48 Pages Posted: 19 Oct 2013 Last revised: 13 Apr 2015
Date Written: 2014
Compared to other Western democracies, references to “human rights” are rare in domestic American law. A survey of landmark Supreme Court cases reveals that both conservative and liberal Justices made no mention of “human rights” when addressing fundamental questions: racial segregation, the death penalty, prisoners’ rights, women’s rights, children’s rights, gay rights, and indefinite detention at Guantanamo. This absence illustrates a broader societal trait. In the United States, “human rights” commonly evoke foreign problems like abuses in Third World dictatorships — not domestic problems. By contrast, human rights play a relatively important role as a domestic principle in Europe, Canada, Australia, and New Zealand. Diverse legal, political, sociological, historical, and normative factors shed light on why human rights have hardly made headway as a domestic principle in America.
The disinclination to frame domestic problems as human rights issues or to consider humanitarian questions per se helps explain why modern-day America has a worse human rights record than other Western democracies in various areas, including criminal justice, the “War on Terror,” and access to affordable health care. America notably has the highest incarceration rate worldwide, is the only Western democracy to retain the death penalty, and has openly tortured alleged terrorists. In addition, it is the sole Western nation to lack universal health care, which is essentially considered a human right elsewhere in the West.
The relative absence of human rights as a principle in contemporary American law is particularly striking given that the United States have made substantial contributions to the development of individual rights since becoming the first modern democracy to emerge from the Enlightenment in the 18th century. American leaders like Franklin Roosevelt, Eleanor Roosevelt, and Martin Luther King also played an active role in promoting the principle of “human rights” as it gradually emerged into a major international movement. If human rights have not achieved meaningful recognition as a domestic legal principle in the United States, it partly reflects the contradictions of American society.
Keywords: human rights, U.S. constitutional law, U.S. Supreme Court, international law, comparative law, death penalty, terrorism, Guantanamo, torture, women's rights, children's rights, gay rights, health care, social and economic rights, racial segregation, treaties, obamacare, affordable care act
Suggested Citation: Suggested Citation
Jouet, Mugambi, The Exceptional Absence of Human Rights as a Principle in American Law (2014). 34 Pace Law Review 688 (2014) . Available at SSRN: https://ssrn.com/abstract=2340955