An address to the first Plenary Session of Annual Leadership Conference of the Center for Civic Education
Marina del Rey, California
June 21, 1991

INTRODUCTION
Later this morning we are going to have the opportunity to hear from four of our European colleagues - experienced and distinguished educators who will provide us with insights into rights in their respective countries and their perspectives on human rights issues in Europe generally. But before we hear from them, I have been asked to set the stage by considering what is a major - if not THE major issue - in the world today - the rights of human beings. That is, of course, a wide-ranging, multifaceted topic. In a very limited time one can do no more than draw a few essential elements to our attention. Accordingly, I would like to focus on three aspects of the rights question.

First let's look at the conception of rights on which the U.S. Constitution is based and at how and why that conception has been exported to, accepted and modified by many nations throughout the world.

Secondly, let's consider rights as they are conceived in the constitutions of the Communist world.

Finally, we'll focus briefly on American attitudes toward the Universal Declaration of Human Rights which attempts to combine the competing conceptions.

Considering rights in a broader context - an international context- is especially important for us Americans. We are inclined to focus on our uniqueness and to heap both paeans of praise and scathing criticism on our own institutions. We also are inclined to be less concerned than we should about the rest of the world, and we are disinclined to make the effort it takes to understand how and why other peoples conceive of us and the world as they do. In short we often manifest ourselves as a parochial people. And we encourage that tendency in our schools by giving short shrift to teaching the history and languages of other peoples and about their political, economic and social systems. If we are to understand others' yearning for liberty and justice and if we are to promote respect for the rights of every human being, it is incumbent upon us - especially on those of us who are American educators - to redress the current state of affairs.

THE AMERICAN CONCEPTION OF RIGHTS
At the outset of this discussion we need to address briefly the concept of rights. It is a concept which does not admit of easy definition. Even the best of scholars approach the task of defining rights warily--and in multisyllabic words and multitudinous paragraphs, I might add. Suffice it to accept for our purposes this morning the explanation offered in the DICTIONARY OF POLITICAL THOUGHT (pp. 410) that "the language of rights has the function in moral and legal discourse of laying limits to what can be done."

Americans have always taken a very pragmatic approach to rights. The Federalists used rights rhetoric, but their concern was with effective government which they believed secured rights by laying limits and facilitating the rule of law. The approach to rights taken by most Americans today is not dissimilar. Norman Dorsen, a Professor of Law at New York University and a former President of the American Civil Liberties Union, recently insisted that: "Rights are not theoretical. They are practical, usable, and enforceable. They are meant to protect and fulfill people."

At the same time, Americans sense that rights have a deeper meaning and far-reaching significance in their own lives. They appreciate, even if they cannot articulate, that the core of the concept of rights is that each person possesses a kind of sovereignty over his/her own life and that such sovereignty means that there is a zone of protected activity within which he or she is to be free from encroachment by others - and most especially from encroachment by government. It was to underscore that personal sovereignty and to insure freedom from encroachment by government that the Bill of Rights was added to the Constitution and made part of the supreme and fundamental law. True, there were those who doubted the need for a Bill of Rights. Alexander Hamilton argued in Federalist #84, "The Constitution is itself, in every rational sense, and to every useful purpose a Bill of Rights." Noah Webster - and others - warned that "Liberty is never secured by (such) paper declarations, nor lost for want of them... " Government, he said, "takes its form and structure from the genius and habits of the people... " He pointed to the experience of the Netherlands where the people had lost their liberties to a "rich aristocracy" almost as soon as they had won them. "There was no compulsion--no external force...; but the form of government which had been established on paper and solemnly ratified, was not suited to the genius of the subjects." The Dutch burghers had a right to elect their rulers, but they voluntarily neglected it. Americans, Webster contended, would be well-advised not to become enamored of "artificial devices" such as written Constitutions and bills of rights... They were "a useless form of words" a "feeble barrier" unless they were in congruence with the "temper of the people."

Noah Webster, John Adams, James Madison and others - may have been right when they cautioned Americans not to put their trust in "feeble words" or "parchment barriers"; nonetheless we in the United States tend to see our rights as rooted in the Constitution and respected because they are there - part of positive law, the supreme law of the land. That view is incomplete, however. Our individual rights also are the stuff of common law, statutes, and what has been called "a luxuriant jurisprudence." Our rights, however, derive from a source which antedates the Constitution. That source identified clearly in the Declaration of Independence which opens with these well-known words:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted of men, deriving their just powers from the consent of the governed."

In that famous passage, as Louis Henkin observes, "Jefferson played variations on a theme by John Locke. Jefferson took 'natural rights' and made them secular, rational, universal, individualistic, democratic, and radical."

Americans have taken the reasoning embodied in the Declaration and confirmed it by their constitutional compact to mean that each of them has rights which accrue to them simply because they are human beings. Those rights are individual...natural... inherent. They cannot be taken away or even suspended. Those rights are not a gift. They are not concessions wrung from a king or a parliament. Rather they are fundamental freedoms which supersede and are superior to governments. They do not derive from any constitution they antecede all constitutions. In fin, this conception means that every individual has an inalienable "right to rights".

To understand how that conception has been translated into a usable form, let's look at the language of the first and fourth amendments: "Congress shall make no law... Abridging 'the freedom' of speech,or the press; or 'the right of people to peaceably assemble and to petition..." and again, "The right of the people to be secure in their persons, houses, papers and effects..."

Understanding the reasoning underlying those words is critical. "The freedom" and "The right" refer to and incorporate pre-existing, inalienable entitlements. The Bill of Rights, therefore, does not confer rights; it merely recognizes and guarantees some of them. The framers of the Constitution and the Bill of Rights elected to mention only the rights they were most concerned to protect in light of their recent history. They made no effort to identify every right which the individual has; as a matter of fact, they held that it would be counterproductive to do so. But they did see fit to declare in the ninth amendment, whose importance and utility we only now are coming to appreciate, that there were many other rights retained by the people: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The ninth amendment was not an afterthought. It was not a residual clause emanating from an abundance of caution. It was included in the Bill of Rights because it embodies and articulates a basic principle in which Americans have long believed: that every individual has rights before and regardless of the Constitution.

The rights which Americans enjoy today are many and complex. They are far in excess of those denominated in the Bill of Rights. But, it is interesting to note, that the original bill of rights (and the 14th amendment which incorporates them) has never been amended. And yet those amendments have been used to protect new rights and old rights newly conceived.

The Founders not only took very seriously their belief in inalienable rights, they began exporting their beliefs even before they gained their independence. Consider, for example, the "Address to the people of Quebec" formulated for the Continental Congress by a special committee of Richard Henry Lee, John Dickinson and Thomas Cushing. It was approved on October 26, 1774, ordered translated, printed and "dispersed". Here, in part, is the "lesson" about rights which the Continental Congress tried to teach the Canadians.

"Little did we imagine that (the British) would so audaciously and cruelly abuse the royal authority as to withhold from you the fruition of the irrevocable rights to which you were... justly entitled... And as you... have artfully been kept from discovering them... we esteem it our duty... to explain to you some of its most important branches.

The first grand right is that of the people having a share in their own government by representatives chosen by themselves.

The next great right is that of trial by jury.

Another right relates to the liberty of the person. If a subject is seized... and imprisoned... he may by virtue of this right immediately obtain a writ termed a Habeas Corpus...

The last right we shall mention regards the freedom of the press.

...These are the rights without which a people cannot be free and happy. These are the rights you are entitled to and ought at this moment in perfection to exercise.

We are too well acquainted with the liberality of sentiment distinguishing your nation to imagine that difference of religion will prejudice you against a hearty amity with us... We only invite you to unite with us in one social compact formed on the generous principles of equal liberty... In order to complete this highly desirable union, we submit it to your consideration, whether it be not be expedient for you to... choose Delegates to represent your province in the Continental Congress to be held at Philadelphia on the 10th day of May, 1775."

(Reprinted in Zechariah Chafee ed. Documents on Fundamental Human Rights Vol. I New York, New York: Antheneum, 1963.)

Although Quebec did not see fit to accept the invitation, Americans' enthusiasm for the form of government they invented and for their conception of rights has never waned. In an article for the most recent edition of THE ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, Albert Blaustein tell us:

"It can easily be argued that America's most important export has been the Constitution of the United States. It was the first single document constitution. It is the longest-lived and in only two centuries, virtually every nation has come to accept the inevitability and value of having a constitution. This fact transcends differences of culture, history and legal heritage. The U.S. Constitution is perceived as the fundamental point of reference, even by regimes whose philosophical outlook is antidemocratic. Furthermore, nearly every nation has accepted "the Philadelphia Formula"--either internally or universally--as the means by which an effective constitution can best be produced."

On the occasion of the bicentennial of the U.S. Constitution, Chancellor Helmut Kohl, reflecting on the importance of the American Constitution to other nations, confirmed that observation. Kohl said:

"The ideals underlying the American Constitution changed the face of Europe and, via Europe, the face of the world. The 200 year old American Constitution and the comparatively young Basic Law of the Federal Republic of Germany are imbued with the same political spirit... We pay tribute to the American Constitution as a symbol of freedom."

The American Constitution has been more than just a symbol of freedom to the Germans and others. It has proved to be a road map, a guide to the development of their own constitutions and their own formulations of rights.

One frequently copied feature is an American invention, the federal structure. It provided for the first time in history a means by which local and central power could be reconciled. Australia, Canada, Germany, Switzerland, Yugoslavia and, most recently, Nigeria, have adopted and adapted the United States federal structure. So, too, have Mexico, Argentina, Brazil and Venezuela.

The United States was the first nation to have an elected head of state called a president. Today more than half of the world's nations have presidents as chief executives.

Another export deserving special mention is THE FEDERALIST. Almost immediately THE FEDERALIST was translated into French, German and Spanish to provide constitutional outlines for a dozen or more nations in Europe and Latin America. Subsequently, THE FEDERALIST has been translated into more than 20 languages. That collection of essays continues to be a staple in many constitutional law classes abroad.

But the most popular and perhaps the most consequential export has been our Bill of Rights. With the adoption of the Canadian Charter of Rights and Freedoms in 1982, the United Kingdom is now the only major nation without a constitutional Bill of Rights. There is, as you know, growing demand in Britain for one. Some are opposed to the idea. They say a constitutional bill of rights is not needed, because rights in Britain are protected by ages old traditions and procedures. But proponents of a Bill of Rights are waging a vigorous campaign. They want the UK to enact a fundamental guarantee of human rights into law, possibly by incorporating the European Convention on Human rights. A Bill of Rights is needed, say its proponents, because of numerous infringements and increasing threats to liberty. They lament the inability of British courts, limited as they are by the doctrine of the Sovereignty of Parliament, to protect the individual from the excesses of the modern state. Finally, proponents of a Bill of Rights charge that their opponents show no signs of having learned very much from the experience of other jurisdictions, particularly the United States.

American constitutional influence perhaps is no more pervasive than in the case of Japan. An extensive and illuminating study of the importance of the American model for Japan by Yasuhiro Okudaira, professor of law at the University of Tokyo,appeared in the 1990 spring edition of LAW AND CONTEMPORARY PROBLEMS. Rights are Professor Okudaira's particular interest. Writing about them, he notes,

"The influence of the U.S. Constitution has been decisive in the field of protecting individual rights. The constitution of Japan has adopted various legal concepts based on the unique American concept of individualism, including the notions of freedom and equity. It provides a comparatively detailed list of 'fundamental human rights'. The very term 'human rights' calls to mind the American idea of civil liberties with a natural law flow. The prewar Constitution was based on the idea of legal positivism (law set by political superiors to political inferiors) originating from the late 19th century German doctrine of state law and therefore gave no room for any concept deriving from the idea of natural law or higher law. Thus, the respect for individual rights contained in the postwar constitution, along with the expansion of individualism in social and political development are the most important features differentiating postwar and present Japanese society..."

What is even more significant in Professor Okudaira's opinion, is that "with the present Constitution, Japan adopted for the first time in her history a Constitution of judicial enforceability.... The new experience in this respect is especially important in safeguarding the bill of rights. The idea of legally protected fundamental human rights has greatly affected the Japanese way of thinking."

The process of democratization in Japan is still going on, of course. The Japanese themselves acknowledge that "there remains a lot of unfinished business"--as there is, indeed, in every nation, including this one. Nonetheless, most Japanese are optimistic rather than pessimistic about the healthy development of modern constitutionalism in Japan.

II. RIGHTS AS CONCEIVED IN THE CONSTITUTIONS OF THE COMMUNIST WORLD

Turning from the American conception of rights to that of the communist world, we need to point out that the legal definition of a constitution is basically the same in both socialist and non-socialist states. A constitution is "fundamental or organic law that establishes the framework of government of a state, assigns the power and duties of governmental agencies and establishes the relationship between the people and their government." But here agreement would end, for the nature of a constitution and its role, function, enactment, amendment and application are viewed differently. So, too, are conceptions of rights.

It is true, of course, that communist constitutional theory has come a great distance since Marx and Engels first put their thoughts on paper in the last century. It is also true that communist theory is in a state of flux today. But for Marx and Engels the most important concept was revolution rather than constitution. They believed that if the proletariat followed only the rules of the 'constitutional game', they would never be able to free themselves from their chains of oppression. Accordingly, communist constitutional theory refused to acknowledge the importance of either the separation of powers or the system of checks and balances. Constitutions of socialist states, however, do provide for legislative, executive and judicial branches.

To allege that Marx and his followers were indifferent to rights is, in the view of many noncommunist scholars, incorrect. Marx himself thought of membership in the human community not in terms of formal rights, but in terms of what was actually enjoyed by citizens. He thought for example, that the right to work meant something more than that no one should be barred because of race or gender or that the holder of such a right could change jobs at will. The right to employment meant that a job should actually be available. A right conceived in such terms becomes a straightforward demand. Marx also rejected the doctrine of natural rights on a variety of grounds. Like Edmund Burke, Marx believed natural rights were abstract and unhistorical. Like many other writers, Marx identified individualism with egoism; the tendency to think in communal or collectivist terms he equated with altruism. Socialist society, therefore, should be altruistic, based on a philosophy of fulfilling human needs. Political and civil rights, seen as cornerstones in non-socialist states, were to be subordinated to social and economic needs and to ideological considerations.

To summarize briefly the more important distinctions between individualistic and collectivist conceptions of rights, one could say:

In the doctrine of the inherent, natural rights of individuals, rights are: