Democracy and Homeland Security: Strategies, Controversies, and Impact
An Either-Or Choice? Human Rights Versus Homeland Security
Author’s note: The views contained herein are solely those
of the author and do not necessarily reflect the views or opinions of the
U.S. Coast Guard, Department of Homeland Security, or any other agency or
department of the
One hundred years from now, the 1990s may well be recalled
as the decade of human rights. The advanced democracies, sanctioned by the
United Nations, waged multilateral operations against regimes accused of
violating human rights in
By the end of the 1990s, human rights values replaced the cold war as a unifying force among Western democracies. Although long on the agenda of liberal theorists, human rights gained new credence among policymakers as they sought a common vision of a new world order. The United Nations Declaration on Human Rights and its related conventions served as sufficient justification for transgression of the sovereignty of less democratic societies.
The emergence of human rights as a force in Western democracies is profound not merely because it occurred, but because it occurred in spite of a widening fissure among Western democracies on what human rights encompass, to whom human rights apply, and how conflicts between transnational human rights and national rights regimes should be resolved.
This divergence over human rights is most pronounced between
Today, the EU and its member states are extending human
rights protections to their citizenry and residents, even if constitutional
change is necessary. Most notable is the EU extension of human rights protections
based on gender, age, sexual orientation, and cultural identity. In doing
so, the EU is redefining both human rights and democratic citizenship. In
Three domestic forces shape
The ramifications for American democracy of these three
forces are profound, especially following terrorist attacks on the
Despite post–World War II codification of human rights in United Nations and European declarations, conventions, and treaties,1 global debates continue over the nature, content, and legitimacy of human rights. Disagreements over human rights may be due to the voluntary compliance found in UN human rights regimes. Countries defend noncompliance by questioning human rights. But also, United Nations regimes incorporate conceptions of human rights that remain controversial even within Western democracies.
Human rights controversies encompass classes of rights (individual rights versus democratic rights), categories of rights (civil, political, social, economic), the foundation and nature of rights (constitutional, moral, or natural, and hence, culturally relative or universal), and the status of rights (absolute versus consequential). Debates also exist over human rights enforcement, adjudication, and effects on state sovereignty, as well as on whom human rights impose duties—e.g., only state actors or also nonstate actors.
Applying these categories, the UN human rights regime and the Council of Europe and European Union regimes define human rights as universal rights that include rights to self-determination as well as civil, political, social, and economic rights. Such rights are enforceable by transnational bodies, such as the International Criminal Court, the European Court of Human Rights, or the European Court of Justice, which transgress state sovereignty.
But debates over human rights are not as complicated as they appear to be. Three schools of thought dominate: universalist, cultural relativist, and associationist.2
The universalist school is best reflected in practice in the Charter of Fundamental Human Rights of the European Union. Absolutist in its foundation on principles of human dignity and worth, the Charter establishes clear duties for state and nonstate actors to enforce the civil, political, economic, and social rights of EU citizens. Among newer protections in human rights regimes, the Charter prohibits discrimination outright based on religion, gender, and sexual orientation; establishes cultural and linguistic rights; and delineates rights of children and the elderly. Under EU treaties, the Charter is supreme over member states and enforceable in the European Court of Justice, to which the European Commission, any member state, and any citizen may appeal for relief.
The UN charter, Universal Declaration of Human Rights, and human rights conventions are similarly absolutist in principles of human dignity and worth and in some civil and political rights. For example, the International Covenant on Civil and Political Rights includes a “no-derogation” clause. Even though the Covenant permits derogation during public emergencies, certain fundamental protections are exceptionless. These include the right to life; restrictions on the death penalty for all but the most serious crimes; prohibitions against genocide, torture, and cruel, inhumane, or degrading treatment; prohibition of slavery and servitude; and guarantees of the freedom of thought, conscience, and religion. Finally, Article 16 affirms that “Everyone shall have the right to recognition everywhere as a person before the law.”3 Rights to self-determination, due process, liberty of movement, and other political rights may be limited in times of emergency. Unlike the EU Charter, UN human rights conventions lack enforcement mechanisms on nation-states that are supreme over state sovereignty.
Human rights advocates justify universality, including infringements of sovereignty, most often through appeals to the common Western philosophical foundations of the Stoics, Greeks, and Romans;4 natural law doctrines of the universal church;5 the Grotian tradition in international law;6 social contract theorists such as Hobbes, Locke, and Rousseau;7 the American Declaration of Independence; and the Kantian categorical imperatives. These imperatives say to “Act in such a way that you always treat humans, whether in your own person or in the person of any other, never simply as means, but always at the same time as an end.”8 But the great Asian philosophical and religious traditions, too, are sometimes cited as foundations for human rights. The inseparability of individuals and community, the recognition of a good or authority higher than the ruler, the individual pursuit of a higher state of being, and the sense of honor are among common themes in Hinduism, Buddhism, Islam, and the Chinese humanist tradition.9
Defenders of universal human rights sometimes blend the Western and Eastern traditions. The “cosmopolitan” defense of rights is inherently an associationist one, rejecting natural law and individualistic and contractual defenses of rights. In other words, a person may become better than the individual self through membership in a community that recognizes and enforces a “higher kind” of human dignity and an inviolate respect for the essence of what it means to be human. Such respect and dignity demand absolute prohibitions against degradation and torture and assurances of “equal consideration” within one’s community. Cosmopolitanism includes a sense of obligation to other persons that Dworkin discusses as inherent in associative and principled communities.10 Rawls similarly discusses the associational nature of human rights by stating:
The features of human rights as I have so far described them have been accounted for in two ways. One is to view them as belonging to . . . an associationist social form that sees persons first as members of groups—associations, corporations, and estates. As such members, persons have rights and liberties enabling them to meet their duties and obligations and to engage in a decent system of social cooperation. What have come to be called human rights are recognized as necessary conditions of any system of social cooperation. . . . These rights do not depend on any particular comprehensive religious doctrine or philosophical doctrine of human nature. . . . It is important to see that an agreement on the Law of Peoples ensuring human rights is not an agreement limited only to liberal societies.11
In contrast, cultural relativist conceptions of human rights
emphasize the autonomy of peoples, especially ethnic or religious peoples.
Relativists often stress self-determination claims, such as those of indigenous
peoples in North America and the Basques in
The debate between universalists, relativists, and associationists is a debate over the scope of human rights. Should human rights be limited to fundamental principles of individual rights with the potential to be “absolute and non-conflictable” as Feinberg suggested?13 Or, to be meaningful, must human rights incorporate democratic rights and rights to self-determination? Democratic rights and self-determination elicit the most opposition from non-Western states.
What are the American concerns about human rights and rights regimes? The answer is twofold: constitutional rights and American sovereignty.
Concern for constitutional rights. The American constitutional system establishes a system of negative rights and liberties.14 In all respects, these rights are consequential, except for the freedoms of conscience and belief that are penumbral to the First Amendment. Essentially civil and political in nature, rights included in the Bill of Rights and in the 13th, 14th, 15th, 19th, and 26th Amendments establish the foundations for self-determination and political participation and protect against arbitrary governmental actions against individuals.
Missing from American constitutional rights are nonderogatory rights, except for belief and conscience. Also missing are universal rights to human respect and dignity and positive social and economic rights. In fact, all so-called inalienable rights in the American tradition are prima facie rights only.
Additionally, few American constitutional rights are universal in application. Constitutional rights are limited based on origin or citizenship, status as indigenous peoples, gender, sexual orientation, and age, despite the equal protection clause of the 14th Amendment. The Supreme Court’s delineation of multiple “tests”15 for claims to equal protection of the law translates, in reality, to “the nature and validity of your claim depend upon who and what you are.” Such discriminations are prohibited in most human rights regimes.
These discriminations are widely known and tolerated in
Americans revere their constitutional rights. Crusades by the excluded to achieve them have dominated much of American social history. But these rights were never intended to be the “end-state” of American liberty; rather, they were the means to the independence necessary to achieve a higher level of human existence. As Wood concludes in The Radicalism of the American Revolution:
Thus despite all their acceptances of differences among people—differences created through the environment operating on people’s senses—most revolutionaries concluded that all men were basically alike, that they were “all partakers of the same common nature.” It was this commonality that linked people together in natural affection and made it possible for them to share each other’s feelings. There was something in each human being—some sort of moral sense or sympathetic instinct—that made possible natural compassion and affection and that bound everyone together in a common humanity.17
The “common nature” of persons is the foundation of universal
human rights. Universal human rights, it could be argued, were acknowledged
by the founding fathers all along, perhaps incorporated in the Ninth Amendment’s
guarantee that “The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.” As
Concern for American sovereignty. Concern for American
sovereignty—cultural, legal, and political—dominates American foreign policy
at the beginning of the twenty-first century. Cultural sovereignty is a well-worn
theme in American history that alternates between claims of American exceptionalism
and sometimes xenophobia about preserving American identity. The problem
is reaching consensus on what is “American.” Opposition to enforcing human
Elements of the dominant American civic myth are well documented.
They include beliefs that American founding values were those of capitalistic
individualism as opposed to Athenian and Roman citizenship; liberal democracy
instead of republicanism; competitive self-interest instead of disinterestedness
and civility; Protestant Christianity instead of Enlightenment reason; and
a pervasive superiority of white, heterosexual males over all others, a belief
anchored first in biblical scripture and later reinforced by the theories
Regarding legal sovereignty, the
Aliens may invoke it [the ATS] as a means of obtaining judicial review of the Executive’s efforts to enforce this Nation’s criminal laws with the assistance of other nations, as in this case, or the Executive’s conduct of military operations in which foreign allies may be involved, including the war on terrorism. For example, the next-friend petitioners in Al Odah v. United States, supra, included a claim under Section 1350 alleging that the military’s detention of aliens at the U.S. Naval Base at Guantanamo Bay, Cuba, violated the law of nations and treaties entered into by the United States, including the Geneva Convention.23
The government in defending American sovereignty thus rejects
American unwillingness to defer to (1) human rights claims
American sensitivity to compromising sovereignty under human
rights treaties, however, directly conflicts with American positions under
other international agreements, especially in the area of international trade.
In fact, the
American intellectual property goals are especially relevant
for human rights because they include rights claims. The
Globally, intellectual property protection by the 1980s
was weakening. The
In response, the
In September 1985 President Reagan, in a major speech, emphasized
the importance of global intellectual property rights to the
For nearly ten years, the
The arguments the
1. Global rights principles, such as intellectual property rights, should preempt national laws and rights regimes when national regimes offer lesser rights protections, impinging upon the rights of other states.
2. International rights regimes can serve the interests of states within the global community, as well as the interests of individuals.
4. Foreign nationals may possess claim rights under the national laws of a state for rights violations both inside and outside of the borders of that state.
American concessions of sovereignty to international bodies
and the access of foreign nationals to American courts also were incorporated
within the North American Free Trade Agreement (NAFTA). Under Chapter 11,
international tribunals review appeals by Mexican and Canadian nationals
claiming unjust treatment by American courts during adjudication of claims
arising under NAFTA. If an international tribunal rules against the
In 2003, for example, the
The U.S. international religious rights policies provide insights into its policies regarding other human rights. American actions to challenge religious persecution unilaterally, especially against Christians, signal its willingness to challenge state sovereignty on behalf of human rights.30 The 2003 U.S. Annual Report on International Religious Freedom begins as follows: “religious freedom is a universal value, not confined to any one region or faith.” Although religious rights are human rights protectable under human rights treaties, the United States rarely chooses to pursue religious claims under treaty regimes. As President Bush concluded, “successful societies guarantee religious liberty—the right to serve and honor God without fear of prosecution.”31
American concessions on sovereignty in the areas of international trade and religious freedom stand in stark contrast to American actions under human rights treaties. Since the United States is not opposed in principle to (1) universal rights, (2) international self-executing treaties with enforcement provisions, and (3) compromise of sovereignty necessary for enforcement of treaties and rights, why the ambivalence toward human rights treaties and regimes? The answer lies in American social changes after World War II.
The American story is a well-known story of expanding rights and citizenship. Although the founding fathers acknowledged that some persons lacked full citizenship in the new republic, the ideals of liberty and equality were powerful. They promised that no individual was born into a predetermined social status. But the founding fathers were not egalitarians. Those entitled to full citizenship were those like themselves, the liberally educated and disinterested “natural aristocracy.”32 Much like the Puritans before them, the founding fathers excluded indigenous peoples, persons of African descent, and women from equality under coverture principles imbedded in the common law.
During the nineteenth century, liberal democrats debated
slavery and the status of women and indigenous peoples, both Native American
and Mexican. But liberal democracy still rejected equal citizenship for the
three underclasses. After Reconstruction, vagrancy laws limited the freedom
of former slaves, and Jim Crow laws defined a rigid social and legal hierarchy.
Provisions of the Treaty of Hidalgo extending
The twentieth century became the century of rights. But still, expansion of citizenship and rights was neither politically nor generally popular. Legal rights advances had more to do with the skills of Presidents Harry S. Truman and Lyndon B. Johnson and Chief Justice Earl Warren. All three had ambiguous records on rights. But their leadership in responding to rights claims after World War II resulted in advances. By the end of the century, legal and political rights for the original underclasses came closer to reality than at any other time, although gaps in equal protection of the laws remain.
The American story of social and economic equality, however, is a far murkier picture. In socioeconomic and cultural status, indigenous peoples, African Americans, and women, among others, still lag their white male counterparts. This cultural gap emerged with new intensity in policy debates over rights during the 1980s and 1990s, in part fueled by increased global attention to human rights. Most human rights regimes embody cultural, social, and economic rights that exceed American constitutional rights in scope and application.
American failure to enforce human rights treaties, therefore,
has little to do with state sovereignty per se. Rather, enforcing human rights
treaties would expand the nature, scope, and application of rights in
Today, evangelical values and beliefs increasingly define American constitutionalism, as evangelicalism has emerged from the world of faith into the worlds of national politics and policy. Understanding American resistance to human rights, therefore, necessitates familiarity with contemporary evangelical worldviews and policy goals.33
Contemporary evangelicals share many beliefs with their fundamentalist predecessors: the bodily resurrection of Christ; substitutionary atonement (Christ’s death was actual payment for human sins); belief in inerrant scripture, without factual or scientific error; and the decline of human history that would lead to the literal second coming of Christ.34 Evangelicals after World War II, however, sought to broaden fundamentalism’s public appeal. Accepting Jesus’ direction, in Matthew 28:19, to “go . . . and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost,”35 today this mission includes influencing public policy at home and abroad.
Contemporary evangelicals share a worldview founded upon common assumptions about gender, the family, and American exceptionalism. The evangelical worldview directly conflicts with both universal, culturally relative, and associationist conceptions of human rights.
Evangelicals believe in a universal, God-given moral order
that is bounded by clearly and rigidly defined gender roles reflected in
traditional marriage and nuclear family relationships. Women are feminine
in nature; men are masculine. “Differences of sex are not to be toned down
and obliterated, but to be accentuated and brought into moral harmony. .
. . A masculine woman and a feminine man are monstrosities to be abhorred.”36 The
moral laxity of contemporary
Gender identity “confusion,” especially homosexuality, also is abhorrent to evangelicals. Homosexuality is an abomination, but for many evangelicals, a perversion of choice by homosexuals that can be overcome through faith.
Evangelical concerns about
Evangelicals also believe in American exceptionalism as
a covenant nation. In a 1957 editorial, United Evangelical Action magazine
noted, “[Americans] look upon the
Evangelicals also advocate an active American internationalism and foreign policy, but with a narrowly defined scope. They seek to promote evangelical Christianity among the world’s population. In its foreign policy, the United States unilaterally should target those nations that persecute and deny religious freedom to Christians.42
As a covenant nation,
This view of justified, preemptive warfare against nonbelievers is not, of course, a view limited to American evangelicals. Rawls discusses “persecuting zeal” as the “curse of the Christian religion” in general as “Christianity punished heresy and tried to stamp out by persecution and religious wars what it regarded as false doctrine.”44 Barber draws upon Marty and Appleby’s five-volume study of fundamentalisms to discuss the inherently self-protective nature of fundamental religions that “fight back, struggling reactively against the present in the name of the past; they fight for their religious conception of the world against secularism and relativism.”45
Similarly for evangelicals,
At the beginning of the twenty-first century, the nations
of the Council of Europe and the European Union enforce systems of human
rights that are more comprehensive than American rights in scope and application.
American constitutional rights serve as a “cap” on American rights. We appear
unwilling to enforce human rights treaties. We cite concerns about a loss
of sovereignty. Yet, under other treaties, the
The answer to this question does not lie in American constitutionalism. The Constitution certainly allows for the existence of other, nonconstitutional rights. The Constitution also could be amended to include human rights protections, as it was amended after the Civil War to expand rights protections for former slaves.
The answer also does not lie in protecting American sovereignty. We compromise sovereignty to protect rights when it is American ideas, inventions, goods, profits, and even beliefs that are being protected. Indeed, we push, prod, and threaten recalcitrant nations into compromising their sovereignty, too. We willingly sacrifice our sovereignty and that of other nations to reduce weapons of mass destruction. We ignore the sovereignty of nations when we impose unilateral sanctions in pursuit of religious rights within those nations.
The only plausible explanation for American resistance to
human rights is almost too offensive to
Every society shares a Weltanschauung, or worldview,
that shapes its sense of itself. It is a lens through which a people views
and interprets the world, and its place within it. Could human rights violate
our shared concept of
The American civic myth, as articulated by Huntington and
others, extols American exceptionalism and closely resembles modern evangelical
worldviews of our moral foundations and our exceptionalism. Our domestic
policies increasingly reflect evangelical beliefs about family, gender, and
faith—not civil, political, or economic goals. American security and foreign
policies, too, appear shaped by evangelicalism, from the “evil empire” of
Accepting human rights means acknowledging human dignity
and respect for all persons. It means enforcing the rights of persons of
all races, ethnicities, religions, genders, ages, cultures, and sexual orientations.
It means accepting that religious and secular moral frameworks are equally
valid if they value human respect, dignity, and rights. And it means that
The moral foundations of human rights and the evangelical
worldview are nearly irreconcilable. The former are predicated upon tolerance
and the latter upon absolutism. Are human rights also irreconcilable with
The America of republicanism and liberal democracy trusts in democracy’s evolutionary nature and resilience, founded upon a profound belief in the individual’s desire and capacity to be free in body, spirit, and mind and upon the dignity and worth of all persons. It would insist upon homeland security and human rights, and it would find a way to balance the two without sacrificing either.
Ultimately, the decision on whether human rights and homeland security are an either-or choice belongs to “we, the people.” In choosing, we will define American identity for the twenty-first century. If we do nothing, we risk the loss of both our rights and our security. As Walzer has warned, “If we are not willing to rule in our turn, other men will rule out of theirs. They will call us citizens, but we will be something less.”46
1. See, for example, UN Universal Declaration on Human Rights (1948); International Covenant on Civil and Political Rights (1976); International Covenant on Economic, Social and Cultural Rights (1976); Convention on the Prevention and Punishment of the Crime of Genocide (1948); Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1987); Convention on the Elimination of All Forms of Racial Discrimination (1969); Convention on the Elimination of All Forms of Discrimination against Women (1981); Convention on the Rights of the Child (1990); and Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1991). Texts of these treaties are located at www.un.org/rights/index. See also European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), www.coe.int/treaty/en/Treaties; Charter on Fundamental Human Rights of the European Union (2003), www.europarl.eu/int/charter; American Convention on Human Rights (1978), www.oas.org/jurdico/english/Treaties; and African Charter on Human Peoples’ Rights (1986), www.african-union.org/Official_documents.
2. Although universalist and cultural relativist conceptions of human rights are well known, the term associationist is drawn from Ronald Dworkin’s discussion on the nature of associative communities in his book Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986). Associationist theories of human rights establish less comprehensive principles of human rights than most universalists (e.g., self-determination is excluded), but they do acknowledge some universal rights—given that humans are social animals with a capacity to be moral (i.e., not purely self-interested) beings.
3. UN General Assembly, “International
Covenant on Civil and Political Rights,” adopted and opened for signature,
ratification, and accession by General Assembly Resolution 2200A (XXI),
21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force
5. See, for example, St. Thomas
Aquinas, Summa Theologica, I-II (
6. Hugo Grotius, The Rights
of War and Peace (1625;
8. The Kantian categorical imperatives are found in Immanuel Kant, Groundwork for the Metaphysics of Morals, Cambridge Texts in the History of Philosophy (Cambridge: Cambridge University Press, 1998).
9. Seyom Brown, Human
Rights in World Politics (
12. UN General Assembly, World
Conference on Human Rights, “Report of the Regional Meeting for
14. Distinctions between negative
and positive freedom and rights parallel those discussed in Isaiah
15. The constitutional tests referred to here are the “strict scrutiny” standard applied to discrimination based on race, ethnicity, and national origin; the “heightened scrutiny” standard applied to discrimination on the basis of gender; and the “rational basis,” or “reasonableness,” standard applied to all other discrimination, such as on the basis of age. For a concise review of Equal Protection Clause standards and Supreme Court precedents, see Gregg Ivers’s American Constitutional Law: Power and Politics (Boston: Houghton Mifflin, 2002), chap. 11.
16. For a discussion of federal
complicity in the maintenance of the southern system of Jim Crow segregation,
see Anthony Marx’s Making Race and Nation: A Comparison of the
18. Thomas Jefferson, “Letter to
Thomas Law, Popular
19. Rogers M. Smith, Civic Ideals:
Conflicting Visions of Citizenship in
20. For defenders of the American
civic myth, see as examples Daniel J. Boorstin, The Genius of American
Politics (Chicago: University of Chicago Press, 1953); Gunnar Myrdal, An
American Dilemma: The Negro Problem and American Democracy (1944; reprint,
22. Brief for the
26. For discussions about U.S. positions on intellectual property rights, see the following examples: President’s Commission on Industrial Competitiveness, Preserving America’s Industrial Competitiveness: A Special Report on the Protection of Intellectual Property (Washington, D.C.: GPO, 1985); and President’s Advisory Committee for Trade Negotiations, Unpublished Report, Chairmen’s Report on a New Round of Multilateral Trade Negotiations (Washington, D.C.: Executive Office of the President, Office of the U.S. Trade Representative, 1985).
27. Article I, section 8 (Powers of Congress) of the U.S. Constitution states the following: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
28. Recent international tribunal reviews of American court decisions pursuant to NAFTA are summarized in Adam Liptak, “Review of U.S. Rulings by NAFTA Tribunals Stir Worries,” New York Times (April 18, 2004), sec. A.
29. U.S. Department of State, “Executive Summary,” in International Religious Freedom Report for 2003, report submitted to Congress in compliance with section 102 (b) of the International Religious Freedom Act of 1998, released by the Bureau of Democracy, http://www.state.gov/g/drl/rls/irf/2003/27185.htm.
a discussion of unilateral actions by the
31. U.S. Department of State, “Introduction,” in International Religious Freedom Report for 2003, report submitted to Congress in compliance with section 102 (b) of the International Religious Freedom Act of 1998, released by the Bureau of Democracy, http://www.state.gov/g/drl/rls/irf/2003/27183.htm.
33. Modern evangelicalism’s early influence on American policy agenda setting is well documented. For example, see Anne C. Loveland, American Evangelicals and the U.S. Military, 1942–1993 (Baton Rouge: Louisiana State University Press, 1996); Linda Kintz, ed., Between Jesus and the Market: The Emotions That Matter in Right Wing America (Durham, N.C.: Duke University Press, 1997); William Martin, With God on Our Side (New York: Broadway Books, 1996); Tanya Melich, The Republican War against Women (New York: Bantam, 1996); Abrams, Influence of Faith; and Steve Brouwer, Paul Gifford, and Susan D. Rose, Exporting the American Gospel: Global Christian Fundamentalism (London: Routledge, 1996).
a discussion of American evangelicalism’s influence outside of the
B. Fitzwater, Woman: Her