Yesterday, the Boston Globe published my piece proposing the creation of a new national office dedicated to the protection of civil and human rights. I wanted to give a little more context to the idea here, beyond what the op-ed format allowed.
The basic idea is that we need a single national figure to instantiate rights and defend them consistently. For a variety of reasons, our existing political-legal structure fails to do this robustly and consistently. Enforcement of civil and human rights is fractured among multiple bodies with narrow mandates (U.S. Department of Justice, U.S. Commission on Civil Rights), all of which are captured by party politics. Those in the trenches know how much a general commitment to rights, along with which rights to promote, can vary wildly depending on which party controls the White House. Amicus briefs offer only an ad hoc solution, because such writings are driven by interest group concerns, which can be quite distorting, and don’t carry the kind of institutional weight that government briefs do (if they are read at all by judges, as opposed to their clerks). All of these factors reinforce the idiosyncratic way in which relevant law, including international and comparative law, is presented to jurists.
Historically, presidential agendas have at times aligned with the goal of promoting civil or human rights. But case study after case study underscores how challenging this can be. The bureaucratic politics, party dynamics, and reputational hurdles can be daunting to navigate for anyone who might want a president to take vigorous action on behalf of individual rights.
The idea I have proposed is adapted from one presented by a group of experts based at the University of Chicago in the immediate post-World War II period. At the time, the group–led by the visionary Robert Maynard Hutchins (Chancellor of the University of Chicago and former Dean of Yale Law School) and the fiery Giuseppe A. Borgese (professor of Italian literature)–hoped to inspire the creation of a world constitution. Many later found the overall project too utopian. But whatever one thinks of such strong internationalist proposals, the project allowed Americans to reflect deeply on what ailed American constitutional self-governnance.
Perhaps the most penetrating critique that emerged from the working group’s many meetings involved separation of powers. They believed Americans had become slavish followers of Montesquieu, by insisting that institutional functions had to be strictly distinguished in the name of ensuring political liberty. But strict separation was a disaster: American politics had been consumed by paralyzing party politics and bureaucratic dysfunction, utterly incapable of dealing with urgent problems. Members of the Chicago group turned separation of powers orthodoxy on its head by offering reforms that retained some measure of institutional distinctiveness, but also dramatically increased the overlap of functions. For example, they thought it wise to give a president explicit constitutional authority to initiate legislation and to serve as Chief Justice of the Supreme Court.
These mid-century reformers felt comfortable injecting greater energy into government in part because they had a strong belief in rights. The Tribune of the People idea encapsulates that commitment, as it was intended to be an office charged with defending “the natural and civil rights of individuals and groups against violation or neglect” by government. The Chicago group tried to design an office that would “neither be a duplicate or retainer of the President in office, a Vice-President in disguise, nor his systematic heckler and rival.” A Tribune should be “truly the spokesman for real minorities, not the exponent of a second party.”
In a sense, other countries heeded this call, while Americans have largely forgotten the conversation. Today, there are a number of analogues worth studying. Countries that have a national figure dedicated to the enforcement of rights include Albania, Argentina, Armenia, Azerbaijian, Bulgaria, Columbia, Costa Rica, Estonia, France, Guatemala, Norway, Peru, Poland, Portugal, and Serbia. Each of those countries has a Defender of Rights, Commissioner for Human Rights, or Chancellor of Justice. There exists a U.N. High Commissioner for Human Rights, who recently weighed in on Oklahoma’s bungled execution by lethal injection, but has no real power to influence rights development here.
So it seems it is well past the time to consider whether we are doing all that we can institutionally to protect civil and human rights.