On March 1 the Supreme Court ruled 5 to 4 that the Constitution forbids executing juvenile offenders. In putting to death people who were minors when they committed their crime, the majority noted, “The United States now stands alone in a world that has turned its face against the juvenile death penalty.” In a strongly worded dissent, Justice Antonin Scalia attacked the majority’s consideration of laws and practices outside the United States, saying that the consensus of “like-minded foreigners” had no bearing in understanding our own Constitution. One month later, in a speech to the American Society of International Law, Justice Ruth Bader Ginsburg responded that US courts should pay more attention, not less, to international norms. She added that “the notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the US Constitution is a document essentially frozen in time as of the date of its ratification.”
The increasingly noisy debate on the High Court over the proper role of international standards of justice in our domestic law and policy reflects a broader development that is gaining momentum around the country: Human rights are coming home. Advocates are discovering how the fight for justice and freedom here can be waged through human rights, the international ethical and legal standards that the United States helped to create more than fifty-five years ago and that it is officially committed to respect and uphold. In so doing, this emerging human rights movement is forced to confront deliberate, longstanding and nonpartisan policies aimed at insuring that human rights are reserved for external use only.
Unlike many governments, the United States never underestimated the power of human rights. Led by Eleanor Roosevelt, this country played a critical role in the adoption, on December 10, 1948, of the Universal Declaration of Human Rights (UDHR), which for the first time bound all governments to a common standard of conduct. Ever since then the United States has invoked human rights standards, often aggressively if highly selectively, to criticize other governments.
Yet from the very beginning, leaders from both political parties sought to insure that the human rights the United States championed abroad could never be employed as instruments of change at home. One concern was the possibility that the Declaration’s recognition of economic and social rights–the right to a job, education, adequate food, shelter and healthcare–could be used to expose the large holes in the US social safety net. The driving fear, however, was the threat that human rights standards posed to the system of US racial apartheid. Even the treaty against genocide, adopted at about the same time as the Declaration, was blocked successfully by Southern politicians because of its potential use in the fight against lynching in the United States. As Professor Carol Anderson documents in her book Eyes Off the Prize, one of Eleanor Roosevelt’s less celebrated roles was to work against any enforcement powers for UN human rights bodies and thus assure Southern Democrats that racial segregation had nothing to fear from human rights.
Under a deal made by the Eisenhower Administration, the United States would for forty years refuse to ratify a single one of the human rights treaties it had helped to inspire. When some treaties, such as the Covenant on Civil and Political Rights, were finally ratified in the 1990s it was with the explicit condition that, absent specific legislation, these treaties could not be enforced in domestic courts. This policy of “US exceptionalism” effectively deterred civil rights and social justice organizations from taking advantage of the language, laws, methodologies, mechanisms, possible alliances and unifying vision offered by the international human rights framework and movement. American-based human rights organizations put most of their focus on every country except the United States, thus reinforcing the view that human rights were of relevance only to other countries.