the fact that the U.N. General Assembly was made up of countries with very different political systems and there was not much all could agree on.  In spite of that however, Article 21 asserts

• (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives…. The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secrete vote or by equivalent free voting procedures.” 

Article 18 speaks of “freedom of thought, conscience and religion”, Article 19 “freedom of opinion and expression” and Article 20 “”freedom of peaceful assembly and association.”   These rights correspond to the First Amendment to the U.S. Constitution.  Turning our attention to that for the moment, I’d like to focus on “freedom of speech or the press” and how it has been drastically transformed today. 

The import of the special protections given to speech is not just to secure an individual right as an end in itself, but rather to establish a fundamental precondition for democratic self government.  The heart of the First Amendment is that it protects participation in the public dialog by which a society makes its collective decisions.  As I have argued elsewhere, “democracy is the possibility of collective decision making about collective action in pursuit of the common good.”  Thus this is a right not of individuals, but of citizens; a right to participate in the public conversation.

Thus it is a perversion to extend First Amendment protections to so-called “commercial speech.”  The purpose of free speech is not to protect advertisers in their efforts to sell us their wares, it is to guarantee citizens qua citizens access to the public ear.  It is to protect political speech above all else.  And it is the speech of citizens that is to be protected, not that of corporations. 

Alongside this right there is a corresponding responsibility, viz. the responsibility to listen to one another.  Declaring ones views to an empty room is not an exercise of free speech; it is an act of futility.  Others must be listening and prepared to enter into dialog.  The disengagement from public life of so many in the U.S. today, their absorption in private life and pursuit of self interest, is corrosive to free speech and the democracy that it is essential to.

There is a second problem here as well.  Under democratic theory, all citizens are to be equal.  That is what Thomas Jefferson meant when he wrote “all men are created equal.”  Yet, in response to efforts to place limits on political campaign contributions, the Supreme Court has ruled that money is speech and thus limits on contributions violate the First Amendment.  So, even though each citizen has one vote, those with more money get to dominate the public conversation that precedes the voting and that dialog is the very heart of a democracy.  As Al Gore has argued in his latest book, The Assault on Reason, “What passes for a national ‘conversation’ today is usually a television monologue consisting of highly sophisticated propagandistic messages.”  It is those with deep pockets who dominate our politics and that control is protected by a Supreme Court that has lost sight of the need for political equality in a democracy.

This further perversion of free speech has its roots in another perverse Supreme Court decision, this one going back to 1886.  In the landmark Santa Clara County v. Southern Pacific Railroad, the Court extended Fourteenth Amendment protections to corporations by declaring them to be legal persons.  Originally intended to give legal protection to freed slaves, this Reconstruction amendment said

• …nor shall any State deprive any Person of life, liberty, or property, without due process of Law; nor deny to any Person within its jurisdiction the equal protection of the Laws.

The Supreme Court extended to corporations the rights of us flesh and blood persons by enacting the legal fiction that corporations are persons.  This has opened the door to extending to them many of our political rights, such as First Amendment protection of free speech. This is reflected in the Court’s decision that placing limits on campaign contributions is a violation of free speech –in effect, money is speech.  This then gives immensely greater access to the public dialog to those with greater wealth, contrary to the democratic principle that all citizens must be equal.  Although corporations are not citizens –not yet, at least –these fictitious persons have acquired rights that have come to trump the rights of us mere mortals.  Unlike us, corporations can be immortal and their power and wealth has grown immensely through the generations. 

This becomes disturbingly clear if we return to the international scene –or, I should say, the global scene.  The corporate-led globalization that we have been witnessing over the past three decades and more, has been establishing the foundations of a global constitution in which the only citizens are transnational corporations.  They are the ones who make the decisions that affect our lives, even to the extent of being able to overrule the democratically made decisions of communities and even nations.  And states are charged with the responsibility to enforce those decisions on their own citizens.    

Alongside that development, in the U.S. we have also seen the expansion of executive powers in ways that threaten the civil liberties of its citizens.  This has been articulated by the neo-cons and the Federalist Society in what is called “the theory of the unitary executive.”  I think this should more accurately by called the Imperial Presidency.   Looking back at the intentions of the framers of the U.S. Constitution it is clear that a primary concern was to avoid an accretion of power in the executive.  To avoid this, a division of powers between three branches of government was established with a system of checks and balances among them.  More than protections of specific rights offered by the Bill of Rights, this was seen as the best guarantee of the liberties of citizens.  For it was this that was to prevent the emergence of a new king.

Nevertheless, over the last 75 years, under conditions of nearly constant war or perceived danger of war, there has been a gradual expansion of Presidential power above that of Congress -- the branch of government that was to have been the representative of the sovereignty of the people.  The Cold War in particular went far in institutionalizing expanded executive power.  But this clear trend, long evident, has now been greatly accelerated by the Bush-Cheney administration.  Vice President Cheney in particular has been a vigorous and tireless champion of what he sees as “restoring” Presidential powers, although in fact his restoration goes far beyond anything that has ever existed before in U.S. history.  From warrantless wiretaps and mail and electronic monitoring of citizens, to unchallengable indefinite detention of persons declared by the President to be enemy combatants, from kidnapping of persons to torture and extraordinary rendition, from claims of executive privilege in order to escape Congressional oversight to defiance of subpoenas, this Administration has exceeded all our fears of its intentions to shred the Constitution and the rule of law by asserting virtually unlimited power. 

Nowhere is this more evident than in the brazen use of presidential signing statements.  Historically, presidents have sometimes issued statements when signing a bill into law setting forth their reasons for supporting it and congratulating those who worked on the bill.  But in an extraordinary quantum leap of authority, this president has used these signing statements to set forth which parts of the law he is going to disregard.  The Constitution gives a president only two alternatives: either sign a bill into law or veto it.  It does not give him the authority to rewrite the law in a way that better suits him.  That authority rests with the legislative branch.  In effect, this president is usurping legislative authority and asserting a right to disobey duly enacted laws.  It is hard to see how this is very different from the actions of a king whose will makes law to which he is himself not bound. 

If this isn’t scary enough for you, you ain’t seen nothing yet.  Look at some of the executive orders that have issued from the White House in recent months.  On May 9 “National Security Presidential Directive #51” and “Homeland Security Presidential Directive #20” were issued to ensure continuity of government in case of a “catastrophic emergency” -- a term that is very broadly defined.  Under this executive order, continuity is ensured by giving the President virtually unlimited powers.  This goes beyond previously enacted emergency legislation in that this one does not allow Congress to override a Presidential declaration of emergency.  In other words, by his own order the President can make himself an unchallengeable ruler whenever he claims a sufficient emergency exists.  How is this any different from what General Musharraf has done in Pakistan? 

Now I want to suggest that there is a connection between the process of corporate globalization and the developing imperial presidency.  As Chalmers Johnson has argued, a republic and empire are not compatible.  If the U.S. is to continue to be the global promoter and protector of global capitalism, the kind of concentration of power and action in the Presidency that the neo-cons are confronting us with is necessary.  The problem is not just George Bush or Dick Cheney and replacing them will not restore democracy nor secure our accustomed rights.  It is the imperial role of our state and the corporations which it serves that is the source of the problem.  Capitalism has evolved into a global stage that now threatens the very rights and liberties that it has long proclaimed as its own. 

As we saw during the four decade-long Cold War, if sufficient fear can be induced into a people, they will accept ever greater power over them that promises to protect them and so willingly give up their rights.  This can be seen most recently by the passage in the House of a bill called The Violent Radicalization Homegrown Terrorism Prevention Act of 2007.  This establishes a commission to study the ideas that make people radical and thus presumably likely terrorists so as to be able to prevent such ideas from gaining currency.  This bill is now on a fast track for Senate passage, even though there is no evidence that “homegrown terrorism” even exists.  If passed, in the context of the so-called War on Terror it has the potential to set off a new wave of McCarthyism in the U.S. as the commission looks to find evidence to justify its existence.   

I want to close by briefly posing a basic philosophical question:  where do rights come from?  Through the ages various thinkers have claimed rights are God given, or are derived from Nature, or are rooted in the requirements to be fully human.  But if we take the question where rights come from as an empirical question, then it seems to me that the answer is that rights come from common consent in society and that such consent is won through social struggle.  Rights place claims on society that others are bound to respect. Often those claims can come to be recognized only against the opposition of others.  Whether it be the right of habeas corpus claimed by the English aristocracy against their king, or the right of African Americans to equal treatment against the prevailing racism of the society, or the right of Mexican immigrants to be treated with respect –all such rights have to be won through struggle.  Philosophic theories are weapons of legitimation in those struggles. 

So too, if we are to succeed in protecting rights today, struggle is required.  It will take continuing struggle to restore individual rights against an ever more powerful state.  It will take continuing struggle to restore the basic political rights of democracy.  It will take continuing struggle to overcome the dominant power of corporations over our lives.  It will take continuing struggle to restore the good name of our nation in the eyes of the world.  And it will take continuing struggle to catch up with the economic rights so widely accepted in many other countries.  We have our work cut out for us on this, the 59th anniversary of the Universal Declaration of Human Rights.  Let’s get to it.

Venceremos !

NOTES:

E.g. the Bolivarian constitution of Venezuela speaks of “ensuring overall human development” (Article 299) and declares “everyone has the right to the free development of his or her own personality” (Article 20). Article 102 speaks of “developing the creative potential of every human being and the full exercise of his or her personality in a democratic society.”

Cf. “United Nations Declaration of Human Rights Destroys Individual Rights” Capitalism Magazine http://capmag.com/article.asp?ID=210

Al Gore, The Assault on Reason (Penguin Press, 2007), p. 245. Cf. “A well-connected citizenry is made up of men and women who discuss and debate ideas and issues among themselves and who constantly test the validity of the information and impressions they receive from one another –as well as the ones they receive from their government.” Ibid. p. 254.

A simple reform that would go far in restoring this political equality would be to restore free access to the public airwaves for all citizens. Campaign finance reform has failed to curtail the influence of big money in politics because access to the media has to be bought. Advertising in the commercial media is a major campaign expense. This could be eliminated if radio and television were required to give free air time to all candidates. After all, the airwaves are public property and private interests are only licensed to use them, with attendant responsibilities to society. In Mexico, under a new reform the media are now required to give 48 minutes a day to political parties and parties are forbidden to buy advertising time. Needless to say, this was opposed by the country’s large television networks, as it would also be in the U.S.

Justice Hugo Black observed that in the half century following the Santa Clara decision, “less than one-half of one percent invoked [the Fourteenth Amendment] in protection of the Negro race, and more than 50 percent asked that its benefits be extended to corporations.” Quoted in Marjorie Kelly, ed., The Divine Right of Capital (Berrett-Koehler, 2001), p. 163.

“We are no longer writing the rules of interaction among separate national economies. We are writing the constitution of a single global economy.” Renato Ruggiero, director-general of the World Trade Organization, 1995. Quoted in Jeff Faux, Global Class War (John Wiley, 2006), p. 155.

“Watch Those Executive Orders”, The Progressive, September 2007, pp.8-9.

Chalmers Johnson, Nemesis: The Last Days of the American Republic (Henry Holt, 2006) and The Sorrows of Empire: Militarism, Secrecy and the End of the Republic (Henry Holt, 2004).

Cliff DuRand, “The Politics and Ethics of Fear” http://www.globaljusticecenter.org/articles/report_politicsfear.html

*a talk to the Unitarian-Universalist Fellowship of San Miguel de Allende, December 9, 2007

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