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Human Rights and the US Constitution
This essay originally appeared in " The Next 25: A Collection of Essays on the Future of Human Rights ."
The 75th anniversary of the Universal Declaration of Human Rights (UDHR) is an opportunity to redouble our commitment to its principles worldwide. For those individuals and organizations whose focus is human rights within the United States, we are called to do two things. First, rather than cede the US Constitution to powerful forces who would use it to turn back the clock, we must embrace a vision of this founding document as a vehicle to protect and advance human rights. And second, rather than retreat or only play defense, we must deploy a concerted strategy at the local, state, and federal level to realize that vision.
The UDHR and the US Constitution were each born following a war – World War II and the US Revolutionary War, respectively. They are different in purpose, scope, and application, but what they have in common is an articulation of core principles of human rights.
The drafters of the UDHR sought to articulate and define an exhaustive list of fundamental human rights that all countries should work to protect and uphold. A number of these rights are also protected in the US Constitution, particularly those classified as civil and political rights. These rights were initially spelled out in the first 10 amendments, known as the Bill of Rights. They were then expanded upon in the Reconstruction Amendments, which abolished slavery, provided equal citizenship, and secured the right to vote without regard to race after the Civil War; and the 19th Amendment, which secured women’s suffrage.
Despite this strong legal framework, the story of human rights in the US is not one of linear progress. Indeed, following each expansion of constitutional and legal rights to protect more people, powerful reactionary forces have turned the laws of the country – and the Constitution – against human rights. We are facing such a backlash today, particularly from the US Supreme Court and multiple state governments which often undermine fundamental rights through discriminatory laws, policies, and court rulings.
As human rights advocates work to counter this harsh reaction, it can help to remember that it has happened before, and that activists have overcome it. At one of the lowest points in our country’s history, courts and elected leaders embraced the Constitution as a force for slavery. Frederick Douglass countered them head on in his powerful 1860 speech, “The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery?” Instead of letting pro-slavery forces co-opt the Constitution to justify heinous abuses, Douglass recast it as an anti-slavery document. The freedom movement of which he was a part leveraged this reframing to maximum advantage, and eventually succeeded in amending the Constitution to bar slavery.
Undeterred by these developments, reactive forces responded by applying the Constitution to embrace segregation ( Plessy v. Ferguson ) and other forms of discrimination, and to prioritize the rights of property and corporations over those of workers or the public ( Lochner v. New York ). But the forces allied with the Constitution as a force for freedom and equality also refused to relent, securing a series of major court victories in the 1950s and 1960s, and enacting the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
As modern political forces seek to once again turn the Constitution away from its true purpose – to uphold the rights of every person to freedom and equality – human rights advocates must follow Douglass’ lead by articulating a rights-based vision of the document and deploying a strategy to ensure that vision prevails. Four areas in particular warrant attention: equality, migrants’ rights, free and fair elections, and economic rights. As noted below, the UDHR protects each of them, often with language that extends beyond that of the US Constitution and relevant laws.
Equality: In recent years, the US Supreme Court has moved to a definition of equality under the law that makes it harder and harder to consider race as part of the remedy to discrimination. In some instances, the Court has also elevated religious freedom as granting individuals a license to discriminate. The Supreme Court has reversed a nationwide right to abortion, which is critical to equality, privacy, and bodily autonomy. The UDHR states that “All human beings are born free and equal in dignity and rights,” affirms that everyone shall enjoy the rights and freedoms of the declaration “without distinction of any kind,” and articulates equality before the law.
Migrants’ rights: Upholding the rights of migrants and asylum seekers coming to the US is among the most pressing human rights issues we face today. The entire UDHR is about the rights of all persons, without regard to national origin or citizenship, and states that “Everyone has the right to recognition everywhere as a person before the law.” This simple sentence echoes the US Constitution’s 5th and 14th amendments, which extend fundamental rights to due process and equal protection to all persons, and not just citizens, throughout the country. Article 14 of the UDHR is even more specific, protecting the rights of people seeking asylum.
Free and fair elections: Widespread voter suppression and attempts to undermine election results (as evidenced through the events leading up to Jan. 6, 2021) pose a real threat to the human right to democratic participation and fair elections. The UDHR states that “[t]he will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Economic rights: The UDHR goes farther than the US Constitution to name a range of economic, social, and cultural rights. As one example, the UDHR specifically names the right to housing. The US would do well to do the same. Cities and states should prioritize offering shelter and permanent housing, rather than fines and arrests of unhoused people who have nowhere to go. Our homeless crisis is also tied to other issues of systemic inequality, with Black and Indigenous people far more likely to be homeless as a result.
In the above and other areas, human rights in the US face threats from courts that may undermine the constitutional protections, or from elected officials who seek to attack vulnerable people for their own political advantage. In response, human rights advocates must unite to mount a strategic defense that reclaims the Constitution as a human rights document. To this end, we must continue to go to court, including federal courts in which we invoke the Constitution or federal laws, and increasingly, state courts where we can reframe state constitutions as charters of human rights. At the same time, we must press forward in our efforts to secure human rights directly through law, with the enactment of stronger local, state, and federal legislation. Throughout these efforts, we must exercise the most basic of rights: our right to free expression and assembly to participate in the decisions of our government.
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