The World

What’s Wrong With Unalienable Rights?

The State Department’s new commission represents a right-wing attack on America’s human rights traditions.

U.S. Secretary of State Mike Pompeo announces the formation of a commission to redefine human rights, on Monday in Washington.
U.S. Secretary of State Mike Pompeo on Monday in Washington.
Mark Wilson/Getty Images

Secretary of State Michael Pompeo formally launched the Trump administration’s new “Commission on Unalienable Rights” on Monday and announced its chair and members. The commission has been created, Pompeo said, to provide him “with advice on human rights” and to carry out “one of the most profound reexaminations of the unalienable rights in the world since the 1948 Universal Declaration.”

But what is the commission likely to advise Pompeo? Given Pompeo’s statements on the setting up of the commission, the Trump administration’s stance on human rights, and the track records of the commission’s new chair and a number of its other members (not to mention Pompeo himself), the risk is high that it will advance a specific brand of conservative arguments aimed at: (a) dialing back gains on LGBTQ rights and women’s rights, including particularly the right to choose and the right to marriage equality; (b) de-prioritizing fundamental economic, social and cultural rights; and (c) supporting long-standing U.S. hypocrisy on human rights, namely, using rights to attack opponents while (re)interpreting rights to avoid criticism of the U.S. record at home and abroad.

Civil and human rights advocates raised immediate alarm when news of the commission was first reported, fearing that its focus on “natural law” was code for anti-LGBTQ, anti-choice, and anti-women’s rights agenda(s). Indeed, past statements by the commission’s chair—Harvard law professor Mary Ann Glendon—and a number of its members confirm these concerns, while adding even more.

For starters, Glendon has long opposed abortion and marriage equality. In 2018, she was awarded a “prestigious pro-life prize” for her decades of work advocating against the right to choose both in the United States and internationally. In 2012, Glendon appeared in a video defending Mitt Romney’s pro-life record. In 2011, she co-authored a letter to the New York Legislature against marriage equality. In 2004, she wrote in the Wall Street Journal against marriage equality, arguing that same-sex marriage was a “social experiment” and that if it happened, “the rights of children will be impaired.”

And what of the other commission members on these issues? Commission member Christopher Tollefsen has argued that “contraception is morally impermissible” (see also here) and that abortion is “the unjust and intentional taking of innocent human life.” Another member, Jacqueline Rivers, a lecturer at Harvard and executive director of the Seymour Institute on Black Church and Policy Studies, shares Glendon’s record of anti-choice advocacy and has decried the dangers of marriage equality. In 2014, she wrote that “Today, marriage faces new threats as the divinely established order of marriage between one man and one woman is challenged.” She also signed onto First Things’ anti–same-sex marriage creed that declares same-sex marriage to be a “parody” and a “fiction.”

Alongside statements on specific issues, the lenses through which commission members might see the foundations of human rights bear scrutiny. For example, for commission member Peter Berkowitz, a Hoover Institute Fellow and self-proclaimed conservative, the basis lies in Christianity. In his recently penned “Recovering the Christian Foundations of Human Rights,” Berkowitz argues:

“Grasping the old — and enduring — connection between human rights and Christianity could help curb excesses that these days damage both progressivism and conservatism.”

Some of the members have also been part of efforts to interpret “religious freedom” to justify undermining other rights. In 2012, commission member Rabbi Meir Soloveichik (who stood onstage with President Donald Trump at a White House Hanukkah reception) co-authored an opinion piece in the Wall Street Journal against insurance coverage for contraception under the Affordable Care Act, on the basis that it contravened religious liberties. Commission member Paolo Carozza has argued that religious freedom is “key to the coherence and viability of the entire human rights project”—a freedom he has interpreted to include the right of family businesses to exclude from health care coverage “drugs that can end human life in the womb.”

These kinds of arguments are often part of the playbook to undermine reproductive rights, as well as the rights of those experiencing violence and discrimination because of their gender, sexual orientation, or gender identity. Indeed, anti-choice and heteronormative positions are among the more obvious places for retrenchment by a Trump administration–created commission, particularly given that this administration has, for example, reinstated the “global gag” rule and actively sought to remove the word “gender” from U.N. human rights documents, including as part of its anti-transgender campaign.

The membership of the “Rights” commission is not exactly a list of prominent human rights advocates. As Sam Moyn noted, a number have written for the conservative religious journal First Things or signed on to its manifestosTwo are Hoover Institution fellows, and two are also associated with the journal Telos.

As well as potential rollbacks in specific areas, such as women’s and LGBTQ rights, there is an additional risk that the commission may advise Pompeo to effectively downplay or sideline a large swathe of accepted rights.

To this end, in an editorial in the Wall Street Journal over the weekend, Pompeo expressed his concern that after the end of the Cold War, “many human rights-advocates turned their energy to new categories of rights” and that “when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights.” A February 2019 article co-authored by Glendon and Seth Kaplan, “Renewing Human Rights,” echoes similar concerns. They argue that human rights have been “over-extended” and advocate for a “modest understanding” of rights. The article provides a road map to Glendon’s views on the questions Pompeo said the commission should answer, including: “What does it mean to say or claim that something is, in fact, a human right?” Glendon and Kaplan argue not for the equal promotion of all rights, but for a paring back to prioritize what they see as “basic” rights:

protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.

Notably, the list leaves out the fundamental economic, social, and cultural rights enshrined in the 1948 Universal Declaration of Human Rights and set out in the core human rights treaties. De-prioritizing half of the established human rights corpus sets back essential international law protections for health, work, and education by decades. It is also deeply out of step with those U.S. grass-roots approaches that embrace economic justice concerns, particularly to address racial inequality. And it recalls the State Department’s problematic history of top-down efforts to stifle domestic advocacy on economic, social, and cultural rights, particularly in marginalized communities.

Launching the commission on Monday, Pompeo said that it would undertake “a review of the role of human rights in American foreign policy.” This is overdue. The traditional U.S. approach has often been marked by hypocrisy. It has regularly sought to (re)interpret certain rights as relevant to the abuses of traditional U.S. opponents but not to U.S. actions at home or abroad. For example, the George W. Bush administration denouncing torture in North Korea, Iran, and Cuba—while accepting legal advice making the U.N. Convention Against Torture irrelevant to waterboarding in CIA black sites—is a case in point. Describing a 2018 U.N. report on poverty in the United States as “patently ridiculous,” as part of an unprecedented decision to withdraw from the top U.N. human rights body, is another.

But there is every reason to doubt that this hypocrisy will change under Pompeo. At the commission launch, Glendon’s praise for Pompeo’s “priority to human rights at this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators”—even as the United States keeps migrant children in cages at the border, is illustrative. Another commission member, Hamza Yusuf, has praised Turkish President Recep Erdoğan despite his well-established human rights abuses. Pompeo himself has acknowledged that the U.S. will downplay human rights violations by allies, including when it comes to Saudi Arabia, which has been credibly accused of serious human rights violations against its own people as well as war crimes in Yemen.

We hope our concerns are disproven. Perhaps some members of the commission will work to advance rights-protecting understandings. Yet still, as he launched the commission, Pompeo said that we must be “vigilant that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.” He warned that “words like ‘rights’ can be used for good or evil.” We agree.