Human Rights and Constitutional Democracy

16 Pages Posted: 4 Aug 2017 Last revised: 3 May 2018

See all articles by David L. Sloss

David L. Sloss

Santa Clara University - School of Law

Date Written: August 1, 2017


This essay reviews Professor Jamie Mayerfeld's book, The Promise of Human Rights. I am sympathetic to the broad contours of Professor Mayerfeld’s argument. Nevertheless, this essay challenges portions of his account. Part One addresses the topic of international oversight. Mayerfeld makes a powerful theoretical argument in support of his claim that increased international oversight could help strengthen human rights protections in the United States. Here, though, I think his account omits some important information and gives insufficient weight to current political realities. Part Two focuses on what Mayerfeld calls the United States’ “self-exemption policy.” In brief, this is the U.S. policy of refusing to ratify most human rights treaties and of ratifying other treaties subject to reservations, understandings, and declarations that limit the domestic effect of ratified treaties in the United States. I agree with much of his critique of the self-exemption policy. Even so, Part Two contends that there is a significant tension between the self-exemption policy and Mayerfeld’s defense of the democratic legitimacy of international human rights law because the self-exemption policy exacerbates the tension between majoritarian democratic principles and the domestic enforcement of international human rights norms.

Keywords: Human Rights, Constitutional Democracy, Democratic Legitimacy, International Oversight, Treaty Reservations

Suggested Citation

Sloss, David L., Human Rights and Constitutional Democracy (August 1, 2017). 39 Human Rights Quarterly 971 (2017); Santa Clara Univ. Legal Studies Research Paper, No. 2017-10. Available at SSRN:

David L. Sloss (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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