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Carlos BERNAL: The Magnificent Seven

On the Functions of ‘Unalienable Rights’ in American Constitutionalism


The concept of ‘unalienable rights’ became the subject of a new chapter of the “Human Rights Era” in American Constitutionalism when, in July 2019 Secretary of State Michael R. Pompeo announced the creation of a Commission on Unalienable Rights. The Commission was an independent and nonpartisan institution, empowered to provide the US State Department with advice on human rights grounded in the United States’ founding principles and the principles of the 1948 Universal Declaration of Human Rights. In 2020, that group of highly regarded intellectuals and legal scholars published the final report of the work of the Commission. The Report recasts the concept of unalienable rights through a historical and normative analysis of American constitutionalism and its relationship with the Universal Declaration of Human Rights. The Commission’s core goal was to explore the meaning, evolution, and relevance of the concept of unalienable rights. In addition, they aimed at explaining the relationship between unalienable rights and human rights. Interestingly, the Report included a renovated conception of unalienable rights. In this post, I would like to highlight seven functions that the concept of unalienable rights can play in American Constitutionalism. This post explains these “Magnificent Seven” functions in light of comparative constitutional law.


The seven functions are: Unalienable rights (i) position Human Dignity as the highest value of the American Polity; (ii) restate the protection of unalienable rights as the mission that drives the domestic and foreign action of authorities; (iii) open constitutional discourse to practical reason and moral deliberation; (iv) bridge the divide between positive and natural law; (v) open the legal and political system to international human rights law; (vi) open the afore-mentioned system to comparative constitutional law; and (vii) create an avenue for the transnational migration of American ideas on human rights.


Let us have a brief look at these seven fundamental features one-by-one.


First, the concept of ‘unalienable rights’ places human dignity as the highest value of the American polity. This centralized placement is a consequence of the necessary connection between unalienable rights and human dignity. The adequate protection of human dignity cannot be provided without adequate protection of unalienable rights. In this way, unalienable rights are necessary entitlements that a human being ought to enjoy for living a life with dignity.


This general setting connects the concept of unalienable rights to universality as a feature of human rights. As the Report states, unalienable rights are rights (i) inherent to and in all persons; rights that they hold because of their nature or essence – which does not change throughout time or space; and that (ii) are inseparable from our humanity. International or comparative texts, such as the Preamble of the Universal Declaration of Human Rights, Article 1 pf the European Union Charter of Fundamental Rights, the Preamble of the American Convention of Human Rights, Article 1 of the German Basic Law, and the Israeli Basic Law on Human Dignity and Liberty all entrench the very same feature. In this sense, the Report is dissonant with those international sources of law – including national constitutions - that define the essence of human rights.


Second, the Report restates the protection of unalienable rights as the mission that drives the domestic and foreign actions of political authorities. Political authorities always have a constitutional mission to accomplish. For instance, Karl E. Klare associated the mission of authorities under the 1996 South African Constitution with the transformation of the “political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. In an analogous manner, the mission of American constitutionalism is the protection of unalienable rights. As the Report posits: “the distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction, and the Constitution of the United States establishes political institutions to make it a reality”.

Third, the concept of unalienable rights opens constitutional discourse to practical reasoning and moral deliberation. This is a consequence of the indeterminacy of ‘unalienable rights’ concerning, at least, three core ontological questions: (i) What are those rights?; (ii) What is their scope and content?; and (iii) To what extent can political authorities limit them? No one can answer those questions and provide a justification without applying on of resorting to practical and moral arguments. Accordingly, the concept of unalienable rights layers a ground for the deliberation of different political and moral views in a democratic and pluralistic society.


Fourth, the concept of unalienable rights bridges the divide between positive and natural law. The entrenchment of these rights in the amendments to the U.S. Constitution and relevant constitutional jurisprudence implies acknowledging that the positivity of rights (by means of text and precedent) matters. Nevertheless, it also implies opening the possibility of normative critique of political and judicial decisions by using the natural-law theories regarding the origins of these rights. Hence, citizens, organizations of the civil society, and authorities can employ all kinds of natural-rights and critical-rights theories to ground or challenge currently valid and enforceable positive rights. The strength of those critiques depends on the soundness of their justifications within the framework of the different theories of human rights, be it substantive – such as traditional Judeo-Christian theories, libertarian, democratic or welfare theories –, or procedural. Substantively speaking, Bible-based theories usually have a strong power of justification (liberty, Deuteronomy, equality, Colossians, Due Process, the destruction of Sodom and Gomorrah). Similarly, liberty- (Locke, Rawls), democracy- (Jürgen Habermas, Nino) and the social state (Sen, Herman Heller) theories are also influential. Procedurally speaking, the decision should be made about who (i.e. the people of the USA, Congress as the legislature, the Judiciary, certain majorities or minorities) shall resolve the ontological question of what procedural fairness means (to them). Besides the decision about ‘who’, the ‘how’ is also significant. This simultaneously gives rise to a possibility and a peril: overcoming some problems of ‘US exceptionalism’ vs. the possibility of an ‘abusive constitutional review’.


Fifth, the concept of unalienable rights opens the legal and political systems to international human rights law. Answering the three core ontological questions concerning unalienable rights – mentioned above – presuppose answering the epistemic question on how to access to the necessary knowledge for providing a sound response to them. Interlocutors of political and legal deliberation can use international human rights law as evidence for responding to this epistemological challenge. In this sense, the entrenchment of a right in international human rights law is an evidence of the validity of that right as an unalienable right.


Sixth, the concept of unalienable rights opens the legal and political system to comparative constitutional law. Answering those core ontological questions allows for an engagement with foreign practices concerning the recognition and adjudication of constitutional rights through the eyes of comparative constitutional law. The purpose of that engagement, which has historically elicited interesting debates, is developing a reflection on what are the “normatively preferable best practices” concerning rights in a constitutional democracy and where are the limits of legal importing, constitutional borrowing.


Finally, as for the seventh feature, the counterpart of engagement with comparative constitutional law is that the concept of unalienable rights opens an avenue for the transnational migration of American ideas on human rights. In this way, American doctrines and rules concerning the entrenchment, adjudication and protection of unalienable rights can illuminate other jurisdictions that face those never-ending challenges.


There are, however, some caveats to consider and address that might lie ahead in this sense, when ideas and doctrines travel across jurisdictions in an era of constitutional convergence. Authorities can use migrating ideas or doctrines in problem-solving, “supplying data and policy options for confronting common problems”. However, an abuse of migration can lead to “external imposition” of doctrines and values (by foreign countries, promoting change through incentives and threats), and inappropriate “emulation” (copying practices or solutions of “admired” legal systems). In any case, dialogue concerning comparative practices is quintessential to institutional improvements. The concept of unalienable rights, in the way the Commission recast it, is a key to unlock deliberation on the improvement of human rights compliance in American Constitutionalism.

 

Prof. Carlos Bernal specializes on the interpretation of constitutional rights and comparative constitutional change. After service as a justice of the Colombian Constitutional Court, he became a professor of law at the University of Dayton School of Law in August 2020. In 2021 he was elected as an Inter-American Human Rights Commissioner for the term 2022-2026. He has previously held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), the University of Copenhagen, the Hebrew University of Jerusalem, and the University of Leon (Spain). He has also held Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).


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