Journal Article•
Universal Human Rights and Constitutional Change
TL;DR: In this paper, the authors argue that the United States has a tradition of federal constitutional protection for fundamental human rights, dating back to adoption of the Bill of Rights in 1791.
Abstract: Many Americans believe that the United States has a tradition of federal constitutional protection for fundamental human rights, dating back to adoption of the Bill of Rights in 1791. That belief is mostly wrong. For most of U.S. history, protection for fundamental rights depended primarily on state law, not federal law. This article documents the transfer of regulatory authority over human rights from the states to the federal government, which we call the “federalization” of human rights. Before 1930, state governments exercised primary or exclusive regulatory authority for most fundamental rights. Federalization occurred in two phases: from 1930 to 1947 (the New Deal revolution) and from 1948 to 1976 (the “human rights” revolution). We show that the period from 1948-76 was the critical period for federalization of human rights law in the United States.
This article also examines two other processes that occurred in the same time period: the advent of modern international human rights law (the “internationalization” of human rights) and the incorporation of human rights norms into national constitutions in numerous countries (the “constitutionalization” of human rights). The power of ideas is an important factor that contributes to legal change. The period from 1948 to 1976 witnessed the global diffusion of a distinctive set of ideas that we call the “political morality of human rights.” We contend that the global diffusion of human rights morality was an important causal factor that contributed to the internationalization and constitutionalization of human rights, as well as the federalization of human rights in the United States.
Conventional wisdom depicts the United States as insulated from transnational forces that led to the global diffusion of human rights norms. This article contends that the conventional wisdom is wrong. The global diffusion of human rights morality in the decades after World War II contributed to the development of a new tradition of robust federal protection for human rights in the United States.
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01 Nov 2021
TL;DR: In this paper, the authors show that judicial dialogue among the regional human rights courts and the Human Rights Committee has an additional effect: it contributes to the construction of a rights-based global constitutionalism.
Abstract: International courts regularly cite each other, partly as a means of building legitimacy. This study aims to show that judicial dialogue among the regional human rights courts and the Human Rights Committee has an additional effect: it contributes to the construction of a rights-based global constitutionalism. Judicial dialogue among the human rights courts is purposeful because the courts see themselves as embedded in, and contributing to, a global human rights legal system. Cross-citation among the human rights courts advances the construction of rights-based global constitutionalism in that it provides a basic degree of coordination among the regional courts. The jurisprudence of the United Nations Human Rights Committee (HRC), as an authoritative interpreter of core international human rights norms, plays the role of a central focal point for the decentralized coordination of jurisprudence. Using original data, this study demonstrates the extent of citations among the regional human rights courts and from them to the HRC. The network of regional courts and the HRC is building an emergent institutional structure for global rights-based constitutionalism.
11 citations
01 Nov 2020
TL;DR: The European Court of Human Rights serves as a point of reference for the African and Inter-American human rights systems, though these also cite each other as mentioned in this paper, and the transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.
Abstract: In A Cosmopolitan Legal Order, Stone Sweet and Ryan suggest that ‘from the standpoint of global law, we see that the [European Court of Human Rights] has taken its place in a pluralist, rights-based international order, as one trustee of this global order’. This article is a preliminary attempt to evaluate signs of movement toward global rights review. A multi-level charter of rights exists in the network of international and regional human rights treaties and in national constitutions. An incipient structure of global rights review exists in the form of the regional human rights courts, which see themselves as trustees of the larger global human rights system. Judicial dialogue among the regional courts allows for informal, decentralized coordination among them. The European Court of Human Rights serves as a point of reference for the African and Inter-American systems, though these also cite each other. Transregional judicial dialogue establishes a rudimentary, informal and decentralized mechanism of coordination among bodies that exercise a review function in the multi-level system of international human rights.
2 citations