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A Prospective View of the Bill of Rights: Toward a New Constitutionalism†

Published online by Cambridge University Press:  24 April 2015

Douglas Sturm
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Extract

“We have it in our power to begin the world over again.” Thomas Paine, pamphleteer of the American Revolution and defender of the French Revolution, captures in this phrase a central insight conveyed in the idea of human rights: we have it in our power to begin the world again. The sentiment is cast in simple declarative form. As such it may seem naive. We are, after all, constrained—are we not—by the inheritance of a world already accomplished, a world whose structures bind us in untold ways? But the intention of Paine's statement is more than aspirational. It affirms a vision of what is possible—and what is desirable—given the deepest character of who we are and what we might become. If we comprehend the full dialectic between self and world, then we have it in our power to begin the world again even as the world is the matrix—the source and the condition—of our power. That's a central insight conveyed in the idea of human rights which has stirred up such controversy, philosophical and political, since it emerged at the beginnings of the modern era.

Type
Articles
Information
Journal of Law and Religion , Volume 13 , Issue 1 , 1996 , pp. 27 - 41
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1987

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Footnotes

†

Reprinted with permission from 5-1 The Journal for Peace and Justice Studies, 1993.

References

1. Paine, Thomas, Common Sense in Foner, Philip S., ed, 1 The Complete Writings of Thomas Paine 45 (Citadel, 1945)Google Scholar.

2. Winston, Morton E., Introduction: Understanding Human Rights in Winston, Morton E., ed, The Philosophy of Human Rights 1–41 (Wadsworth, 1989)Google Scholar.

3. Rutland, Robert Allen, The Birth of the Bill of Rights 1776-1791 (U of North Carolina Press, 1955)Google Scholar; Schwartz, Bernard, The Bill of Rights: A Documentary History (Chelsea, 1971)Google Scholar.

4. Sec the distinction between established liberalism and reformed liberalism developed by Gamwell, Franklin I. in Beyond Preference: Liberal Theories of Independent Associations (U of Chicago Press, 1984)Google Scholar; Gamwell, Franklin I., The Common Good: Modern Moral Theory and the Necessity of God (Harper, 1990)Google Scholar.

5. Rutland, Birth of the Bill of Rights (cited in note 3). For a recent affirmation of this perspective, relying on the character of the Ninth and Tenth Amendments as evidence, see Pilon, Roger, The Forgotten Ninth and Tenth Amendments, 13 Cato Policy Report 1, 10–13 (09-Oct 1991)Google Scholar.

6. The motto for the Democratic Review, quoted by Henry David Thoreau at the beginning of his essay on civil disobedience. See American Heritage Dictionary of American Quotations at 216 (Penguin, 1997)Google Scholar.

7. This phrase is a composite of terms drawn from the French Declaration of the Rights of Man and the Citizen (1789). See VanKley, Dale, ed, The French Idea of Freedom at 1–3 (Stanford U, 1994)Google Scholar.

8. Honig, B., Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic, 85 Am Pol Sci Rev 97 (1991)CrossRefGoogle Scholar. See LeFort's essay on Human Rights and the Welfare State, especially his construal of Hannah Arendt's notion of the “right to have rights” as fundamental in the undertaking represented by the American and French declarations. LeFort, Gaude, Democracy and Political Theory at 33–34 (U of Minnesota Press, Macey, David trans, 1988)Google Scholar.

9. I have taken the language of separating and uniting rights from Minogue. However, I should note, Minogue's basic orientation and mine diverge radically. Minogue, K.R., Natural Rights, Ideology and the Game of Life in Kamenka, Eugene and Tay, Alice Ehr-Soon, eds, Human Rights at 13–35 (St. Martin's, 1978)Google Scholar.

10. Among the many works detailing the exclusionary, even genocidai policies and practices of the American nation, see, as an exemplary study, Drinnon, Richard, Facing West: The Metaphysics of Indian-Hating and Empire-Building (U of Minnesota Press, 1980)Google Scholar. I would stress (1)that many of those who were ostensibly supportive of the idea of human rights simply refused to consider some classes of people as human but (2) that their refusal cannot be excused on grounds that everyone at the time shared the same understanding. That, simply, is not true. The refusal was a matter of either deliberate decision or ideological self-deception. In either case, it was, even at the time, morally inexcusable.

11. King, Martin Luther Jr., Where Do We Go From Here? From Chaos to Community at 67–101 (Harper, 1967)Google Scholar.

12. Paine, Thomas, Agarian Justice in Foner, , Complete Writings at 617Google Scholar (cited in note 1).

13. Whitbeck, Caroline, A Different Reality: Feminist Ontology in Gould, Carol C., ed, Beyond Dominion: New Perspectives on Women and Philosophy at 64–88 (Rowman, 1983)Google Scholar. Yet compare Young, Iris Marion, Justice and the Politics of Difference ch 4 (Princeton U Press, 1990)Google Scholar.

14. Alan Gewirth, in his meticulously argued text, Reason and Morality, and elsewhere, has presented a strong case for grounding human rights in agency (action). Gcwirth, Alan, Reason and Morality (U of Chicago, 1978)Google Scholar. However, I find Franklin I. Gamwell's critique of Gewirth persuasive and would associate my suggestion that human rights are grounded in a specific quality of interaction with his concept of the “maximal public ideal.” Gamwell, Franklin I., Beyond Preference: Liberal Theories of Independent Associations (U of Chicago Press, 1984)Google Scholar.

15. On issues pertaining to the meaning, status, and effectiveness of diverse international instruments on human rights, see Starke, J.G., Human Rights and International Law in Kamenka, and Tay, , eds, Human Rights at 113–31Google Scholar (cited in note 8); Henkin, Louis, International Human Rights as “Rights” in Pennock, J. Roland and Chapman, John W., eds, Human Rights at 257–90 (NYU Press, 1981)Google Scholar.

16. Obviously, to declare that the idea of human rights is (a) an invention or (b) a discovery is in need of explanation. But some account must be taken of the emergence of the idea in the modern era in the West and its (relative) absence during earlier periods of history. Alasdair MacIntyre takes the absence of the idea in earlier times and other places as evidence that “there are no such rights, and belief in them is one with belief in witches and unicorns.” MacIntyre, Alasdair, After Virtue: A Study in Moral Theory at 69 (U of Notre Dame Press, 1984)Google Scholar. Yet surely, as there may be advances in other areas of knowledge, there may be advances in moral understanding over the course of history. The emergence of a moral insight at a particular time and in a particular place should not detract from its potentially universal validity. See, for example, Winston on the concept of “accumulated historical wisdom.” Winston, , Introduction in Winston, , ed, Philosophy of Human Rights at 37–39Google Scholar (cited in note 2).

17. Regan, Tom, All That Dwell Therein: Animal Rights and Environmental Ethics (U of California Press, 1982)Google Scholar. Michael W. Fox argues for a basic, intrinsic right of any life form “to develop (and actualize) its natural potentials in the environment for which it is best suited or pre-adapted.” Fox, Michael W., Philosophy, Ecology, Animal Welfare, and the “Rights” Question in Miller, Harlan B. and Williams, William H., eds, Ethics and Animals at 307, 313 (Humana, 1983)Google Scholar.

18. Cranson, Maurice, What are Human Rights? (Humana, 1983)Google Scholar.

19. Campbell, Tom, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights (Routledge, 1983)Google Scholar.

20. Okin, Susan Moller, Liberty and Welfare: Some Issues in Human Rights Theory in Pennock, and Chapman, , eds, Human Rights at 230–56Google Scholar (cited in note 14).

21. Editor's Note: The two primary covenants of rights include:1)the International Covenant on Economic, Social, and Cultural Rights, G.A. res. 2200A (XXI), 21 UN GAOR Supp. (No.16) at 49, UN Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976 (133 states parties, not including U.S.A. but signed by U.S.A.); and 2) the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 UN GAOR Supp. (No.16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, for the U.S. September 8,1992 (132 states parties including U.S.A.) (5 reservations, 5 understanding, 4 declarations, 1 proviso).

22. I have relied heavily on Shue's carefully and closely argued position in this paragraph, although the encompassing framework of my interpretation is substantially different. Shue, Henry, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton U Press, 1980)Google Scholar.

23. Revolutions, I hasten to assert, need not be violent. In my judgment, the questions of the right to revolution and the justifiability of violence are separate and distinct issues.

24. Dworkin, Ronald, Taking Rights Seriously (Harvard U, 1977)Google Scholar.

25. The ideas of absolute rights and inalienable rights are not, we should note, synonymous. Meyers presents a compelling case for the inalienability of some rights without arguing that such rights are absolute or unqualifiable. Meyers, Diane, Inalienable Rights: A Defense (Columbia U Press, 1985)Google Scholar.

26. See Fox, , Philosophy, Ecology, Animal Welfare in Miller, and Williams, , eds, Ethics and Animals at 313Google Scholar (cited in note 16).

27. For an instructive analysis of variant forms of domination (or oppression), see Young, Justice at ch 2 (cited in note 12).

28. Küng, Hans, Toward a World Ethic of World Religions in Küng, Hans and Moltmann, Jürgen, eds, The Ethics of the World Religions and Human Rights at 102 (SCM, 1990)Google Scholar.