Democracy and Homeland Security: Strategies, Controversies, and Impact

Part I. Papers Presented in Panels 1–4

An Either-Or Choice? Human Rights Versus Homeland Security

Judith A. Youngman, U.S. Coast Guard Academy

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 U.S. government.

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 Bosnia, the former Yugoslavia, and other regions. Human rights trials held the leaders of those regimes accountable. South Africa finally laid apartheid to rest. Brazil debated the desirability of “affirmative action” to achieve greater parity amongst its citizens.

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 the United States and the European Union (EU) and its member states. The fissure centers on the human rights claims of citizens, residents, and persons subject to legal jurisdiction within the advanced democracies. It is a fissure with greater implications for the United States than for other democracies because it calls into question America’s self-identity as the “land of liberty.”

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 contrast, the United States rarely extends human rights protections within its borders, restricting rights to those constitutionally defined. The denial of human rights to suspected terrorists is the latest iteration of America’s refusal to acknowledge human rights claims.

Three domestic forces shape America’s worldview that human rights may be applicable to other nations but rarely applicable to America itself. All emerged simultaneously with the ascendancy of human rights since World War II. First, American exceptionalism reemerged as a dominant component of American identity. Second, stricter interpretations of constitutional rights in the 1980s and 1990s made enforcement of human rights in U.S. courts more unlikely. Third, evangelical Christianity emerged as a major force influencing domestic and foreign policy, as well as constitutional rights.

The ramifications for American democracy of these three forces are profound, especially following terrorist attacks on the United States in 2001. Human rights and homeland security increasingly are cast as an either-or choice; but they do not have to be. To understand why they are not diametrically opposed, I discuss the following two issues: (1) what human rights are and why America rejects what our European allies embrace, and (2) how evangelical Christianity influences our perceptions of human rights and homeland security.

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 Spain. Asian states also often support relativist views of rights. In 1993, for example, in preparation for the World Conference on Human Rights in Vienna, Asian countries developed a declaration that concluded the following: “While human rights are universal in nature, they must be considered in context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of the national and regional peculiarities and various historical, cultural, and religious backgrounds.”12 As the declaration of Asian states suggests, however, relativists still may acknowledge the universality of basic human rights.

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 the United States. Certainly, the American system of Jim Crow was intentionally perpetuated by political elites for more than sixty years in spite of the 14th Amendment’s prohibitions against racial discrimination.16 America is one of the few advanced democracies in which women and gays are denied equal access to military service. Congress is debating a constitutional amendment prohibiting gays from marrying. This would be the first constitutional amendment to deny a legal “privilege.”

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 Jefferson stated, “the Creator would indeed have been a bungling artist, had he intended man for a social animal, without planting in him social dispositions.”18 But American rights evolved in practical application as consequential rights.

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 rights within U.S. borders and against U.S. interests internationally is often justified on the need to preserve American cultural identity and “civic myths.” Civic myths help explain why a community was formed, who is eligible for membership, and the community’s values. Civic myths, however, also may demand reverence for a society’s laws, beliefs, or founding and may foster prejudices against those whose values differ. As Smith warns, “leaders who propagate civic myths often merge their longings for power into narratives of meaningful civic membership that include elements that they genuinely value, such as shared religion, ethnicity, language, history, or political ideology. . . . Civic myths may also cloak the exploitation of citizens by their leaders, demonize innocent outsiders, and foster invidious inequalities among the members of a regime.”19

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 of sociobiology.20 Huntington in his recent article in Foreign Policy emphasizes the centrality of Protestant values to America, especially “the belief that humans have the ability and the duty to try to create a heaven on earth.”21

Regarding legal sovereignty, the United States increasingly rejects judicial remedies for human rights violations pursued in national and international courts. The United States refused to become a signatory to the International Criminal Court, citing fears that the court might hold American soldiers accountable for falsely claimed human rights violations. The United States also limits the application of many human rights treaties by interpreting them as “non–self-executing.” That is, they may be implemented and enforced only through national legislation, which codifies treaty or agreement provisions in domestic law. For example, the United States deemed non–self-executing both the International Covenant on Civil and Political Rights and the Torture Convention. In other cases, the United States did not ratify human rights agreements, such as the American Convention on Human Rights, or delayed ratification for decades as with the Convention on Genocide.

The United States also challenges human rights claims made under U.S. law. The government’s amicus curiae in Sosa v. Alvarez-Machain (2004) rejects thirty years of precedent permitting foreign nationals to seek tort relief in American courts for extraterritorial human rights abuses. The Alien Tort Statute (ATS), 28 U.S.C. 1350 (1789), provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The government argued, “No one [nation] has a right to sit in judgment generally upon the actions of another; at least to the extent of compelling its adherence to all the principles of justice and humanity in its domestic concerns. . . . It would be inconsistent with the equality and sovereignty of nations, which admit no common superior.”22

The United States appears to be arguing for the absolute sovereignty of all nations. As arguments later in this chapter suggest, however, the government is arguing only for the absolute sovereignty of the United States to pursue its interests. As the government concludes,

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 U.S. federal court jurisdiction over rights claims made under the laws of nations, and reserves to the political branches definition of “the scope of international rights or obligations through legislation, treaties, or less formal agreements.”24

American unwillingness to defer to (1) human rights claims against the United States made by foreign governments and foreign nationals, (2) the judgment of human rights tribunals, and (3) the jurisdiction of American courts over human rights claims faced new tests in 2004. The International Court of Justice in March 2004 upheld human rights claims of Mexican nationals sentenced to death by American courts. The International Court ordered that each case be remanded to U.S. courts for review, a position that the government opposed in its arguments. Federal court jurisdiction over contractors of the United States accused of war and human rights crimes in American-occupied Iraq remains unclear. And the Supreme Court heard oral arguments on the access to federal courts of foreign detainees at Guantanamo Bay, Cuba, despite government objections to federal court jurisdiction.25

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 United States urged other nations to compromise sovereignty under the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) less than a decade ago. Its objectives during the Uruguay Round of Multilateral Trade Negotiations were to (1) limit state sovereignty over foreign investors, intellectual property regimes, and even industrial policies; and (2) strengthen enforcement mechanisms within the WTO.26 American leadership in strengthening trade treaties coincided with American resistance to human rights treaties during the 1980s and 1990s.

American intellectual property goals are especially relevant for human rights because they include rights claims. The United States unilaterally punishes foreign nations that permit the violation of U.S. intellectual property rights. In the Uruguay Round, the United States also successfully pursued broadened intellectual property principles and enforcement mechanisms under the WTO through a self-executing treaty.

Globally, intellectual property protection by the 1980s was weakening. The United States under Article I of the U.S. Constitution was one of few countries recognizing intellectual property rights.27 Most international agreements that covered intellectual property depended upon the protections accorded by each country domestically. Canada in the 1970s rejected the notion of ownership rights and instituted forced compulsory licensing of foreign technologies to Canadian citizens. Also in the 1970s, several newly industrialized countries abolished patent and copyright protections for technologies in which foreign companies had predominant market share. Finally, in 1981 the World Intellectual Property Organization (WIPO), the existing international organization for intellectual property, discussed revisions to the Paris Convention on the Protection of Industrial Property that would substantially weaken patent rights globally.

In response, the United States in 1984 unilaterally protected American intellectual property rights against foreign violation in the Trade and Tariff Act of 1984. Section 301 permits unilateral economic retaliation for “unfair trading practices” of other countries, including the exportation of goods produced in violation of U.S. intellectual property rights. As a result, the United States initiated Section 301 investigations into property rights violations against South Korea and Brazil.

In September 1985 President Reagan, in a major speech, emphasized the importance of global intellectual property rights to the United States. By July 1986, in response to American pressure, the Ministerial Declaration of the Organization for Economic Cooperation and Development (OECD) and the Joint Communiqué of the Tokyo Economic Summit both included recommendations for inclusion of intellectual property rights protection in any new round of multilateral trade negotiations in the GATT.

For nearly ten years, the United States led efforts to institute global recognition, standards, and enforcement of intellectual property rights within the international trading system. It succeeded. Protection against the trade-distorting effects of intellectual property rights violations was included in the new WTO along with direct enforcement powers.

The arguments the United States used to prevail in the global community on intellectual property rights were fourfold:

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.

3.        Self-executing treaties legitimately may infringe upon state sovereignty in support of international rights and regimes.

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 United States, it may require the United States to pay awards to foreign nationals. Review by an international tribunal is superior to even Supreme Court review.28

The United States similarly is willing to challenge sovereignty in pursuit of religious rights violations and to use U.S. law to do so. The International Religious Freedom Act of 1998 created an Office for International Religious Freedom in the U.S. Department of State, headed by an Ambassador at Large for Religious Freedom. The act requires the active promotion of international religious freedoms by U.S. diplomatic personnel and mandates presidential action, including unilateral economic sanctions, against a country with egregious violations of religious freedom as defined by the United States.

In 2003, for example, the United States discontinued bilateral economic aid to Burma and suspended the Generalized System of Preferences (trade preferences) and financial services of the Export-Import Bank. The United States justifies unilateral actions because “[u]ltimately, each nation’s policies and practices regarding religious freedom must be measured against international norms.”29

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 U.S. property rights to Mexican landowners were forgotten as gold and land drew European-Americans westward. Chinese laborers recruited to build the transcontinental railroad also were denied citizenship and rights.

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 America. Therein lies the problem. Although the Constitution allows for the possibility of the rights of “we, the people” being greater than those enumerated, American culture in the twenty-first century does not. The “culture wars” waged by evangelicals are not wars against “culture.” They are wars against universal human rights, and especially human rights that challenge the American civic myth of exceptionalism as a Protestant—indeed, evangelical—nation.

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 America rests, in part, on the confusion of gender roles within the American family and American culture.37 Men are to head the family; women and children are to be obedient in all respects. Women are to be “mothers to the nation” with responsibility for rearing moral children. Women’s entry into the workplace undermines the moral and natural order. In addition, it emasculates men both in the home and in society. Evangelicals seek a return to biblical manhood, the warrior male who assumes responsibilities for his family, in the masculine image of Jesus Christ.38

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 America’s moral laxity and the perversion of gender and family have led to a profusion of evangelically based public interest organizations and media networks. All are dedicated to influencing public opinion and public policy to achieve evangelical goals. Public interest organizations include the Eagle Forum, the Concerned Women for America, the Independent Women’s Forum, and the Center for Military Readiness, all of which oppose equal rights for women. From opposition to the Equal Rights Amendment in the 1970s to opposition to women in combat and combat zones in the twenty-first century, evangelicals have influenced Republican Party agendas regarding women’s rights for nearly three decades.39 The Christian Coalition, Moral Majority, Family Research Council, and Liberty Counsel, among other organizations, promote the integrity of the traditional family and traditional marriage through legal action and policy lobbying. Policy goals include welfare programs that require federal funding of marriage initiatives, a constitutional amendment banning marriage between gays, and opposition to some birth control.

Evangelicals also believe in American exceptionalism as a covenant nation. In a 1957 editorial, United Evangelical Action magazine noted, “[Americans] look upon the USA as a Covenant nation. . . . As a Covenant nation we recognize the necessity of putting God and His purposes first and we believe that the highest role our nation can play is to reflect His righteous will in national and international policy.”40 Sectarianism, moral relativism, and secular humanism undermine America’s divine mission. “Evangelicals fought against . . . the notion that religious beliefs and morality were simply a matter of personal preference rather than a claim to objective truth, and that therefore all religions, moral systems, worldviews, and ideologies were equally ‘true’ and acceptable.”41

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, America inherently is threatened by the rise in power of a non-Christian nation. In such cases, war is justified, as are noncombatant deaths. Communism, for example, was a “demonic threat to Christianity.” “Fundamentalists believed the threat posed by communism justified a religious crusade, a holy war.”43 President Reagan, who claimed he was born again during the 1980 campaign, labeled communism the “evil empire.” Evangelical support for the Vietnam War, Reagan’s anti-Soviet policies, and the Gulf War never wavered. Theologically, most evangelicals consider war inevitable and believe that military force is a legitimate, scripturally justified right of a Christian nation against those who challenge its moral purpose.

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, America must be protected from the unbelievers and the wrong believers who threaten it morally, culturally, and politically. Such moral absolutism denies the legitimacy of differing religious or secular moral conceptions.

The United States entered the post–World War II era as the self-proclaimed global beacon of liberty and justice. Although America’s record of affording liberty to all equally at home was tarnished, its initial support for the United Nations and its Universal Declaration on Human Rights, coupled with tentative steps to dismantle Jim Crow and coverture at home, signaled the likelihood that America would remain that beacon for generations to come. But as the decades unfolded after World War II, other nations grew bolder. Liberty came to mean more than the negative liberties found in the American Constitution, expanding to include positive social and economic rights. Abhorrence of genocide transformed into intolerance for violence against people, including the death penalty. Increasingly, most forms of intolerance and discrimination became targeted as violations of rights. Human dignity and respect became the foundations of human rights.

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 United States willingly concedes sovereignty, even when rights (but not human rights) are at issue. Why, then, the hesitancy to expand individual rights available in and enforced by the United States?

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 America’s view of itself to state. As a people, we do not value human rights.

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 America and our concept of self?

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 the former Soviet Union to “evildoers” who engage in terrorism. This religious language of good versus evil creates a bifurcated worldview of a complicated, interconnected global environment in the post–cold war world. Yet, for other international interests, such as intellectual property rights or trade policy, there are no evil empires or evildoers, only nations to be held accountable by international bodies and standards. Human rights that merit American leadership today increasingly are limited to religious rights, including the right to evangelize in foreign nations.

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 America is no more justified than any other nation or people in using force offensively against others in pursuit of its own interests.

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 contemporary America’s view of itself? Are we therefore willing to sacrifice human rights to protect our “homeland”? The answers depend upon which America we want to be.

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.

In the America of exceptionalism, human dignity, rights, and liberties flow from the cultural imperatives and moral foundations of the homeland. The homeland defines which individuals, peoples, and nations are worthy of respect, dignity, and rights—and which are not. The America of exceptionalism would protect the homeland first and foremost, including, if necessary, compromising rights and liberties to do so.

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 See also European Convention for the Protection of Human Rights and Fundamental Freedoms (1953),; Charter on Fundamental Human Rights of the European Union (2003),; American Convention on Human Rights (1978),; and African Charter on Human Peoples’ Rights (1986),

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 March 23, 1976.

4. See, for example, Marcus Tullius Cicero et al., De re Publica (Cambridge: Cambridge University Press, 1995).

5. See, for example, St. Thomas Aquinas, Summa Theologica, I-II (Manchester, N.H.: Sophia Institute Press, 2001).

6. Hugo Grotius, The Rights of War and Peace (1625; Clark, N.J.: Lawbook Exchange, 2004 reprint).

7. Thomas Hobbes, Leviathan Parts I and II (New York: Bobbs-Merrill, 1958).

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 (New York: Longman, 2000).

10. See, for example, Dworkin, Law’s Empire.

11. John Rawls, “The Law of Peoples,” in The Law of Peoples, ed. John Rawls (Cambridge, Mass.: Harvard University Press, 1999), 68.

12. UN General Assembly, World Conference on Human Rights, “Report of the Regional Meeting for Asia of the World Conference on Human Rights,” prepared by L. M. Singhvi in pursuance of UN General Assembly Declaration of the Asian States at their Regional Preparatory Meeting for the 1993 UN World Conference on Human Rights, Vienna, Austria, United Nations, Doc. A/CONF. 157/PC/, quoted in Brown, Human Rights in World Politics, 38–39.

13. Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973).

14. Distinctions between negative and positive freedom and rights parallel those discussed in Isaiah Berlin’s Four Essays on Liberty (Oxford: Oxford University Press, 1969). Berlin characterizes negative freedom as the absence of restraints on actions imposed by others and positive freedom as the ability of man to be his own master, including being a rational being with a conception of self.

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 United States, South Africa and Brazil (Cambridge: Cambridge University Press, 1998).

17. Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage Books, 1993), 238–39.

18. Thomas Jefferson, “Letter to Thomas Law, Popular Forest, June 13, 1814.” The Jeffersonian Cyclopedia,

19. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, Conn.: Yale University Press, 1997), 33–34.

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, New York: Harper and Row, 1962); and Samuel P. Huntington, American Politics: The Promise of Disharmony (Cambridge, Mass.: Harvard University Press, 1981). Alternative views of American culture and values can be found in, among others, Wood, Radicalism; Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven, Conn.: Yale University Press, 1989); Linda J. Kerber, No Constitutional Rights to Be Ladies: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998); Marx, Making Race and Nation; and Smith, Civic Ideals.

21. Samuel P. Huntington, “The Hispanic Challenge,” Foreign Policy (March/April 2004): 31–32.

22. Brief for the United States as Respondent Supporting Petitioner in Sosa v. Alvarez-Machain (U.S. Supreme Court No. 03-339, 2004), 47, at

23. Ibid., 45.

24. Ibid., 43.

25. For a thorough discussion of Guantanamo Bay detainees, their cases, U.S. government positions, and relevant human rights treaties, see David Cole, Enemy Aliens (New York: Free Press, 2003).

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,

30. For a discussion of unilateral actions by the United States to foster religious freedoms abroad, see, for example, Leo P. Rifubbo, “Religion in the History of U.S. Foreign Policy,” in The Influence of Faith: Religious Groups and U.S. Foreign Policy, ed. Elliot Abrams, chap. 1 (Lanham, Md.: Rowman & Littlefield, 2001).

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,

32. For a discussion of the founding fathers’ views on equality and the natural aristocracy, see Wood, Radicalism of the American Revolution, 178–81.

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).

34. For a concise overview of American fundamentalism, see Margaret Lamberts Bendroth, Fundamentalism and Gender: 1875–Present (New Haven, Conn.: Yale University Press, 1993), 3–5.

35. For a discussion of American evangelicalism’s influence outside of the United States, see as an example, Brouwer et al., Exporting the American Gospel.

36. P. B. Fitzwater, Woman: Her Mission, Position, and Ministry, quoted in Bendroth, Fundamentalism and Gender, 111.

37. Kintz, Between Jesus and the Market, 17–54.

38. For a discussion of the “four pillars of manhood,” see Stu Weber, Tender Warrior: God’s Intention for a Man, quoted in Kintz, Between Jesus and the Market, 121–23.

39. See Melich, The Republican War against Women, especially chap. 18.

40. Kintz, Between Jesus and the Market, 37.

41. Ibid., 298, 303.

42. For detailed overviews of evangelical influences on American foreign policy and internationalism, see Abrams, Influence of Faith; and Brouwer et al., Exporting the American Gospel.

43. Loveland, American Evangelicals, 121.

44. Rawls, “The Law of Peoples,” 21.

45. Benjamin R. Barber, Jihad v. McWorld: How Globalism and Tribalism Are Reshaping the World (New York: Ballantine, 1995), 205–6.

46. Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (New York: Clarion, 1971), 225.