Johannes von Moltke — Comment on the Draft Report of the Commission on Unalienable Human Rights

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Mike Pompeo and Mary Ann Glendon
Secretary of State Mike Pompeo, right, unveils the creation of Commission on Unalienable Rights, headed by Mary Ann Glendon, left, a Harvard Law School professor and a former U.S. Ambassador to the Holy See, during an announcement at the US State Department in Washington, Monday, July 8, 2019. (AP Photo/Pablo Martinez Monsivais)

by Johannes von Moltke

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Author’s Note: In the summer of 2019, Secretary of State Michael Pompeo announced the formation of a “Commission on Unalienable Rights.” Headed by Harvard Law Professor and former U.S. Ambassador to the Vatican, Mary Ann Glendon, the group was composed largely of academics and charged with “providing the U.S. government with advice on human rights grounded in our nation’s founding principles and the principles of the 1948 Declaration of Human Rights.” I am on record along with many others as having been skeptical of the Commission since its founding. I consequently followed its proceedings and results with attention and interest, and I certainly learned a great deal during that period and from the Commission’s Draft Report. Unfortunately, little of what I learned softened my skepticism – or that of others: when the report was released earlier this summer, 230 human rights organizations, religious groups, activists, and former U.S. government officials objected to the Commission’s findings in a forceful joint letter. Meanwhile, citizens were invited to comment on the Draft Report during an exceedingly short comment period of approximately two weeks. I did so, submitting for the record my account, largely reproduced here, of why some of the commission’s findings roundly confirmed the reasons for my initial skepticism. Whereas the Commission by its own admission chose to disregard such public comments in submitting its barely revised Final Report, I find there is reason for continued and increasing concern as we watch the Commission’s recommendations translate into U.S. policy, both domestically and in the international arena.

 

Upon learning last year of the appointment of two colleagues in my academic field to Mike Pompeo’s newly minted “Commission on Unalienable Rights,” a group of fellow faculty members gathered to voice our concerns in an open letter that was subsequently signed by over 200 scholars in various fields of literary and cultural studies. In the letter, we expressed our worry over the work of a group commissioned by an administration whose record on human rights was already abysmal at the time and has only worsened in the intervening year. We also questioned the viability of a nation-centered approach to human rights based on the strictly limited review of founding documents of the United States and the 1948 Universal Declaration of Human Rights. The notion of human rights, we argued, “cannot be grounded in a national tradition, much less in the political agenda of a hyper-partisan administration. Pretending otherwise risks further undermining the already fragile international consensus of the post-war era.” Our letter implored our colleagues to use their voices to call out the Trump administration’s poor record on human rights at home and abroad, to speak up for the inviolability of human dignity, and to protect that dignity no matter the specific identity markers of any particular human being.

On this last point, the Draft Report delivers, in the sense that it repeatedly centers the notion of human dignity in its approach to unalienable rights, correctly pointing to the importance of this concept for the UDHR and harping, less persuasively, on the latter’s parallels with the founding documents of the United States. As the Report points out, the UDHR refrains from specifying the source of that dignity. But the Commission had no qualms doing so, offering natural law and God as the only two possible fonts of unalienable rights. It does so in the context of an argument that privileges religious freedom, along with the right to property, above all other human rights.

God and Nature or the Right to have Rights

This narrow construal of two rights as more fundamental than, and (theo)logically preceding, any others was to be expected – and was expected by many observers. It is as flawed now that it appears within the reasoned argument of the Report as it was when critics expressed concern and worry about the way this commission was primed to generate precisely such a result. More on this below; for now let us just note what a slanted notion of the freedom of religion underpins a government document that appeals to a single religious tradition and anchors the notion of human dignity in the “beautiful Biblical teachings” that equate the human to the image of the Christian God. By contrast, it was entirely in keeping with the narrow political and ideological purview of the Commission that the public presentation of the report should have been blessed by Cardinal Dolan. In his opening prayer, Dolan clarified for all where those unalienable rights come from. Addressing himself to God, he invited the assembled audience to praise “the creator who has bestowed upon and ingrained into the very nature of his creatures certain inalienable rights, acknowledged by the founders, enshrined in our country’s normative documents, defended with the blood of grateful patriots. You – you, dear Lord – have bestowed these inalienable rights.”

But it wouldn’t even have required this objectionable mix of religious and nationalistic registers to make the point. Clearly, this Report advocates a theologically anchored world view, to which the derivation of unalienable rights from natural law is hardly a serious alternative. Both God and Nature are metaphysical categories as sources of rights, allowing the Report to insist that every human being always has such rights, because they are universal, ahistorical, acultural. As such, they are posited to be uncontestable (here “unalienable”) – but of course, contestation merely moves one slot over. Now what is contested is either God or Nature; and although the Report does not even entertain the possibility of such contestation, there has been, to put it mildly, little agreement on the nature of either God or Nature.

In the context of the Report, these two metaphysical categories are not only closely aligned but also treated as allowing no further alternatives. Unalienable rights, according to the Report, derive either from Nature or from God, or else the very notion of such rights is meaningless. This is a willful misrepresentation of human rights discourse as it has developed over the centuries, including at the time of the American founding. For alternative accounts exist – but to engage them and thereby offer readers a fair and full accounting of the human rights tradition would have required entertaining a kind of anti-foundationalist thinking that is integral to the history of human rights theory but is entirely elided by the Report. This thinking finds a key expression in Hannah Arendt’s oft-invoked notion (though her name is never mentioned in the Report) of the “right to have rights” – a right that depends for its existence not on God or nature but on recognition by others. “We are not born equal,” she asserts for example; “we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights.” Rather than the appeal to first principles, what is at stake here is the assertion of a community that can be counted on to uphold certain rights and prevent them from being abrogated. “We hold these truths to be self-evident” is precisely such a speech act, which is why it needs to precede the positing of rights as unalienable in the Declaration of Independence.

In this line of thinking, unalienability can never shed its contingency – a point Arendt experienced personally and formulated forcefully in her chapter on the “End of the Rights of Man” in The Origins of Totalitarianism (1951). A few years later, Earl Warren, Chief Justice of the U.S. Supreme Court employed identical terminology. Though there is no evidence that he was aware of Arendt’s prior formulation, he, too, defined citizenship as a basic right “for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. His very existence is at the sufferance of the state within whose borders he happens to be. … [H]e will presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be … deprived of the right to assert any rights.”

Both Arendt and Warren came to similar conclusions, asserting the importance of basic human rights such as citizenship while recognizing that these are always fundamentally, literally alienable. The very assertion of the “right to have rights,” in other words, opens onto a conceptual abyss that the Commission refused to confront. To consider it seriously would have involved recognizing rights claims for what they have been, from the Declaration of Independence onward: “declarations that involve the invention and disclosure of a new political and normative world” (Ayten Gündogdu).

Sticking to Founding Principles or Picking from the Partisan Menu

The Commissioners might counter that Arendt and other critiques of human rights discourse were beyond their remit, for they had been tasked explicitly to confine themselves to a limited set of sources. Originally charged with “provid[ing] 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 was at first asked to decant old wine (founding principles) into new bottles (fresh thinking). But then even such specious renewal was further curtailed as the official Charter told Commissioners to stick to “our nation’s founding principles and the 1948 Universal Declaration of Human Rights” while taking care “not to discover new principles.” In other words, here was an advisory commission staffed with intellectuals told to put on blinders to intellectual history. It remains difficult for me to understand how any self-respecting scholar could accept such conditions. That the group was nonetheless formed and complied, then, speaks to its partisanship – not only on matters of politics, but also on matters of theory. As is evident in the omission of entire swaths of human rights discourse from consideration, the blinkered derivation of human rights from natural law and theology seems to have been all but agreed in advance. For to entertain any alternatives would have thrown open the notion of “unalienability” to time and politics, from which the Commissioners appear to have been keen to protect it in the name of God and nature.

The omission is not, I stress, for lack of knowledge; there were plenty of Commissioners, our two colleagues among them, who would have been familiar with anti-foundationalist political theory and philosophy. At one point, in the discussion of democracy and human rights, the authors do articulate the insight that “it is through democratic deliberation, persuasion, and decision-making that new claims of right come to be recognized and socially legitimated.” Even Mary Ann Glendon herself, the Commission’s chair, noted during the proceedings that “there can never be a closed catalogue of human rights because times and circumstances change.”

One is left to wonder, then, about the political motivations for leaving such insights behind, if not actively sequestering them, in formulating the Report’s conclusions. For their inclusion would have messed up the tidy, essentializing findings of the Report, which ultimately – and shockingly – manages to assert that the protection of human dignity boils down to two foundational rights: religious freedom, and the right to own property. Adopting the founders’ perspective, the Commissioners state: “Foremost among the unalienable rights that government is established to secure, …are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy.”

How to square the sheer arbitrariness of this assertion, its essentializing reduction of a rich 18th century discourse to two principal rights plucked from a present partisan menu, with the undeniable erudition that suffuses this report? Why these two, as opposed to the rights to life, liberty, and the pursuit of happiness, just to pick the most proximate? The claim seems downright ludicrous, further weakened by the flagrant contradictions that it draws in its wake: how on earth can one hold that the founders meant “property” to “encompass life, liberty, and the pursuit of happiness” when this flies in the face of even the most well-meaning historical semantics, and when other documents such as the Fifth Amendment, which the Report also quotes, clearly distinguish property from life and liberty?

The most disturbing contradiction, however, concerns the assertion of a hierarchy of human rights per se. The Report spends considerable time refuting such a hierarchy, pointing to the “integrated character” of rights in the Universal Declaration. The authors cite the Vienna Declaration’s important phrasing that “all human rights are universal, indivisible, and interdependent and interrelated.” According to the Commissioners, it “defies the intent and structure of the UDHR to pick and choose among its rights according to preferences and ideological presuppositions while ignoring other fundamental rights.” But such insights are reduced to lip service in view of the fact that the Draft Report does exactly that, endorsing “a sort of human rights cafeteria plan,” as Elisa Massimino and Alexandra Schmitt put it in a recent assessment. The Report picks and chooses property rights and religious freedom according to the preferences and ideological presuppositions that went into the appointment of the Commission itself, as numerous commentators pointed out already a year ago.

America First or the Decline of Empire

At the time, they also questioned the U.S.-centric scope of Pompeo’s brief, a concern we raised in our open letter as well. The Draft Report reflects an awareness of this issue, going to great lengths to outline a position on national sovereignty, democratic governance, and the international rights regime. While there is undeniable nuance in these reflections, they ultimately amount to a rationalization of the America First doctrine that runs from Lindbergh to Trump. Commissioned by the Secretary of State, the Report leaves it to U.S. foreign policy – and not to the instruments of any international human rights regime – to determine “which rights most accord with national principles and interests at any given time.” Like other passages that emphasize the role of national sovereignty in promulgating rights, this opens the door not only to establishing a hierarchy of rights, but also to their arbitrary invocation and application based on national (self-)interest. By contrast, a robust international human rights regime would be robust precisely by virtue of its ability to curtail such arbitrariness as well as limit national sovereignty.

Although the Report appears briefly to recognize this intentional aspect of international human rights in the Introduction (where it notes that, in the wake of Nazism and the Nuremburg trials, “a nation’s treatment of its own citizens would no longer be regarded as immune from outside scrutiny and repercussions”), it soon loses this perspective from view. Instead, the Report repeatedly harps on the importance of national sovereignty and displays little to no interest in the instruments and treaties – including those ratified or signed by the U.S. – that place it in an international framework. Attempts to finesse this issue in terms of foreign policy prerogatives and enforcement concerns notwithstanding, the testimony by invited experts who “showed outright disdain for the international human rights system” and downplayed the importance of [international] treaties” still resonates in the draft.

In light of this overall tone of the document, the claim that “after [the UDHR], no state may reasonably claim that the treatment of its own citizens in matters of human rights is solely a question of its own domestic affairs” rings hollow. For on the contrary, the report insists over and over again on the right of the United States to do just that – a normative claim that is buttressed by ample empirical evidence: the current administration tramples refugees’ rights with seeming impunity (here, too, the report provides normative cover, by broadly redefining refugees as migrants and impugning their motivations for flight). America, which Pompeo demands we think of as fundamentally “good” and “special,” is to stand as the beacon of freedom while it incarcerates children apart from their parents, eviscerates the right to asylum,  undermines the human rights of trans people serving in the military, and doesn’t even manage to ensure the basic right to vote. But of course none of those rights have to be construed as basic – that’s a priority reserved, we recall, for property and religious freedom.

Empirical failures, the Commissioners might retort, do not undermine or invalidate normative claims. The Report stresses at several strategic points that the United States has fallen short of its own standards: it spends time discussing the stain of slavery on the Constitution, reconstructing women’s fight to see their rights recognized as human and unalienable, and acknowledging the ways in which the U.S. still falls short of enacting those rights for all. It even makes up-to-date reference to the continued murders of black people by the police, here reduced to “social convulsions” after the “brutal killing of an African-American man” – George Floyd – who remains unnamed. The Report implicitly acknowledges that the human rights it reconstructs from founding documents and the UDHR are aspirational more than anything else. “We are keenly aware,” the authors aver, “that America can only be an effective advocate for human rights abroad if she demonstrates her commitment to those same rights at home.” But the Report manages to imbue even that acknowledgment with a distinctly jingoistic ring: “One of the most important ways in which the United States promotes human rights abroad,” the authors write in their Prefatory Note, “is by serving as an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity. Like all nations, the United States is not without its failings. Nevertheless, the American example of freedom, equality, and democratic self-government has long inspired, and continues to inspire, champions of human rights around the world.”

This strikes me as the language of a declining empire. In its decline, it seeks out and clings to new antipodes. And thus it is no accident that this Report zeroes in on China; given the events that have transpired in the weeks since its release – the shuttering of the Chinese consulate in Houston (and the Chinese retaliation in Chengdu), the renewed focus on China’s intellectual property rights infringement, and a “quad of bellicose speeches” from top administration officials, Pompeo among them – one could be forgiven for thinking that one of Pompeo’s key goals in commissioning the Report was to generate a founding document for a new Cold War. To point out this issue is not to engage in false moral equivalencies, as the new hawks like to claim and as the Report implies. Referring to China, Iran, and Russia, the authors warn that “There can be no moral equivalence between rights-respecting countries that fall short in progress toward their ideals, and countries that regularly and massively trample on their citizens’ human rights.” But this is beside the point. To question the administration’s China policy does not require us to overlook Chinese human rights infringements, let alone to equate them to American failings in this regard. On the other hand, it is impossible to reconcile the State Department’s tough stance on China with the President’s encouragement for Xi Jinping’s Uighur policies.

Just as China and the refusal of “moral equivalences” serves as a useful foil abroad for keeping up morale and keeping our eyes off America’s shortcomings, so does an influential piece of journalism offer an unlikely domestic antipode for the Commission’s and Pompeo’s self-congratulating rhetoric. In his remarks at the Report’s unveiling, the Secretary singled out for public shaming the “1619 Project,” spearheaded by Pulitzer Prize winner Nikole Hannah-Jones for The New York Times. Describing the project as driven by “Marxist ideology,” Pompeo claims that the New York Times “wants you to believe that our country was founded for human bondage. They want you to believe that America’s institutions continue to reflect the country’s acceptance of slavery at our founding.” Anyone who has even cared to glance at this pathbreaking project will recognize the absurdity of this claim: while the “1619 Project” does powerfully re-center the American narrative on slavery, its story-telling is driven, in the published piece and the influential podcast alike, precisely by the aspirational quality of America’s founding principles – only that these are now measured far more consistently against the lasting realities of its historical founding on slavery. But instead of the pristine American flag that Hannah-Jones’s father routinely flies even in the face of his enduring oppression, Pompeo sees only the red flag of Marxism – and manages to tie America’s newspaper of record to China, just for good measure: “The Chinese Communist Party must be gleeful when they see the New York Times spout this ideology.”

“Faithful, Quiet Citizens” or the Rollback of Rights

Though this is no longer the language of the Report, it is an expression of the political stance that led to the formation of the Commission, which was designed to buttress it in turn. While the Report is undoubtedly more muted, measured, and nuanced than the brash commissioning Secretary, it is nonetheless strident in its political posturing, its blinkered notions of natural rights, its celebration of armed, self-reliant citizens (“the right to self-defense, in the American tradition, provides opportunities for citizens to develop habits of self-reliance”), and its strenuous derivation from the nation’s founding documents of limited government as the ostensible precondition of a democratic, rights-respecting polity. Translated back into Pompeo-speak, this amounts to a deeply regressive and partisan world-view, pitched with barely veiled disdain against the protestors who were marching for the recognition of their rights even as the Secretary delivered his remarks: “Free and flourishing societies cannot be nurtured only by the hand of government. They must be nurtured through patriotic educators, present fathers and mothers, humble pastors, next-door neighbors, steady volunteers, honest businesspeople, and so many other faithful, quiet citizens.” Faithful, quiet citizens, indeed. Rest in Peace and Power, George Floyd, Breonna Taylor, John Lewis.

For all its historical detail and theoretical erudition, the Commission on Unalienable Rights has licensed bare-faced propaganda, directed alternately abroad and at the administration’s domestic constituents, whose free speech it happily impugns. Our colleagues on the commission either allowed themselves to be instrumentalized for this propaganda project, or actively signed up to support it – at this point, the difference hardly matters anymore. Anyone who thought this report would outrun its intended effects, or that it would seriously nuance the debate, was mistaken and will be disappointed. By contrast, the Draft Report amply confirms the concerns of those, including myself, who worried about the Commission’s “general skepticism toward international human rights, that there are too many rights, that rights protections should be rolled back, that there is a hierarchy among rights, and that religious freedom is one of the most important rights, if not the most important.” The resulting document is a pseudo-intellectual fig leaf for a Secretary of State who blithely talks about the US role in leading a new international order even as the administration he represents is actively withdrawing from that order where the environment, public health, and arms agreements are concerned (not to mention that they never even signed on to the international court). Meanwhile, the Report advances the government’s religious agenda and helps legitimize a belligerent disengagement from China through its erudite and patriotic historical narrative. The Commission’s Report could be described as a consummate form of ideological window dressing if it didn’t also pull back the curtain for all to see this administration going about its work.

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Johannes von Moltke is Professor of German and Film, Media & Television at the University of Michigan, where his research and teaching focus on film and German cultural history of the 20th and 21st centuries. He is the author of The Curious Humanist: Siegfried Kracauer in America (2015) and No Place Like Home: Locations of Heimat in German Cinema (2005).

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