This post was written by CGJ Academic & Administrative Director S. Ernie Walton. Click here to read Ernie’s post on Citizenship Day >
Today is Constitution day. It was on this day that the delegates to the Constitutional Convention signed our great Charter. While perhaps not apparent at first glance, the United States Constitution embodies the very principles that the Center for Global Justice
exists to advance: human rights and the rule of law.
As the several States decided to form a Union, they needed to figure out how to create a government that could fulfill its functions without infringing on the rights of the states and the rights of individuals. Contrary to popular belief, however, the primary way in which our Founders sought to protect the states and the rights of individuals was not through the Bill of Rights. The Bill of Rights was an afterthought, added after the adoption of the Constitution by the First Congress. How, then, did the initial Constitution protect individual liberty without a Bill of Rights? The answer is through constitutional structure—separation of powers and checks and balances.
By separating power and allowing the separate powers (the three branches of government) to check each other through overlapping functions, tyranny would be eliminated. The esteemed Montesquieu stated it best: “Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Montesquieu, The Spirit of the Laws, vol. 1 (1748). In that same vein, the Supreme Court stated:
“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. . . . So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. It was at Madison’s insistence that the First Congress enacted the Bill of Rights. It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theory now renders separation of powers of lesser importance.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (internal citations omitted).
To human rights advocates today, governmental structure as a means to advance liberty is often an afterthought. Today, human rights advocates around the globe advance the idea that the best way to protect human rights is through a bill of rights in a national Constitution, new legislation, or ratification of another human rights treaty, guaranteeing individual “right” after individual “right.” These “paper” rights, say the advocates, are what will really protect individuals.
While paper (constitutional) rights are certainly needed, they are meaningless if they cannot be secured. (And if they cannot be secured, they are not only meaningless, but actually harmful to human rights themselves. See Craig A. Stern, Human Rights or the Rule of Law –The Choice for East Africa?
, _ Mich. St. Int’l L. Rev. _ (forthcoming 2015).)
To secure individual rights, a nation must have a strong rule of law. The government itself must be made to follow the laws and uphold the rights of the people. But humans in power don’t just willingly follow the law. No, as sinful beings, humans in power often exploit that power at the expense of individual rights. Our founders understood this well, and for that reason they created check upon check in every power in the Constitution. As James Madison stated in Federalist 51:
“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist no. 51 (James Madison).
What, then, leads to the difference in strategies of advancing human rights through structure/separation of powers vs. human rights legislation? A person’s belief about human nature. If humans are sinful, the only way to effectively guarantee human rights is to “obligate the government to control itself.” But if government is filled with good-natured humans who really want to protect people, we simply need to legislate more human rights guarantees so the government can secure those rights and protect individuals. Obviously the latter is a flawed approach. Our Constitution is based on the belief that humans are sinful, and human rights advocates today would do well to remember this basic fact. Join with us in celebrating our Constitution and the worldview it embodies.
by Ernie Walton